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Housing Benefit And Council Tax Benefit (Decisions And Appeals) Regulations 2001

Volume 623: debated on Wednesday 14 March 2001

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The Parliamentary Under-Secretary of State, Department of Social Security
(Baroness Hollis of Heigham)

rose to move, That the draft regulations laid before the House on 14th February be approved [8th Report from the Joint Committee].

The noble Baroness said: My Lords, I beg to move that the draft Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 which were laid before the House on 14th February be approved. I am grateful to your Lordships for agreeing to consider at the same time the draft Social Security Commissioners (Procedure) (Amendment) Regulations 2001. These regulations were also laid on 14th February 2001 by my honourable friend the Parliamentary Secretary for the Lord Chancellor's Department. I can confirm that these regulations are compatible with the Government's obligations under the European Convention on Human Rights.

It may be helpful if I first deal with the regulations on decision making and appeals. Your Lordships will recall that under the Social Security Act 1998 we introduced decision making and reform to the appeals system across child support and social security benefits administered by the Secretary of State.

The regulations before the House support measures introduced under the Child Support, Pensions and Social Security Act 2000. The Act continues the reform process by aligning local authority decision making for housing and council tax benefits with the rest of the benefit system. More importantly, the Act brings those two benefits into the mainstream social security appeals arrangements. From July, claimants will have a right of appeal against a local authority decision on their benefit claim to an independent appeal tribunal administered by the Appeals Service agency. There is a further right of appeal, on a point of law, to the social security commissioners and then to the higher courts.

The regulations set out detailed provisions for reconsidering and changing local authority decisions on benefit claims. They also set out procedures for making an appeal identical to those in other social security benefits. They apply existing legislation relating to the powers and procedures of appeal tribunals to housing and council tax benefits appeals.

There are 23 regulations. I am very happy to describe them in detail to your Lordships tonight, or simply to do my best to answer any questions. I am in your Lordships' hands. I know that these were—so to speak—nodded through in the other place as being essentially technicalities about letters and dates and so on. Rather than take up the time of the House, I am willing simply to move them. However, if noble Lords wish, I am willing to read out the other 11 pages. I commend the regulations to the House.

Moved, That the draft Regulations laid before the House on 14th February be approved [ 8th Report from the Joint Committee].—( Baroness Hollis of Heigham.)

My Lords, as the Minister suggests, it would be sensible to put specific questions rather than to go through every part of the regulations. Noble Lords present took part in the primary legislation which has spawned this massive, by normal standards, document. It is almost as big as a Bill. Given that noble Lords present are familiar with the subject matter, there is no need for it to be spelled out in great detail.

Having said that, I thank the Minister for her opening remarks, not least because I understand that she is here at some considerable inconvenience to herself. On these Benches, we appreciate the expertise which she brings to discussions on such matters as the regulations we have before us.

Perhaps I may ask for clarification. As the Minister has pointed out, the effect of the regulations is to bring the appeals procedure very much into the mainstream of such arrangements. However, they cover a wide range of subjects. When we debated the primary legislation, one of the matters discussed was membership of the tribunals. If there are difficult financial matters about balance sheets, income expense accounts and so on, there are provisions for an expert on financial matters, and, more generally, for a legal member on the tribunal.

The regulations cover a wide range of issues. For example, the tribunal will hear decisions on social security, child support, vaccine damage, tax credit and compensationary recovery questions and on decisions under the Road Traffic Act. So far as concerns the vaccine damage side, will there be provision for a medical expert to be present? That would be appropriate. At the moment that is not so. There are arrangements for financial and legal experts but not for medical experts.

My Lords, to which regulation is the noble Lord referring—or is he using this matter as a hook to open up wider questions on the appeals procedure?

My Lords, my understanding was that the Appeals Service agency will cover all the matters I have just mentioned.

My Lords, these regulations bring the housing and council tax benefits into the appeals system. We are therefore discussing those regulations tonight rather than having a general debate on the Appeals Service Agency. If I can be, I would wish to be helpful to the noble Lord.

