House of Lords
Wednesday, 25 January 2012.
Prayers—read by the Lord Bishop of Manchester.
Employment: Sickness Absence
My Lords, the Independent Review of Sickness Absence by Dame Carol Black and David Frost has provided a valuable contribution to the evidence base about the issues facing individuals, employers, healthcare professionals and the state. The Government will carefully examine the findings and respond later this year. Given the complexity of the issues raised and the work needed to consider the recommendations, it is too early to speculate on whether and how individual recommendations may be implemented.
My Lords, I welcome the Minister’s response. Does he agree that the report is full of recommendations that are designed to help those who suffer from long-term diseases such as chronic pain to get back to work or indeed to stay in their jobs? Since sickness absence costs the economy something like £15 billion in output and £13 billion in health-related benefits, does he agree that the early implementation of these recommendations would do a great deal to boost both the quality of life of a large number of people and the economy?
Yes, my Lords. This initiative, which I am proud to have commissioned and sponsored, is really very important for improving the quality of life for a lot of people. With this review we are talking about a way of intervening much earlier so that we stop people start falling out of the labour market. The present system allows them to drift on for months, if not years.
My Lords, does the Minister agree that there is a connection between a healthy economy and a good health service? Given that back problems are the most important reason for sickness absence, early intervention by physiotherapy services is important for those who fall foul of that problem. Will he ensure that we have a service for physiotherapists that is able to match the need in order to return people to healthy work as soon as possible?
My Lords, one of the reasons why this is quite a challenging report that implies quite a lot of work is that we need to reshape the provision for people. I shall give your Lordships a statistic that I find truly shocking. We have one occupational health professional in this country for every 34,000 people. In the Netherlands, there is one for every 4,000 people. That just shows how far we have to go to get provision for people in that position.
Does my noble friend agree that general practitioners have a critical role to play in the health-at-work policy area? Is it too early to say whether there has been any flow-through from the recent introduction of the fit note certification process on absence rates? Will he give sympathetic consideration to the idea in this very welcome report that we should have an independent assessment service? That would be of signal assistance to general practitioners, who are trying to persuade their own patients that it is often in their own interests to go back to the world of work earlier rather than later.
Yes, my Lords. The recommendations in the report were very supportive of maintaining the GP’s role. The independent assessment service could be a supplement to that, which a lot of GPs would find very welcome in helping to get people back into the workplace.
My Lords, if we are going to prevent people becoming ill at work and accidents at work, should we not do more to promote and applaud the health and safety system that we have in the UK? Would the Minister have a word with his right honourable friend the Prime Minister to ask him to stop making ill informed comments that undermine the system?
My Lords, in practice there has been a lot of emphasis on the safety aspects of work and too little on health in work. One of the things that we are trying to encourage is the ramping up of health support, both in work and as people fall out of work. That is why this set of recommendations is so interesting.
I welcome the report and the update that the Minister has given us on the process for its implementation. He mentioned early interventions in this context, and in the debates on Monday he spoke frequently about the need for early interventions with certain families to try to get them on the right track. That is a lot of additional work coming the way of the Civil Service. Is he confident that his department has the resources to address these issues adequately? Can he say whether his department will increase or diminish in size between now and 5 April?
My Lords, the department has an enormous workload; I am absolutely conscious of that. It is driving through one of the biggest social changes that this country has seen for many decades. At the same time, we are decreasing the numbers in the department at the centre. That does not mean that it is happening at Jobcentre Plus, which is the client-facing area. We are confident that the department, which I have now been in for some time and genuinely find admirable, is able to fulfil these objectives.
One of the things that the sickness absence review did was to look at the mismatch in what people were trying to do. The worst of the mismatches was that GPs were signing people off on their sick notes because they could not do a particular job, while the work capability assessment later looked at whether they could do any job. It is those mismatches that we need to stop and sort out.
My Lords, I think I tried to deal with this a little earlier. There is inadequate support across a whole range of occupational health therapies, including physiotherapy. We are taking our time to do this properly, but one of the important implications is the question of what provision is needed for people who are of working age and in danger of going out of the workforce. We seem to have far too little provision generally, and we will probably need to bulk it up.
Aviation: Passenger Duty
My Lords, from April 2013 air passenger duty will for the first time cover passengers travelling aboard private or business jet flights. The changes will bring a substantial number of new operators into the regime and will require the introduction of special rules, tailored to business aviation. Given that the sector comprises many small operators, the Government decided to implement the change from 2013 in order to ensure that burdens both for HMRC and industry were minimised and that the system functions effectively.
My Lords, in light of the Question on the Order Paper, do the Government now accept that the air passenger duty was falsely promoted as a positive measure towards mitigating climate change? Is it not just a Robin Hood tax in reverse whereby the Government take from poor families in the Caribbean, as we heard earlier this week, and give to bankers through subsidising their private jets?
My Lords, that is quite a question. The Caribbean issue was addressed extensively when my noble friend Lord Sassoon answered questions on Monday. As regards whether it is a tax dressed up as an environmental duty, broadly speaking I agree with the noble Lord. It is a revenue-raising duty which makes an important contribution to the public finances.
