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New Clause 3

Volume 961: debated on Tuesday 23 January 1979

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Amendment Of Social Security (Invalid Care Allowance) Regulations 1976

'The Social Security (Invalid Care Allowance) Regulations 1976 shall be amended by adding the following sub-paragraph at the end of Regulation 6:—

'(3) The relationships of "husband" and "wife" as are specified in sub-paragraph (1) of this regulation shall be taken to include common-law husband and common-law wife respectively, provided that any allowance payable by reason of this sub-paragraph only shall be payable out of the National Insurance Fund'.".—[Mr. Newton.]

Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

I believe that I can explain the new clause fairly briefly. Those who have studied the Amendment Paper will have seen that my new clause concerns the invalid care allowance. I can sum up its purpose very quickly. It is designed to allow the payment of an invalid care allowance to a common law husband.

The House will be aware of the purpose of the invalid care allowance. It is a benefit for men and, at present, only for single women of working age who cannot go out to work because they are needed at home to care for a severely disabled relative who is receiving an attendance allowance. A whole range of issues which arise on this allowance—in particular the fact that it is not paid to married women—are controversial and could be discussed. My new clause concentrates on a much narrower point.

I recognise that the phrase "common law" is not particularly elegant or attractive. But I think we can all agree that there are many relationships which are enduring, stable and worth while and which can only be described by the use of that phraseology. They are, almost by definition, likely to be such enduring and worthwhile relationships in a case which would be covered by my new clause, which is one where one of the partners is loking after the other—the husband is looking after the common law wife in circumstances where she is very severely disabled.

I should acknowledge at once, if only to remind the Minister of the correspondence that we have had, that this matter arose in my mind because of a constituency case which came to my attention. For obvious reasons, I do not want to name the constituent, but I think it might be helpful if I briefly outline the circumstances.

When my constituent came back from the war—now some considerable time ago—his wife had gone and was subsequently untraceable. Since then he has lived with his present partner, for a period of some 32 years. Ten years ago this second partner had a very severe stroke and was substantially paralysed and severely disabled. My constituent later found that he was forced to give up his work in order to care for her.

In due course, becoming aware of the provisions for an invalid care allowance—which appeared to cover circumstances such as his, because the lady is in receipt of an attendance allowance—my constituent applied for an invalid care allowance, only to find that because they were not legally married he did not qualify. That is a point which caused me great concern.

I accept at once that it is almost certain, in the circumstances as I know them, that my constituent and his partner could get married because present divorce law would almost certainly allow the matter to be sorted out. But they have been living in the same community for a long time, with most people thinking that they are already husband and wife. They have a daughter who is married. I am not sure whether she knows about the relationship, but probably her relatives and friends do not know of it. Very understandably, many people are shy about such matters. Some people would be shy, and some would not.

At any rate, I feel that everybody in the House will understand why, after 32 years, this couple do not particularly want to go through the formalities of a divorce and remarriage, especially if it became known to their friends and relatives in the area. Therefore, they find that they cannot get the invalid care allowance. The man applied for it, and he was refused. He appealed, and that was refused. He came to me, and I wrote to the Minister. The Minister replied explaining, very courteously and sympathetically, why my constituent had been refused this allowance.

It is perfectly clear that, under the existing regulations, the man was rightly refused. It may perhaps be helpful to the House if I read the list of qualifying relationships, as it were, from the Social Security (Invalid Care Allowance) Regulations 1976. This comes from part of paragraph 1 to regulation 6. The people who can qualify are:
  • "(a) lineal descendant or ascendant in a direct line;
  • (b) husband, wife, step-father, step-mother, step-son, step-daughter, brother, sister, half-brother, half-sister, step-brother, step-sister, aunt, uncle, nephew, niece; or
  • (c) father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law or daughter-in-law."
  • That regulation seems to be pretty widely drawn, but it is clear that it does not include what, for the purpose of the new clause, I have been forced to call a common law husband.

    In cases such as that of my constituent, which I have described—and I have no doubt that other hon. Members could think of comparable cases or cases with somewhat different circumstances but leading to the same result—my argument almost makes itself. It seems patently unfair that this allowance should not be available to them.