My Lords, I move from that matter to the Explanatory Note to the regulations. Perhaps that is one of the reasons why I was misled. The Explanatory Note points out that matters have not been referred to the Social Security Advisory Committee because the regulations are laid within a fairly tight timescale. None the less, perhaps I may ask the Baroness whether she feels that it is advantageous in any case to have advice from the Social Security Advisory Committee. It is also pointed out that:

"The regulations are made after consultation with organisations appearing to the Secretary of State to be representative of the authorities"
covered by these regulations. Can she tell us which authorities have been consulted?

I have another point about the Explanatory Note. I vividly recall a point made by the noble Baroness, Lady Castle, in one of our earlier debates. The noble Baroness said that she had asked her secretary to read out a clause. Her secretary did so. She replied, "I cannot understand a word of it; read out the Explanatory Note". The secretary said, "That was the Explanatory Note". I feel in much the same position. The Explanatory Note states:
"Part I contains provisions relating to citation, commencement, interpretation and service of documents".
That is fine, but it then states:
"It also includes a provision as to treating a person as a person affected by a decision".
That is the Explanatory Note. I do not have the remotest idea what that means. Perhaps the Baroness can tell us. It is bad enough to have the many unbelievably complex measures which the Minister, quite rightly and with our support, did not read out, but I rather despair of noble Lords' ability to understand what that kind of remark in the Explanatory Notes means.

We are here concerned with a statutory instrument in relation to housing and council tax benefits. I shall not go into some of the points on other areas covered by the appeals procedure. We can return to them on other instruments concerning different parts of the main legislation.

I am concerned about one aspect with regard to the housing benefit fraud. The national housing benefit review of 1997 to 1998 states that 16 per cent of those receiving housing benefit were paid an inaccurate amount. I am not clear to what extent the errors made by the department have been corrected by the appeals procedure, or whether that is the figure before the appeals were taken. It would be helpful to have some information on that point.

I have one final point. The integration of the appeals procedure—to a considerable extent, that is what it is—will mean that housing benefit payments will come under the Appeals Service Agency and will be subject to the Appeals Service Agency targets. As I understand the position, the agency has a number of performance targets. In my former incarnation as a Member of the other place, I used to worry about the way in which the appeals procedure worked. One of the targets is to reduce the public sector sickness absence to the public service baseline level.

My Lords, is the noble Lord referring to absentee staff or to failure to attend by clients?

My Lords, from my experience in another place, I am referring to both. There were constant problems. On some occasions, people making the appeal did not turn up. That was a major problem. On other occasions, everyone else turned up except the chairman. It is an important point. Can the noble Baroness say whether the aim of reducing the public sector sickness absence level by reducing absence by 10 per cent by 31st December 2000 was in fact achieved? The effectiveness of the regulations and the actions taken under them depends very much on the efficiency of the Appeals Service Agency and, in particular, on the achievement of its targets.

Those are my only specific points. I did not think that it was appropriate to go into enormous detail on my other points.

My Lords, when I took my place, I had not intended to say anything about the regulations. But I have heard one thing which I regard as a landmark. This is the first time that I have had to respond to regulations to which the Minister has given a certificate of compatibility with the European Convention on Human Rights. It is my duty and very great pleasure to welcome that.

A small moment might usefully be allowed for what the noble Lord, Lord Newton of Braintree, once described as "the usual process of osmosis", by which information reaches Ministers in this House. During that moment, therefore, I may perhaps respond to what the noble Lord, Lord Higgins, said about targets for sickness absence. I am not at all sure that those are useful. The rate of sickness absence varies much more according to the incidence of 'flu epidemics and ailments of that kind than according to things which government can properly alter. Those who come into work suffering from such ailments usually give them to many other colleagues and increase sickness absence. Any target which puts pressure on people to come into work when they are not fit to do so and in an infectious condition is an unwise one. I am not sure that the noble Lord was prudent to press the Government to insist on it with rather more vigour. I hope that that has allowed the necessary time for osmosis.