My Lords, BA has cut scheduled flights to the Caribbean. Travel agents that serve the region are feeling the pinch as fewer people are travelling, meaning a loss of APD revenue to the Treasury. However, last week the Foreign Secretary, William Hague, stated at the UK Caribbean Forum that the Government had not closed the door on further discussions with regard to APD. That is most encouraging, especially to the UK Caribbean diaspora who feel betrayed. However, in the mean time, will my noble friend tell the House what plans the Government have to provide economic support to the Caribbean now that many livelihoods are threatened by the unfair banding of APD?
My Lords, I recognise the importance that my noble friend places on this issue. As I said, the question of the Caribbean was addressed extensively by my noble friend earlier this week. I have nothing to add at the moment but as soon as I do, I will bring my noble friend up to date.
Is not this air passenger duty a way for the Government to levy an environmental charge on the carbon discharged by airlines? Does the noble Lord agree that this is fair given that airlines get tax-free fuel whereas all motorists and truck drivers have to pay a large duty?
My Lords, given my noble friend’s answer to the noble Lord, Lord Morris, and that this duty will not come in until 2013, does that not give the Government the opportunity comprehensively to review the whole issue of this duty and perhaps to come up with a tax in its place which promotes UK growth, is less damaging to the competitiveness of UK carriers and is explained in a way that moves away from relying on an essential environmental message, which, frankly, few now believe, to some explanation for the tax that is more credible?
My Lords, we have recently gone through a full consultation exercise on this. In answer to my noble friend’s question about the effect on the economy, the Government’s top priority remains to tackle the fiscal deficit. That means that these APD revenues must be maintained for the foreseeable future. The Government believe that the aviation sector should continue to make a fair contribution to the public finances.
My Lords, both the noble Lord today and the Minister on Monday made it absolutely clear that this tax is about revenue-raising. Why, therefore, has he indicated this concession for private jets, while the tourism industry, particularly in relation to the Caribbean, is being affected adversely? Why are the Government not consistent in their approach to industry?
Armed Forces : Legal Representation
My Lords, it would be inappropriate for me to comment on a case currently being considered by the independent Director of Service Prosecutions, but legal aid is available for all personnel, including reservists, who are subject to service law or service discipline at the time of an alleged offence, through the Armed Forces Criminal Legal Aid Authority. The scheme is based on the same principles as civilian criminal legal aid in England and Wales and is designed to mirror it, while making necessary adjustments for service life.
My Lords, I readily accept that it would be quite wrong to comment on any particular case that may or may not come before the courts, but is it not right that the Ministry of Defence—as, in effect, the employer of soldiers, sailors and airmen—should cover their proper legal costs when the need arises, and not leave them to the vagaries of the legal aid system?
My Lords, as my noble friend said, I will not be able to respond to specific questions on this case; the department must protect the personal data of our employees, and I do not wish to prejudice any possible future disciplinary or administrative action. However, I can say that the MoD will pay for the defence of an individual charged with an offence that is committed in the course of their duties and while acting in accordance with any applicable regulations or direction. However, where someone may have fallen short of the high standards we expect of our personnel, it must be investigated and, if appropriate, proceed to trial. In this situation, legal aid funding will provide representation according to the charge and the defence case, engaging counsel if and when appropriate. All legal representatives used by the Armed Forces Criminal Legal Aid Authority are civilian solicitors or barristers registered with the Law Society or the Bar Council. By funding appropriate legal representation, we are confident that the Armed Forces legal aid scheme well serves individuals subject to the service justice system.
My Lords, as chairman of the Association of Military Court Advocates I wonder whether my noble friend will accept that, as the results have shown, there are many skilled lawyers who will appear for the defence in the most serious cases involving the military?
My Lords, I am sure that the noble Lord will agree that we are very lucky in this country to have some amazing men and women volunteering and serving as reservists. However, is it not a huge risk to assume that reservists can fulfil on a very large scale the tasks that are done by regulars? With the current reduction in Regular Forces and increased reliance on reservists, this will be a major problem militarily.
My Lords, each of the services has its own service police who derive their powers from the Armed Forces Act 2006 and are independent of Ministers and the chain of command for the purposes of investigations. In the case of the Army, the Royal Military Police special investigation branch conducts investigations. Decisions on what charges should be faced by any soldier are taken by the independent Service Prosecuting Authority, which is under the general superintendence of the Attorney-General. Neither Ministry of Defence Ministers nor the chain of command play any part in such decisions.
My Lords, does the Minister agree that when a member of our Armed Forces is asked to revisit traumatic events in which they were involved in the course of a tour of duty and which may lead to legal action, they are often in need not only of legal support but of pastoral and counselling support? What is his degree of satisfaction that such levels of support are readily available to them?
My Lords, the Government are very concerned about the emerging crisis in Niger and have been monitoring the situation closely. The Secretary of State for International Development has announced emergency support to mitigate the impact of the crisis. This will reach 68,000 children in Niger, Chad and Mali and provide livestock support to 30,000 families.
