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Social Security (Inherited Serps) Regulations 2001

Volume 623: debated on Wednesday 14 March 2001

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8.2 p.m.

rose to move, That the draft regulations laid before the House on 26th February be approved [8th Report from the Joint Committee].

The noble Baroness said: My Lords, I hope that noble Lords will agree that these, too, are good news regulations.

We have discussed the subject of inherited SERPS on many occasions in this House. I should like to thank noble Lords for the way in which a constructive discussion has taken place all around the House. I think that noble Lords will accept that the Government have listened to the views expressed here, as well as to others outside the House. I believe that we have now found a solution which, although it will cost the taxpayer considerably more, is none the less workable and fair. That is due in no small part to the contributions of noble Lords. I address not only the Opposition Front Benches, but also the noble Lord, Lord Rix, and the noble Baroness, Lady Greengross, who would normally be present on the Cross Benches. However, I am delighted to see the noble Lord, Lord Rix, in his place. I suspect that he is here to encourage us and to take in the celebrations.

Noble Lords will be well aware of the problems that have arisen over inherited SERPS. I do not propose to go over that ground, except to say that, in 1986, the then Conservative government legislated to reduce the amount of SERPS that a widow or widower could inherit from their late spouse, a change that was due to come into effect in April 2000. But the change was not notified in DSS leaflets for 10 years. The leaflets were corrected in 1996, but there is evidence that, after 1996, in some cases, people continued to be given incorrect or incomplete information by DSS staff. The matter has been investigated by the Parliamentary Ombudsman, and the National Audit Office published a highly critical report in March 2000.

The DSS itself investigated the matter and, from 1999, began taking steps to put things right. We issued a bulletin to all staff and checked that all leaflets were revised. As a result of a proposal put forward by the noble Lord, Lord Rix, we amended the Welfare Reform and Pensions Bill, giving the Secretary of State some flexibility to modify the inherited SERPS arrangements. In March 2000 we announced the delay until October 2002 of the reduction to 50 per cent. We also put forward proposals for a new inherited SERPS scheme, on which we consulted.

During that consultation, representations were made that, although the scheme was better than none, there would still be unfairnesses and cliff-edge cases. As a result, on 29th November 2000, we announced an alternative approach which I shall now explain.

Quite apart from the problems of communicating the planned changes to the public, the original plans of the previous Conservative administration were seriously flawed. I do not take issue with the proposal that widows should receive half the original pension, but the proposal as envisaged in 1986 contained no transitional arrangements at all. There was a cliff-edge effect where the amount of SERPS that could be inherited was due to drop from 100 per cent to 50 per cent almost overnight. Most noble Lords would accept that that does not reflect good social policy.

The noble Lord, Lord Rix, among others, has been assiduous in pressing the case for existing pensioners to be exempt from the reduction. The main point was that current pensioners who were SERPS contributors between 1978 and recently did not know about the proposals and so did nothing and could do nothing about changing or inquiring into their SERPS position. We understood and agreed with that point. Our proposals, therefore, will completely exempt the spouses of existing pensioners from the reduction. They will continue to receive 100 per cent of SERPS.

We intend to go further. As well as protecting the spouses of existing pensioner couples, we shall also fully protect the spouses of those who are not yet pensioners, but who will reach state pension age by 6th October 2002. Furthermore, we will phase in the reductions in respect of those due to reach state pension age between 6th October 2002 and 5th October 2010, in recognition of the fact that the amount someone needs to save to make up for the reduction increases the closer they are to pension age.

The legislation to protect the spouses of those reaching pension age before 6th October 2002 is already in place. The regulations before noble Lords will provide the legislation for the phased reduction, protecting the spouses of people who will reach state pension age between 6th October 2002 and 5th October 2010. We consulted widely on these regulations with the Social Security Advisory Committee, the Social Security Select Committee, the Public Administration Select Committee, the Public Accounts Committee, the National Audit Office and the Parliamentary Ombudsman. Furthermore, we have been working closely with Age Concern and Help the Aged. Our proposals have been broadly welcomed.

Perhaps I may now explain in more detail this large item; it is a £12 billion item. For that reason, it is worth trespassing a little longer on the attention of noble Lords to explain exactly how these regulations will work.