    I should like to make one further point. Having read the definitions contained in subsection (1), those who have studied the new clause assiduously will see that what I have actually sought to add is a subsection (3). It may have occurred to some to wonder precisely what sub-paragraph (2) is in paragraph 6 of the existing regulations. Perhaps I may also read that to the House, because that sub-paragraph says:
    "Any such relationship as is specified in paragraph (1) of this regulation"—
    that is the one from which I have already extensively quoted—
    "shall be taken to include also any such relationship as would have subsisted if some person born illegitimate had been born legitimate."
    Unless I have gravely misunderstood the matter, what that means is that the daughter of my constituent and his common law wife could qualify for an invalidity care allowance because she is deemed to be legitimised under these regulations, but the father of that daughter cannot qualify as he is not legitimised for this purpose.

    That seems to transform something which, in common humanity, I would think unfair into something amounting almost to a breach of natural justice. I hope that Ministers will very seriously consider putting this matter right in the terms that I have suggested in the new clause.

    Has the hon. Gentleman made any estimate of the cost of implementing the new clause? I have great sympathy with the idea behind the new clause, but does he think that the difficulty would be overcome by a simple statutory declaration, without the public knowing anything about it at all, it being a matter between the parties involved and the Department of Health and Social Security?

    I am grateful to the hon. Gentleman, in this matter as in many others, for his helpful suggestions. I shall certainly put them to my constituents. I should be grateful for the Minister's comments. I had not formed any estimate of the cost. However, in this day and age, especially as for many people divorce is much easier than it used to be, I should have thought that the numbers affected by this difficulty must be tiny and that the cost must be verging on the insignificant. However, perhaps Ministers can give us some estimate. Obviously, this is something that will have to be taken into account. Unless the cost is more than a few tens of thousands of pounds, I believe that here we have something that is clearly unjust, and if there may be ways around the difficulty we should seek to put right something which seems so manifestly unfair.

    I support the hon. Member for Braintree (Mr. Newton) in his new clause. I seek from the Government an assurance that if, perhaps for some technical reason, they feel that the new clause is defective, they will take steps in another place to bring forward an appropriate amendment. I am astonished at the story that the hon. Gentleman has told this evening—that what are called common law relationships prevent people from qualifying for benefit.

    I ask a very difficult legal question of the Minister. I do not expect a reply tonight, but I hope that he will write to me about it. He will be aware that in Scotland, where we do not necessarily call people common law husbands and wives, a marriage by habit and repute is a perfectly legal marriage for all sorts of ancillary legal matters, such as accession and so on. Therefore, I wonder how far in Scotland the parties to marriages of habit and repute would find themselves disqualified in the circumstances that the hon. Gentleman described.

    I go further than the hon. Gentleman and say that many people today live together as man and wife without either the blessing of the Church or the legal sanction of a marriage in a registry office. If they live together as man and wife and pay taxes as man and wife, surely they are entitled to benefits as man and wife. It seems as simple and logical as that. If there are difficulties about the qualifying test, the fact that they live together and pay taxes on the basis of being husband and wife, possibly with children, ought to satisfy the test for benefit.

    I should add one barbed note about acceptance of the new clause. If the DHSS carries out investigations and concludes that a couple are living together as man and wife—the old question of the co-habitation rule in relation to benefits—and if it is good enough for the Department to say that it means that people are living together and therefore the husband is required to contribute, where a marriage clearly exists, whether or not legally sanctioned or blessed by the Church, the corollary is that the parties should benefit from the excellent scheme which the State has made available.

    9.45 p.m.

    I also rise to urge the Government to look sympathetically at this proposal. I do so partly because of the cohabitation rule, since people who are living together are deemed, for one purpose, to need to be treated as though they were legally married. I believe that that should apply in this case also.

    My hon. Friend the Member for Aberdeen, North (Mr. Hughes) mentioned taxation. I would point out that at an earlier stage in their relationship, when the wife was healthy and perhaps working, such a couple would be paying more tax than a legally married couple, since they would not be entitled to the married man's allowance. Therefore, there can be no argument that they will not have paid their fair share when they were both in good health.

    I do not believe that this proposal would cost much. If it does, it means that many men are sticking by women in these circumstances and caring for them in ways that couples who are legally married might find burdensome. I believe that the Government should look sympathetically at this proposal, and I urge them to do so.