My Lords, I thank the noble Baroness for her response. The warning signs of looming disaster were there in the Horn of Africa two years ago, but no action was taken and tens of thousands of Somalis starved to death and millions of people in east Africa were affected. Against that background, will the Government give active endorsement to the UN-supported charter to end extreme poverty, which identifies five specific actions that must be taken when we know that a crisis is predicted and preventable? We can and must stop the drought in west Africa and the Sahel turning into a famine. We must say never again and mean it.
The noble Baroness is right that we must say never again and mean it, but I dispute that the Department for International Development was not leading on the response in the Horn of Africa. Credit has been given to the UK Government for that. The report from Oxfam and Save the Children to which her Question refers is extremely welcome. It indeed emphasises that the intention is to manage the risk, not the crisis. That is absolutely the right way to go about it: to intervene early and build resilience. That is why the Department for International Development did that in the Horn of Africa and is doing that across the Sahel.
My Lords, is my noble friend aware that in the report, A Dangerous Delay, which has just been issued, Oxfam states that many of its messages chime well with the humanitarian emergency response review chaired by my noble friend Lord Ashdown? Focusing on anticipation of and resilience to natural disasters, what measures have been put in place to co-ordinate cross-departmental and cross-agency efforts through the stabilisation unit and other means?
The noble Lord is right that the humanitarian emergency response review made some extremely important recommendations for the anticipation of disasters and building resilience to them. That is being taken forward at the moment. DfID is in the process of developing a humanitarian framework for Africa and a Sahel resilience strategy which will help the UK anticipate and respond strategically to crises across the continent. The building stability overseas unit normally focuses on resilience against conflict issues rather than natural disasters. Nevertheless, the two feed on each other, so there is action that that unit can take as well.
My Lords, has the Minister seen the reports this week that Boko Haram, the radical Islamist group in Nigeria, has been responsible for a large number of people escaping from the violence there into neighbouring areas in Niger, and that this is both leading to an exodus of refugees, compounding the existing problems in Niger, and preventing food being transported from Nigeria into Niger? Did she see the warning from the European Union earlier this week from Kristalina Georgieva, the commissioner for human aid, that it is a race against time to safeguard the lives of the 5.5 million people who are currently at risk?
The noble Lord is right to flag up the problems in the area generally. Indeed, the knock-on effects from the problems in Nigeria are having an effect. So, too, are the returning mercenaries from Libya who instead of sending back remittances now need to be supported in that area. My right honourable friend the Secretary of State today spoke to the Commissioner about the situation in the area and the EU has just doubled its contribution. We are acutely aware of the difficulties of working in this area as it is very unstable.
The United Kingdom has just contributed £2 million to this directly in response. It is worth bearing in mind that the United Kingdom is also a major contributor to the UN Central Emergency Response Fund which has just put in £7.9 million, of which £1.9 million was from the United Kingdom. The European Commission contribution, as I have just mentioned, has doubled in the past few days to £105 million and we contribute 17 per cent of that. Maybe the noble Lord would like to do some of the maths. For historic reasons, the French are the leading country in this area, and DfID staff are in France right now seeking to gear up the response.
My Lords, according to the World Health Organisation 40 per cent of the healthcare in Africa is delivered through the churches. Can the Minister say whether the Department for International Development will be working through the churches as part of its response to these crises?
The right reverend Prelate is right that the churches are very active in the region and DfID is working with a number of organisations. This is a region where, generally speaking, it is not possible to channel money directly through Governments. Therefore, a number of other organisations are the routes to support in the area.
In the light of the Minister’s very helpful answers to previous questions, will she consider how she might co-operate with her colleagues in the Ministry of Defence and the Foreign and Commonwealth Office in seeing how we can better support the African Union and ECOWAS in terms of their peacekeeping or conflict resolution capacity in view of the deteriorating situation in the Sahel involving the Tuareg?
The noble Lord is right. In terms of co-operation, the FCO, the MoD and DfID are working very closely together. My noble friend made reference to the building stability overseas unit, which is, as it were, a concrete example of that working together. The support for the African Union is very strong and will continue to be so.
My Lords, some of us may be old enough to remember that in times of plenty the Pharaohs used to build up stores of excess supplies to use in times of famine. I wonder whether the international community has made any progress in pre-empting these crises by making sure that there are stores in strategic parts of the world that are likely to suffer famine in advance of the famine occurring.
The World Food Programme and UNICEF are indeed already stockpiling supplies and a lot of work is going into how best to ensure that these crises do not occur. The Question from the noble Baroness, Lady Kinnock, was all about how to pre-empt such crises and develop resilience in an area where already the population is exceptionally vulnerable. A lot of the problems are because of rising food prices rather than necessarily food scarcity. The noble Baroness’s point is well taken.
Will the Minister join me in commending BBC correspondent Mike Wooldridge and his colleagues for outstanding coverage of the famine in West Africa? One point that he made, which the noble Baroness mentioned, was that food prices had risen 40 per cent in a single year, out of reach of the local population. What is DfID doing for longer-term sustainability? The noble Baroness mentioned cattle; perhaps she would comment on agriculture as a whole.