The regulations will mean that where someone reaches state pension age between 6th October 2002 and 5th October 2010, when they die their surviving spouse will be able to inherit between 90 per cent and 60 per cent of their SERPS. The exact amount the surviving spouse will be able to inherit will depend on when between those dates their late spouse reached state pension age or would have reached state pension age had they not died.

For example, the surviving spouse of someone who reaches state pension age between 6th October 2002 and 5th October 2004 will inherit up to 90 per cent of their late spouse's SERPS. A surviving spouse of someone who reaches state pension age between 6th October 2008 and 5th October 2010 will be able to inherit up to 60 per cent. A taper has been put in place between the two. The schedule to the regulations sets out the details.

The problems with inherited SERPS originally arose through a failure, under the previous administration, properly to publicise the changes in the first place—even among the staff of the DSS, let alone the public. The department has learnt from those mistakes and we are determined to make sure that people are aware of and understand the new rules. The spouses of existing pensioners deserve to be reassured that their pension is protected. And people still of working age should get the information they need so that they can consider their position, armed with the facts.

Because people are affected in different ways, depending on their age, we will use different strategies for informing them. I shall welcome the views of noble Lords as to whether they feel that these strategies are adequate.

I shall turn first to current pensioners. The department is writing to all pensioners explaining that the spouses of existing pensioners are not affected by the reduction in inherited SERPS. Secondly, as regards people who will reach state pension age between now and 5th October 2002, we will also write to all of this group, again reassuring them that the spouses of people reaching state pension age between these dates are not affected. As far as concerns people within 10 years of state pension age, we propose to write to all those in the sliding scale group. Currently, we are exploring the options and taking steps to make sure that we can deal with follow-up inquiries.

Over and beyond all those individual letters, we are also currently running the comprehensive television "working dogs" campaign to raise awareness about pensions issues generally, and we are increasingly using modern methods of communicating with the public, such as the Internet.

I am satisfied that these regulations are ECHR compliant. They will mean that the rules on inherited SERPS are prudent, fair and, I think, very decent. The spouses of existing pensioners and of those close to pension age are fully protected and the changes are being phased-in for spouses of people who are due to reach pension age between 6th October 2002 and 5th October 2010, thus preventing the "cliff edge" effect of previous proposals.

Our objective has been to devise a system which will eventually reduce to 50 per cent the amount of SERPS which can be inherited, but in a way which is fair and which recognises the fact that the amount that someone needs to save to make up for the reduction, were they to be aware of it, increases the closer they are to pension age.

I hope that we have devised such a system. If we have, it is in no small part due to the contributions of your Lordships. I commend the regulations, in good heart, to the House. I beg to move.

Moved, That the draft regulations laid before the House on 26th February be approved. [ 8th Report from the Joint Committee].—( Baroness Hollis of Heigham.)

My Lords, I thank the Minister for that explanation. This matter has had a very long history, as I think a high percentage of noble Lords in the Chamber, including the Government Whip, who have sat through much of the proceedings will recognise. It has developed steadily as a result of the debates which we have had, and a great deal of progress has been made. I certainly join with the Minister in paying tribute to the noble Lord, Lord Rix, and to the noble Baroness, Lady Greengross, who have been in the forefront of trying to sort out the matter.

It is a sad story. As the noble Baroness said, it is now likely to cost some £12 billion to put right. I still regret that we have not been able to find out who is responsible so far as concerns the Civil Service's part in the matter. However, what the Government now propose will go a considerable way towards putting things right.

The Government's original plan was not satisfactory and was heavily criticised on all sides, not only in this House but by the Social Security Advisory Committee, which said that the scheme as presented was not operationally viable and that it was a "cheat's charter" and an invitation to fraud, and so on. We on this side of the House were certainly very glad when, in November 2000, the Government brought forward their new plan. However, there are some points that we need to clarify.

I have a confession to make. Two days ago I received a letter from the Department of Social Security—

8.15 p.m.

My Lords, as did my noble friend Baroness Blatch. I am surprised that the department wrote to the noble Baroness, who is much younger than I.

The letter concerned widows' inherited SERPS and affected those in the SERPS scheme. But I am not, and never have been, in the SERPS scheme; I was in a contracted-out scheme. It would appear to be the case that the department is now sending these letters to everyone regardless of whether or not they were in the SERPS scheme. This is likely to cause confusion to those who are not eligible and they may well write in and ask, "What is this all about? I should like some money". It also suggests that the department simply does not know which pensioners are contracted out and which pensioners are contracted in. That seems to be a rather worrying point.