    If the Government do adopt such a new clause, they might call it the "Lee Marvin clause".

    Let me say straight away that we shall look sympathetically at everything that has been said by the hon. Gentleman and by my hon. Friends in keeping this matter under active consideration.

    The invalid care allowance is a non-contributory benefit which is available to people of working age but who cannot work because they have to stay at home to care for a severely disabled relative. In this context, "relative" means wife, parent or grand-parent, child or grand-child, sibling or half-sibling, aunt, uncle, nephew or niece, certain step-relatives and certain in-laws. The benefit is not available to a wife caring for her husband, or companion if they are not married.

    When ICA was introduced in 1976, the Government said that they would seek to extend coverage to those caring for non-relatives once experience had been gained of dealing with claims from relatives.

    We estimate broadly that there could be between 200 and 300 men who would qualify under the new clause proposed by the hon. Gentleman. The gross cost of paying ICA to them would be about £150,000 a year. But, since most such men would be receiving supplementary benefit, the net cost would be lower, though I am not able to provide precise figures tonight. Extending the benefit to all those caring for non-relatives would, however, increase expenditure on the benefit by an estimated £1½ million a year at current benefit rates, though there would be some offsetting savings on supplementary benefits. Such extra expenditure could only be afforded if extra resources became available. Even then it would have to compete with the many other pressing claims for additional expenditure.

    The amendment seeks to extend invalid care allowance to a man who is caring for a woman to whom he is not married while they are living together as man and wife, and I know that the hon. Gentleman has a particular constituency case in mind. The new clause is technically defective in two respects—first, for obvious reasons, it makes the benefit payable out of the national insurance fund, which is quite inappropriate, and, secondly, it amends paragraph 7 of the regulations instead of paragraph 6. But, more important, it would be invidious to extend the benefit to some persons caring for non-relatives and not to others. Essentially, the question—

    I am becoming a little confused, because my right hon. Friend appears to be explaining why he cannot grant a benefit which at this stage has not been asked for. As I understand it, this is a very limited proposal which would apply to a very limited number of people. My right hon. Friend used the phrase "actively consider". I should like him to define what he means by that. Are we to have a commitment that this will perhaps be amended in another place?

    I can give no definite commitment tonight. What I have said is that we shall sympathetically consider all that has been said by the hon. Gentleman and by my hon. Friends. My hon. Friend the Member for Chorley (Mr. Rodgers) says that there is no claim on behalf of non-relatives generally, but there is a very strong claim on behalf of non-relatives generally.

    We are here discussing a proposal that would help perhaps only 200 or 300 people. Nevertheless, I assure the House that there is a strong and persistent claim on behalf of non-relatives generally. There is also a claim that we should pay invalid care allowance to married women. That argument is pressed very strongly on the Government. What I said earlier is that in my very neglected area there are infinite claims against only finite resources. From his close association with me, my hon. Friend knows that I shall do whatever I can to see that what has been said is considered as sympathetically as possible.

    I was saying that it would be invidious to extend the benefit to some persons caring for non-relatives and not to others.

    I am worried about my right hon. Friend's line of argument. Of course, if the Government saw fit to extend this to non-relatives as such, I am sure that hon. Members would be very pleased. But the specific point we are now discussing does not relate to non-relatives but to people who have a very particular relationship which it is possible to define. On this small point I believe that we must press for an undertaking to come back with something specific in another place.

    I have by no means completed my argument on this point. I am in no way seeking to minimise the force of the case that has been presented tonight What I cannot do now is give a definite commitment. My hon. Friend the Member for Aberdeen, North (Mr. Hughes) has experience of these matters from his time in Government. He will know that what I am saying is based on consultations with colleagues. I have undertaken to reflect on what has been said tonight, in further consideration of this matter. However I must emphasise that there are claims from other non-relatives who might feel that their difficulties are as great as the difficulties about which we have heard.

    Essentially, the question is whether the particular category covered by the amendment should be helped in advance of non-relatives generally. Certainly, there will be some who will doubt whether it would be right to put this category ahead of the group as a whole. In these difficult matters it is also important to draw a line which can be readily understood by claimants and staff. To single out a particular category for special treatment could create a greater sense of unfairness among people who are excluded.