I am very happy to commend the BBC and its journalists for their brave coverage in these very unstable areas. DfID supports the Comprehensive Africa Agriculture Development Programme, a pilot programme from the World Bank on climate resilience, which is extremely important here, and a global facility for disaster risk reduction. It is also important to emphasise DfID’s support for social protection programmes, and for cash transfers where appropriate, to try to build up these vulnerable communities so that they will be more resilient in circumstances such as this.
Smoke-free Private Vehicles Bill [HL]
A Bill to amend the Health Act 2006 and to make provision for a ban on smoking in private vehicles where there are children present.
The Bill was introduced by Lord Ribeiro, read a first time and ordered to be printed.
Local Digital Television Programme Services Order 2012
Wireless Telegraphy Act 2006 (Directions to OFCOM) Order 2012
Revenue and Customs Appeals Order 2012
Local Authorities (Conduct of Referendums) (Council Tax Increases) (England) Regulations 2012
St Albans and Welwyn Hatfield (Boundary Change) Order 2012
Motions to Refer to Grand Committee
Joint Committee on Privacy and Injunctions
Motion to Agree
Motion agreed, and a message was sent to the Commons.
European Union (Definition of Treaties) (Republic of Korea Framework Agreement) Order 2012
Motion to Approve
Immigration (Biometric Registration) (Amendment) Regulations 2012
Civil Procedure (Amendment No. 3) Rules 2012
Rules of the Court of Judicature (Northern Ireland) (Amendment No. 4) 2012
Motions to Approve
Welfare Reform Bill
Report (6th Day)
Relevant document: 21st Report from the Joint Committee on Human Rights.
Clause 100 : Power to require consideration of revision before appeal
Amendment 62ZB not moved.
Clause 103 : Recovery of benefit payments
62ZC: Clause 103, page 73, line 28, at end insert—
“71ZJ Non-recoverable overpayments
The Secretary of State may not recover any amount of any benefits paid in error by officials when the claimants could not reasonably be expected to know they where being overpaid.””
My Lords, the House will wish to know, in connection with this amendment, that I am an appointee for my disabled son's benefits.
The amendment is designed to maintain the legislative position that prevents the state recovering overpayments where the mistake is entirely the fault of officials and where the claimant could not reasonably have been expected to realise that they were being overpaid. This protection has been on the statute book for over three decades, yet it stands to be removed by this Bill. This is of great concern to churches and charities that understand the impact of sudden, unexpected and, in many cases, unaffordable debt.
During Grand Committee, the noble Baroness, Lady Lister, emphasised the importance of this protection remaining enshrined in primary legislation rather than being in a code of practice. Unfortunately, despite the Minister’s assurances that the Government's draft code of practice, What happens if you are overpaid Universal Credit, Jobseeker's Allowance or Employment and Support Allowance, would,
“lead to considered, consistent decision making”,—[Official Report, 23/11/11; cols. GC 467-68.]
it appears incomplete and worryingly inadequate to protect claimants. Nor is there any duty in the Bill requiring officials to comply with the code of practice. Those representing welfare claimants against whom an overpayment recovery is being enforced could prevent costly litigation if they could point to a statutory duty to follow procedure, but the statutory duty is not there.
The opening section of the code of practice encourages claimants to check their award notices and to inform the relevant authority if anything is wrong, missing or incomplete, but even the most incisive individuals may face real difficulties in identifying whether officials have made an error or an omission—perhaps especially the 20 per cent of adults who are estimated to struggle with literacy or numeracy. The principle of expecting those in receipt of benefits to check their notices is, of course, neither new nor unreasonable in itself, but under the proposed changes the consequences of failing to recognise the state’s mistakes will become excessively severe. Will the Minister clarify what extra support people will be provided with in analysing their award notices, particularly in cases where they face barriers in literacy or numeracy or where English is their second language?
The second area of concern I wish to raise relates to the section in the code of practice “If you disagree with the overpayment decision”. Claimants are instructed that they have a period of one month from the day that an overpayment notice is dated in which they may challenge it. This may seem an adequate time on paper, but it takes no account of the reality facing many people at home. Let us take a single mother of four young children who is attending a college course to improve her chance of getting a job receiving an overpayment notification and being threatened with her benefits being stopped. She is balancing an education with raising a young family, and one month in which to challenge the decision would not be long at all. If you add literacy problems, waiting times for advice services and even time lost through postage, there is a very realistic prospect that claimants simply will not be able to respond in time. Will the Minister reconsider what appears to be an inadequate time limit? Will he also outline what provisions will be put in place for those who do not respond within the prescribed time because of any matter out of their control, such as hospitalisation?