Having said that, the new scheme which the Government announced in November is certainly an improvement on the previous scheme. However, the noble Baroness will remember that in previous debates on this issue I raised the question of the points made by the ombudsman. I criticised him for the very long time that it took him to produce details of four sample cases and for the fact that his report on the subject was rather strange; it was written almost entirely with reference to a letter he had written to the Permanent Secretary at the department, rather than in a more normal format. The letter is dated 9th May, so it is at the in-between stage.

He did not express in the letter any view as to the merits of the case. He said:
"in my report, I reserved my position on redress, confining myself to some general comments, and why I undertook to offer advice to Parliament, once the details were known".
He went on to say:
"It is for the Government, not for me, to produce detailed proposals; and I will comment on them when they are produced"—
and he stated that it would be ultimately for Parliament to decide and so on. I am not the least bit clear whether the ombudsman has now commented and, if so, what he said about the present scheme.

One particular aspect of what he said previously in regard to the onus of proof was very clear. He said that in his view the onus of proof should be reversed as to whether someone had been misled and whether they had, as a result, suffered loss. Indeed, the Minister will remember that I moved an amendment at an earlier stage suggesting that at least the first part of that requirement should not hold; that it should be assumed that people had been misled and should be left to prove whether or not they had suffered loss. That amendment was carried in your Lordships' House but reversed in another place.

As I understand it, there is still a group of people who may have been misled, who may have suffered loss and who are not now covered by the Government's proposals. It would seem that the Government are changing their view with regard to the reversal of proof. While obviously a large percentage of the people affected will be covered by what the Government now propose, there would seem to be some people in certain age groups who may still feel that they have been misled and have suffered a loss as a result. Is it the case that if any claims of that kind are put in, the normal procedures for compensation referred to in the ombudsman's report will not apply, but the onus of proof will be reversed? If people in this particular group wish to pursue the matter—there are probably only a small number of them and it is impossible to say whether any of them will wish to pursue the matter—will they be allowed, as the ombudsman originally suggested, to have the onus of proof reversed in regard to any claim that they may make?

I am slightly surprised that in her opening remarks the Minister did not refer to the 5th report of the Public Accounts Committee on Draft Social Security Inherited SERPS Regulations 2001 dated 12th February. It is an important report and I expected the noble Baroness to refer to it.

The Public Accounts Committee raised a number of points which it may be helpful for us to consider and to which the noble Baroness may wish to respond. The committee rightly said, as we have, that it welcomes the proposals which, to a considerable extent, address earlier concerns. That is fair enough. The report then goes on to say at paragraph 6(ii):
"The proposals also provide some comfort to those approaching state pension age, who are likely to have less opportunity to make adjustments"—
and so on. It then goes on:
"Nevertheless, the success of the proposals will depend on the extent to which those within the taper"—
referred to by the noble Baroness in her opening remarks—
"are in practice able to secure appropriate top-up provision should they so wish, and without incurring disproportionate costs".
The PAC gives a specific example of someone who is four years away from retirement, stating that it would expect the department to assess the likely impact on those affected by this situation and (paragraph 17) whether they would be able,
"to obtain cover through life assurance to provide a guaranteed sum on death equivalent, to 20 per cent of their pension, and at what cost".
The committee states again (at paragraph 18) that it recognises that this will provide automatic protection in full or in part for a number of people, but that,
"the draft regulations do not provide details of the proposed compensation arrangements, and it will be essential for the Department to set clear criteria for eligibility for compensation",
and that the department should take into account various factors. The paragraph continues:
"We also expect the Department to continue to recognise that the onus of proof rests with them to demonstrate that an individual was not misled by their advice".
That is the point I was making a moment ago.

Perhaps I may refer to one other passage in the PAC's report. The committee points out that the department accepted its previous recommendation on the importance of people being able to claim redress after most claims have been received, but that the committee remains,
"convinced that, to achieve equity and fairness for all those who may suffer loss as a result of misleading advice from the Department, people are not prevented from seeking compensation by an arbitrary cut-off date".
All these points are important. As I said, we have made considerable improvements in the situation, which, as the noble Baroness rightly pointed out, arose initially as a result of problems caused when the previous government did not publicise these matters as they should have done; indeed that was continued subsequently, as the Minister knows.