    Since principal legislation is not required, I would wish to seek the advice of the National Insurance Advisory Committee on any draft regulations which would be necessary. I take note of the hon. Gentleman's concern in this area and I can assure him that as soon as the availability of resources and other priorities allow we shall seek to extend coverage to those caring for non-relatives, including this group.

    In the light of my reply, I hope that the hon. Gentleman will agree to ask leave to withdraw his new clause. My hon. Friend the Member for Aberdeen, North rightly suspected that I could not tonight deal with the point about Scottish legal practice which he raised with me. I shall seek to arrange for him to have an answer as soon as possible.

    I must confess that I am worried about the mixing up of non-relatives in the legal sense with non-relatives in the emotional sense. I do not think that anyone can consider that when two people have lived together for a long time, and perhaps produced children, they can be classed as non-relatives, although technically under the law they are. I hope that my right hon. Friend will give this issue a great deal of sympathetic consideration, because if the view that he is now taking is that because some other people who might qualify will not qualify, by that criterion we should never have introduced the invalid care allowance at all.

    I have said as much to my hon. Friend. What I have made clear is that I shall take this matter back to colleagues. I am sure he will appreciate, and that the House as a whole will accept, that it will cause me no displeasure to be able to increase further expenditure on the invalid care allowance and on further improving the well-being of all disabled people. But I must say that if we advance provision for one group of people, inevitably other groups will say that their claims must be urgently considered. I gladly give the assurance that my hon. Friend has asked for, namely, that I shall seek to get sympathetic consideration of all that has been said by my hon. Friend and by the hon. Gentleman.

    May I comment on one or two of the technical points made by the Minister? I accept that it is not particularly appropriate to do this by primary legislation, as I have sought to do, but it was the only way open to me to raise it. The reference to the national insurance fund, as the House knows, and as the Committee upstairs knew, is the only way that such a proposal could be got within order on this Bill because of the restrictive financial resolution. So far as paragraph 7 is concerned, I believe that the Minister will find that in the up-to-date Amendment Paper the proper paragraph, No. 6, is referred to. Therefore, I think that that small objection would fall.

    The main point I would wish to make—I think that I would carry with me hon. Members on both sides of the House—is that I could wish that the Minister had been a little more willing to throw away his departmental brief in view of the specific point which has been raised and the sympathy that has been engendered throughout the House. The purpose of the new clause is not to extend the provision to all non-relatives. I can only say, as indeed other hon. Members have said, that I believe a very clear-cut distinction can be drawn, and moreover one which would be accepted by most non-relatives—a distinction between other non-relatives caring for a disabled person and a common law husband, especially in cases where that relationship has subsisted for a very long time. I suppose that we should be grateful for the relatively small mercy of the Minister saying that he will look very seriously at this. I hope he will feel able to go just a little further in encouraging me to withdraw the new clause by saying either, or both, of two things.

    First, I hope that he will seek the advice of the National Insurance Advisory Committee and, secondly, that he will make a further statement about this very small point when the Bill moves to another place, which I understand is likely to be in about two or three weeks' time. I cannot believe that the scale of the issue, or the expenditure, is such that it should not be possible to carry out some further consultation and come to a view while this Bill is still before Parliament and while we can still have a further opportunity to consider the matter. If I can have one or other of those undertakings, and preferably both, I would be glad to seek the leave of the House to withdraw the motion.

    I made it clear that we would want to seek the advice of the National Insurance Advisory Committee. We are often enjoined to do this automatically before we make changes. I gave a fair indication of our intentions in this regard. I said earlier that I could not give a definite commitment to accept the clause. I have said—

    It being Ten o'clock, the debate stood adjourned.


    That the Social Security Bill may be proceeded with at this day's sitting, though opposed, until any hour.—[Mr. Joseph Dean.]

    Question again proposed, That the clause be read a Second time.

    I have not kept slavishly to any brief. I have said that I shall seek to ensure that all that has been said tonight is sympathetically considered.

    On the understanding that what the Minister has just said is that he will refer the matter to the National Insurance Advisory Committee, I beg to ask leave to withdraw the motion.

    Motion and clause, by leave, withdrawn, drawn.