In the section of the code “Paying back an overpayment”, claimants are informed that overpayments may be recovered through deductions from their benefits, direct debit, another regular payment method, a lump sum or through the courts. Crucially, it does not mention that an overpayment may be recovered through deductions from earnings, as outlined in the Bill, nor is there any mention of the additional administrative costs that could be imposed in such cases, an aspect that has been of particular concern to organisations such as the Zacchaeus 2000 Trust, which works on the front line with vulnerable debtors. Will the Minister clarify why these powers are not outlined in the code of practice and confirm that they will be conveyed in full to those in receipt of benefits so that those facing the recovery of overpayments in such a manner can fully understand the process and the implications?
Suitable safeguards must be put in place to ensure that the burden of official errors does not fall upon some of the poorest and most vulnerable people in our society. Profound anxiety has been expressed by a number of faith groups, including the five major Christian denominations that are backing this amendment. Noble Lords may have seen a recent letter to the Times by the Roman Catholic Archbishop of Southwark, who underscored these concerns.
In Grand Committee, the Minister stated that,
“there is no disagreement over the need for safeguards for vulnerable claimants and those in financial difficulty”.—[Official Report, 23/11/11; col. GC 467.]
However, replacing a tested mechanism in primary legislation with a questionably incomplete code of practice means these safeguards are being watered down. This is all the more significant in the context of the IT changes involved in the shift to universal credit. Any new system will generate official errors. Because there is no duty in the Bill for officials to abide by the code, the current legislative provision remains vitally important protection for those individuals and families at risk of what may be very large debts arising through no fault of their own.
In the past, the DWP has issued advice stating that in cases of official error overpayments should not be recoverable if the claimant could not be expected to realise the error. With the introduction of universal credit, it is not clear whether these guidelines still apply. The draft code sent on 7 December 2011 does not mention official error at all, only that a number of factors will be taken into account when considering a request for repayment, including the claimant’s receipt of the overpayment in good faith. This actually represents a weakening of the advice to officials and therefore less protection for claimants.
The Government have two options to remedy this situation. They can explicitly include in the code of practice a requirement not to seek repayment in cases of official error and claimant good faith, but this would really need to be supplemented in the Bill by a requirement on officials to follow the code of practice. Alternatively, they could choose the simpler option of accepting this amendment. I beg to move.
My Lords, we should be grateful to the noble Baroness, Lady Hollins, for raising this issue, which comes at a point at which existing recipients of benefit may be experiencing real pressure. I hope that the Minister will be able to illuminate more fully than he has so far the Government’s intentions in this field. We are exceedingly grateful to the noble Baroness.
I think we all accept that one of the big problems with our current benefits system, which I strongly hope and believe universal credit will help to rectify, is that the complexity of benefits—the fact that they overlap and there is no simple, clear or obvious way of ensuring the appropriate entitlement—has been a great cause of error by both officials and claimants, and of fraud. These are built into the system in the present way in which it is organised. One of the reasons why I welcome universal credit is that the simplicity of a single benefit—with its clarity, its monthly paper trail and so on—should, I hope, allow us to overcome some of those difficulties.
Overpayments will still happen, and there must be a presumption, as with banks, that if there has been an overpayment one should seek to recover it because it properly belongs to the taxpayer. However, many benefit claimants cannot afford it and that should be one consideration; it may in that case properly be wiped out. Secondly, the benefit claimant may be under great stress, perhaps suffering from terminal illness or caring for someone with terminal illness, which has been overlooked and it is not now possible for them to repay; or the claimant may be in a mire of debts, including for utilities or rent, and if one sought to have a speedy recovery of any overpayment one could end up leaving that claimant homeless.
I am happy to leave it to the discretion of the local offices as to whether any overpayment should be pursued, deferred or patterned slowly for repayment, only if the Minister can give us full assurances about how that discretion will be used wisely and decently. Perhaps we could, in conjunction with the relevant voluntary organisations, go over the code of practice again in the light of its need to be clarified, given universal credit, and ensure that that code of practice has a statutory basis and that, if local decision-makers do not follow it, that would be a basis for appeal to a tribunal.
As I have said, I believe that if someone can afford to repay an overpayment and it is reasonable and decent to seek to get that repayment, we should do so, but for many people on benefits that will not be the case. It would be very helpful if the Minister could explain exactly how he will ensure that local discretion is exercised wisely and decently.
I support this amendment as someone who used to be responsible for delivering the benefits system. When I was in that position, I remember railing against the complexity of the system and am therefore delighted that we are doing something about that. I also railed against the complexity of some of the bureaucratic communications that were sent out. Since I am now more often on the receiving end of those kinds of communications, I fear that my railing had little impact because they are still excessively complicated and I find it quite difficult to understand some of the letters that I receive.
It is placing a very heavy burden on benefit recipients to expect them to understand fully all the communications that they receive and therefore fully to appreciate sometimes when an overpayment has been made. For those of us who had an overpayment of, say, an occupational pension that we have to repay, irritating though it is, we can probably afford to do that over a period of time. It is a very different issue for a benefit recipient to repay a large sum of money in their circumstances. Therefore, I support the amendment. It is really important to get some clarification of the situation as we move forward.