My Lords, it is a generous instinct on the part of the noble Earl but I fear that it has not happened. None the less, I shall do my best to answer the questions.

The noble Lord, Lord Higgins, asked about consultation. Housing benefit is nationally financed but is administered locally by local authorities. The noble Lord appeared to suggest that the DSS would have made the errors. No, it is the local authorities that make errors. I am sure that he will accept that. Our prime consultation has been with local authority users. We have been working with them. The other group with which we must statutorily consult is not the Social Security Advisory Committee but the Council on Tribunals. We have worked closely with the council. In addition, we have written to around 30 interested pressure groups, including the CPAG, Centrepoint, Age Concern and the National Association of Citizens Advice Bureaux, giving them an outline of the new proposals and inviting comments. If the noble Lord wishes, I can enlarge on some of their responses. Broadly speaking—this follows the appropriate point made by the noble Earl, Lord Russell—while some local authorities might prefer longer to introduce the scheme and might prefer to keep an appeal system local, there is none the less a demand for transparent justice. One has a national appeal service and that is the point about compatibility with human rights. We discussed those broader issues when we debated the Bill last summer. At the time, noble Lords welcomed it.

My Lords, perhaps I may intervene on the point raised by the noble Earl, Lord Russell. This is the first occasion when a Minister has said that an instrument is compatible with the European Convention on Human Rights. If it is appropriate to make such a declaration, would it not be more helpful—given the rather select band of noble Lords in the Chamber at the moment and the extent to which even Hansard may be read on this issue—to put it on the instrument itself?

My Lords, that may well be right. I shall follow up that point. It is a perfectly fair one.

The noble Lord also asked about the meaning of "treating a person as a person". I suppose that that is better than the alternative. I shall try to see whether there is a more helpful and useful way of putting it. The noble Earl, Lord Russell, usually asks me about what are called Humpty-Dumpty clauses—when capital is to be treated as income and income is to be treated as capital. I have never quite had one where a person is to be treated as not a person and not a person is to be treated as a person. Let us hope at least that we are being consistent.

I was asked about housing benefit errors. Sixteen per cent of errors in housing benefit are made by local authorities in housing benefit administration. That does not surprise me given the complexity of the issues associated with the rent officer's level, the amount of housing benefit for which one is eligible and backdating. But those are errors made by local authorities. One of the steps we are seeking to take—we raised it very obliquely in our discussions on the Social Security Fraud Bill—is to strengthen local authorities' capacity to ensure that housing benefit is accurately paid the first time round and to build out both error and fraud.

The noble Lord asked about Appeals Service Agency targets. He did not ask specifically, but it may be worth putting on the record that the target to hear the appeals is meant to be 14 weeks. We are making good progress in that direction. None the less, it is still a longer time than many of us would think desirable.

The noble Lord also asked about absenteeism. I cannot help him on the more general point about the level of absence among support staff, secretarial staff and so on. But most of the tribunals will be held by a single person—a legally qualified chairperson. If the chairperson is not present, the tribunal does not go ahead. Where the matter involves financial complexity, a financial person will be involved. A landlord—landlords may appeal as well as tenants— might have complex books and arrangements. We therefore need that kind of expertise. Under the present system, introduced as of last year, I would expect absenteeism of the professionals at the tribunal level to be very modest indeed—except, as the noble Earl said, when one is hit by a 'flu epidemic.

Another issue is the problem of people who wish to appeal failing to turn up. We debated it at some length last summer. As the noble Lord will recall, our response in that context was to go for paper hearings. If someone had failed to notify that he was going to attend in person, although the forms—partly as a result of pressure from the noble Earl, Lord Russell—made it clear that he probably had a better chance of having his case heard in the way he would wish if he attended in person, there would be a paper hearing. That has allowed us to reduce a good many of the delays. In some cases, we have had to cancel half of the morning sittings because people have not turned up.

I think that I have covered all the points raised by the noble Lord. I am glad that both the noble Lord and the noble Earl felt able to welcome the regulations.

On Question, Motion agreed to.