We are making a great deal of progress. However, it would be helpful, in the light of this instrument—which, as I understood it, sought to finalise in effect what the situation now is—if that could be clarified. A great deal of publicity will be necessary if people are not to find themselves in the same situation, which seems increasingly to happen at present, of under-spend on benefits which the Government say they will increase or provide, but which in the event are not taken up to the extent that they ought to be.

My Lords, parliamentary success stories are not so common that we can afford to let one go by without celebration. This is clearly a parliamentary success story. The Minister has generously thanked other Members of this House for helping to bring it about. I think the Minister must consent to receive thanks as well as to give them. A good House tends to come with a good Minister, and that has certainly been true in this case.

The Minister has fought her corner. I do not think that the noble Lord, Lord Higgins, or I would dispute for a moment that she did so with great vigour. But never for one moment did she continue to defend the indefensible. Being able to do those things together is one of the marks of a good Minister.

The Government improved their offer in ways which are entirely welcome, and they did so as a result of arguments most of which I have heard the Minister advance in this Chamber in response to amendments moved by the noble Lord, Higgins, by me, or by my noble friend Lord Goodhart. I wonder whether the Minister has addressed those arguments to other people as well. I speculate no further, but she may possibly deserve a great deal more credit in this story than anyone will ever know in public.

I am also extremely pleased to see the noble Lord, Lord Rix, in his place. He and the noble Baroness, Lady Greengross, have made a long and distinguished contribution on this subject. The noble Lord, Lord Rix, took the matter up with a tenacity which has done a great deal to keep it on the agenda right through to the point of completion. We are all very much in his debt.

It is also vital to note that the criticism in this instance came first from the Cross Benches. This has never been properly regarded a party matter. The fact that it came from the noble Lord, who has no party axe to grind, gave it a great deal of weight to which it was entitled but which it might not otherwise have received.

I should also like to acknowledge the contribution of my noble friend Lord Goodhart, whom I am understudying tonight, and of my honourable friends Mr Rendel and Professor Webb. My honourable friends, as well as my noble friends, are delighted by the way in which the matter has been concluded.

It was obvious from the beginning, first, that something was going to have to be done and, secondly, that deciding what should be done was a matter of appalling complexity. That complexity was usefully ventilated in our debates. While I do not think that either I or my honourable friends would want to claim that this solution offers the best of all possible worlds, it is probably the best that is possible in this world. A great deal of work has gone into making it so. All we should properly do now is to offer our thanks to all those concerned, and to welcome the results.

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:
"I am not sure that the Labour Government ever expected to reverse the situation back to pre-1986".—[Official Report, 13/4/99; col. 618.]
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.

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 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, 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.

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 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.

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.

My Lords, I am grateful to the Minister for giving way again. However, as this is a matter of £12 billion, I am sure that we both agree that it should not be treated too lightly. The fact that a change was made in that the original discredited scheme was replaced by the new scheme does not alter the issue of the burden of proof as regards those who still feel that they are entitled to compensation. If that is what the ombudsman is saying, I feel bound to comment that I believe he is mistaken.

My Lords, I am not sure that we can take the matter much further. Under the new scheme we have a taper as regards the severity of the cut-off point. The problem with the original scheme was the severity of the cut-off point and the fact that people had no time to make alternative arrangements. The new scheme copes with both those aspects. There is the taper, as well as a period of up to 10 years, at the very least, during which people may make alternative arrangements.

Therefore, as I understand it, the ombudsman is now saying that he believes that the department's approach is a reasonable one; that we shall be looking on the balance of probabilities, rather than the department having to show beyond reasonable doubt that it misled someone; that the person involved suffered financial loss; and that, in those cases, we have responded according to the guidelines laid down by the Government Actuary's Department.

Clearly, as a former Treasury Minister, the noble Lord will recognise that we also have a duty of care to taxpayers whose moneys we are disbursing. The example I gave of the 24 year-old bluntly, so far as I could see, trying it on, is not one into which he could suggest we should bring our high-powered lawyers simply to say that the balance of probabilities is against him. It is not for us to say that that is fundamentally implausible. However, if the noble Lord feels that the department has been less than reasonable in its handling of any individual case, I am more than happy to look into it. That may have to be done on almost an ad hoc basis.

I do not think that I can go beyond the general guidelines I have now given, which conform to the Government's general compensation rules. However, as I say, if the noble Lord feels that the department is behaving unreasonably in any individual case, I should be happy to look into that.

On Question, Motion agreed to.