My Lords, it seems that the HMRC’s position on tax credits is to say, “If we fail to meet our responsibilities but you meet all yours, we won’t ask you to pay back all of an overpayment caused by our failure”. That is quite a strong statement of their side of the bargain and recognition of an error made by HMRC. Its own code of practice and guidance sets out the limitations of payments where a claimant is experiencing hardship and the circumstances in which an overpayment will be written off.
Given that we will now have a new and unfamiliar system of universal credit, once it is clear both that there has been an official error and that the recipient could not possibly have known about it, if all those overpayments were to be clawed back in those circumstances the officials would have precious little incentive to get the system right, despite the hardship that that could later cost claimants who, through no fault of their own, were overpaid.
In Committee, the noble Lord, Lord Freud, said:
“Although the starting point for overpayment recoverability will be that almost all overpayments of working-age benefits … will be recoverable … DWP will consider a claimant’s means, income or expenditure if the debtor”—
I do not like that word because it suggests that the claimant in some way invited this—
“considers that they are in hardship”.
However, that means that repayment is essentially means-tested in that the DWP will have the discretion to write off an overpayment based, in the Minister’s words, “on their individual merits”.
The Minister promised the Committee that the DWP,
“will ensure that deductions from benefit or earnings to repay an overpayment should not lead a debtor”—
“to suffer undue hardship”.—[Official Report, 23/11/11; col. GC 468.]
However, it seems to me that this has two problems. First, it is discretionary and possibly means-tested but without anyone knowing the rules. HMRC’s draft code, which was sent to us in December, as the noble Baroness, Lady Hollins, has said, says only that it might decide in exceptional circumstances not to seek recovery of an overpayment or part of it and that there are no prescribed circumstances for a discretionary write-off, although it hints that it would do so only in cases of immediate significant family hardship or a threat to their health, and emphasises that hardship is taken to be “other than financial hardship”.
Secondly, the code relies on claimants knowing that they can appeal against a required repayment without having been informed about that. The draft leaflet really does not make it very clear, nor does it explain how to appeal. If I have understood it correctly, it says only that you can consider the amount that is being asked for, but not the fact that you have to pay it because of your own circumstances. The Minister said in Committee,
“that if the debtor considers they are in hardship, they can say that and then there is a process built on that”,—[Official Report, 23/11/11; col. GC 469.]
but it is not clear how that would work. If this amendment falls and the system proceeds, will the Minister assure us, first, that anyone asked to repay to cover for official error will be told of their right to appeal; secondly, that they will be given rather more guidance than that given in the draft leaflet as to the circumstances in which any write-off will be allowed; and, thirdly, where the repayment is sought from landlords, which in certain cases it would be, that they will also have the right of appeal against a loss of income over which they will have no control?
The Minister knows that the IT problems caused significant headaches and hardship for many claimants in the early days of tax credits. Getting the position right on overpayments and ensuring that claimants do not feel that they have been unjustly made to pay for the errors of government officials will be essential to building confidence in universal credit. We look forward to the Minister’s response to these and the other queries raised, and emphasise that this amendment is about the consequences of official error, not of claimant mistakes.
My Lords, as we have previously discussed, Clause 103 is based on the premise that for those benefits within its scope, most if not all overpayments will be recoverable. I think we are all in agreement that a benefit recipient should not receive any more money than they are due; nor should they receive any less. In keeping with this general principle, we believe that a benefit recipient should not be allowed to keep money that they should not have received and that this should hold true even if they were not aware of the mistake. I do not think that we can accurately compare the issue of tax credit overpayments, raised by the noble Baroness, Lady Hayter, with that of benefit overpayments. That is because awards of tax credit are based on an estimate of what someone will earn, whereas benefit entitlement is based on actual information—and of course it will not have escaped anyone’s notice that the level of tax credit debt has grown significantly.
As we have discussed before, although the provision allows for all overpayments to be recoverable, this does not necessarily mean that overpayments will be recovered in all circumstances. We will endeavour to recover all overpayments where we are able to do so and where it is reasonable to do so without causing undue hardship. This remains a cornerstone of our overpayment recovery policy. The code of practice, a draft version of which has been distributed to noble Lords, will provide guidance about the circumstances in which recovery action will or will not be taken. It is intended that the code of practice will be available to the public in leaflet form and online. This will ensure that the decision-making process is transparent and that the right decisions are made about the recovery of overpayments. Where a claimant wishes to challenge a decision, they may exercise their right of appeal against it.
To pick up on the point made by the noble Baroness, Lady Hollins, on what compels decision-makers to apply the code of practice, the application will form part of the decision-making process, and failure to adhere to it would leave the DWP open to challenge and appeal on the decision itself or, indeed, judicial review for failure to apply good practice. While there may be no legal duty to comply, failure to do so renders the department more open to successful appeal by the claimants. So we have every incentive to adhere to the code of practice.
As DWP will not prescribe in legislation circumstances in which the discretionary write-off or non-recovery of an overpayment would be considered, we will be able to consider any application for non-recovery or write-off on the merits of that particular application.
Whether an overpayment was received in good faith is only one of the considerations that we will apply. We will also consider whether recovery is likely to cause the claimant or their immediate family significant hardship or be a threat to their health or welfare. We will also take into consideration any further issues that the claimant considers to be relevant.
In many cases, a claimant will not question the calculation or the constituent parts of the award. In some cases, this could be due to language or literacy problems or perhaps learning difficulties. If an error were to occur in such an instance, perhaps due to the fault of officials but perhaps not, is it reasonable for any claimant who has language, literacy or learning difficulties to avoid repayment solely because of this? Is it not reasonable that they should gain assistance in checking their award? In many cases, of course, they will have gained assistance in making their claim.
Any test of reasonableness must be subjective. This amendment would require a subjective assessment not only of the debtor’s capacity to understand entitlement but of their capacity to gain assistance from others in understanding their entitlement, all before the overpayment is determined.
As I have stated previously in Committee, we do not intend that the repayment of any overpayment, whether it is the fault of the claimant or officials, should cause undue financial hardship. We will gladly discuss an alternative repayment rate if a claimant cannot afford the suggested repayments. Indeed, as I have previously placed on record, only just under half our current on-benefit debtors repay at the maximum rate of recovery. That rate is currently £10.20 per week for those individuals on income-related benefit.
We will prescribe in regulations that where official error causes an overpayment of housing credit to a pensioner, this will remain non-recoverable. This remains in line with how we treat overpayments of state pension credit and will provide greater reassurance for older people who may be on fixed incomes.
The noble Baroness, Lady Hayter, asked whether we would inform claimants of their right of appeal. Yes, we will. She asked for more details of the write-off. It is our intention to judge exceptional circumstances on a case-by-case basis. The landlord will have a right of appeal if the recovery is due from them.
I am sure that we are all in agreement that, in the current financial climate, it is important to protect public money. Thus, wherever possible, while ensuring that recovery will not cause undue hardship, we should pursue the recovery of overpayments. I therefore urge the noble Baroness to withdraw the amendment.
My Lords, the Minister reminded the House that the current maximum weekly repayment for overpayments is some £10 a week. Will he assure the House that when a local decision-maker decides on the pattern of repayments that may be appropriate, one of the key factors to be taken into account is any other debts and debt repayments that that person may have? Under the old social security system the rule was that no more than 10 per cent of a benefit income should be top-sliced to repay debts for utilities, the Social Fund and the like. Can we have that assurance? Otherwise someone could find themselves trying to repay housing, fuel and pay check debts, and now overpayment debts. Each claim may seem reasonable, but the total may plunge the benefit recipient into total desperation.
My Lords, I thank the Minister for his detailed and careful reply, which contained a number of reassurances. Many of the reforms proposed in the Bill are primarily about changing behaviour rather than reducing expenditure. On the issue of overpayments, it is difficult to argue that the changes to the procedures for repayment fall into the former category. The primary motivations, I understand, are ones of principle and finance.
Until we can be sure that when things go wrong the individual judgment of officials does not subject claimants who have been overpaid to undue punishments, we need clear safeguards. The Minister has tried to reassure the House that those safeguards will be in place. I am reassured by his comments that recovery will not cause hardship and by his reminding us that the DWP would be open to challenge or to judicial review. With great power comes great responsibility, and many Members may believe, like me, that when the DWP alone is at fault the DWP alone should take the hit, and that this ought to be clear in legislation.
However, I am reassured by the Minister’s comments and I beg leave to withdraw the amendment.
Amendment 62ZC withdrawn.
62A: After Clause 113, insert the following new Clause—
“Guidelines to be followed by officials of jobcentres and local authorities when imposing sanctions, penalties or overpayments
(1) The Secretary of State shall issue guidelines applying to claimants which must, when imposing sanctions or penalties, be followed by officials of jobcentres and local authorities.
(2) When drafting the guidelines referred to in subsection (1) the Secretary of State will have regard to guidelines issued by the Sentencing Council covering the determination of fines.
(3) Officials of jobcentres and local authorities shall take into account all the relevant factors and circumstances of welfare claimants before deciding to impose any sanction or any penalty and before deciding to recover any overpayment.
(4) It shall be the duty of the decision makers in jobcentres or local authorities to give reasons for any decision in any case where any sanction or penalty is imposed upon a welfare claimant and where any decision is made that an overpayment is recoverable.”
My Lords, Amendment 62A is in many ways complementary to Amendment 62ZC, which we have just debated.
The purpose of the amendment is to try to ensure that the standard of evidence required of officials in local authorities or jobcentres when imposing civil penalties and recovering overpayments should be the same as that required in the courts when imposing fines and enforcing debts. I set out at length my reasoning for the amendment to the Grand Committee and I do not propose to repeat that now.
In Grand Committee I was grateful to the noble and learned Lord, Lord Mackay of Clashfern, who helpfully suggested that, as tabled, the amendment was too prescriptive. The Minister, while agreeing that it was right and proper that decision-makers gave full consideration to all the relevant facts provided by a claimant, who should also have the right of appeal, suggested that adequate protections were already in place. However, he also agreed to meet those who had drafted the amendment to go through the issues in detail. That meeting has taken place, for which all who attended—I hope that I am speaking for the noble Lords, Lord McKenzie of Luton and Lord Kirkwood, as well as myself—were extremely grateful.
Before that meeting I tabled the amendment in its current form. It proposes that, to better ensure the original intention, the guidelines recently published by the Sentencing Guidelines Council, chaired by Lord Justice Leveson, should be followed. At the conclusion of the meeting the Minister said that he wanted to work with those attending the meeting, whom he recognised as being concerned about vulnerable people, to get the guidance right and compliant with the Wednesbury principles on reasonableness.
The Minister also said that he would look again at the current guidance with the reworded amendment and see whether adjustment was appropriate, not least because of the similarity with the decision-making required, on the one hand, of the courts when imposing fines and enforcing debts, and, on the other, by officials in local authorities and jobcentres in raising civil penalties and recovering overpayments. I hope that the consistency resulting from what I propose will encourage the Minister to accept at least the spirit of the amendment. I note with interest what he said about the code of practice. I am sure that that is the way in which the guidance should be got to officials. I would welcome his reassurance that the guidelines about which this amendment speaks have been included in the working of that code of practice. I look forward to his response. I beg to move.
My Lords, on behalf of my noble friend Lord McKenzie, I also thank the Minister and the noble Lord, Lord Ramsbotham, for that meeting. I know that he found it of considerable interest and use. The noble Lord, Lord Ramsbotham, of course knows rather a lot about penalties, sanctions and their fairness. His amendment seeks to ensure that the appropriate guidelines and procedures are in place when a jobcentre or local authority imposes sanctions, fines or penalties on claimants, and particularly that, when officials impose such penalties, they give clear reasons for doing so.
Clarity about circumstances in which a penalty, sanction or overpayment can be recovered is vital if administrative justice is to be realised but also to enable claimants to have confidence in the system. It obviously also makes the job of officials considerably easier when there is a clear set of steps to follow and a clear description of the circumstances in which they should consider possible hardship to a claimant. It is also essential that the reasons for any sanction or repayment are set out, preferably in writing, so that the claimant, any adviser or a reviewer can understand the grounds on which the decision was taken. We look forward to the Minister giving us assurances that a set of guidelines, safeguards and relevant procedures will be in place so as to meet the aspirations set out in the amendment.
My Lords, I need to start by thanking the noble Lord, Lord Ramsbotham, for arranging a really useful seminar the other week on a range of issues related to sanctions and penalties. I was equally impressed by the content of that seminar, the iron discipline with which it was conducted and how much ground we managed to cover. We are very keen to draw on the expertise of others as we develop our implementation plans. I look forward to continuing to work with interested groups in this collaborative manner. I gave a commitment in that meeting that we would work collaboratively with the groups involved. I am pleased to repeat formally here that that collaboration will happen.
Turning to the substance of the amendment, I hope I have made clear that we are really on the same page on many of these issues. We absolutely agree that clear guidance should be issued to officials making decisions on behalf of the Secretary of State where discretion is exercised. We do this now and will continue to do it under universal credit. Decision-makers will be required to follow this guidance when applying the law to the facts of the case where they consider a decision about a claim, sanctions for non-compliance with work-related requirements, a civil penalty or the recovery of overpayment. As is currently the case, we will make this guidance publicly available.
We spoke about the Wednesbury principles at our seminar, and I can reassure noble Lords that the decision-making process is and will continue to be consistent with these fundamental principles of public law. The department strives to ensure that no decision is influenced by irrelevant factors and that decision-makers act in a rational and fair manner, taking into account all relevant matters before exercising a discretion. For example, the primary legislation expressly sets out that a conditionality sanction applies only if there is no good reason for the failure. In determining whether there is such good reason, decision-makers will have to consider all relevant matters raised by the claimant within a particular time period, including information about a claimant’s health condition and financial circumstances.
It is worth noting that when it comes to failures to meet work-related requirements, we get the vast majority of the decisions right. In 2010-11, just 0.2 per cent of JSA sanction and disentitlement decisions were overturned at a First-tier Tribunal. Of course, the aim must be to get every decision right. We must ensure that our training and guidance equips advisers and decisions-makers with the tools to understand the circumstances and needs of vulnerable claimants, such as homeless claimants and those with mental health conditions. We must also ensure that the notifications and explanations of decisions to impose sanctions or penalties are clear, straightforward and easy to understand. I accept that there is room for improvement here, and we will make that improvement.
I assure noble Lords that, as I have just committed, we will work with stakeholders to ensure that guidance, communication products and decision-making processes are suitably tailored to meet the needs of the range of universal credit claimants.
Despite all these points of agreement—and I think that they are agreements on substance—I urge the noble Lord to withdraw the amendment, only because we do not think there is a need to set out a general duty in primary legislation to take into account relevant considerations or to give reasons as part of the decision-making process. Decision-makers clearly have a general duty under public law to make decisions in accordance with the Wednesbury principles, to consider relevant matters raised by a claimant and to explain their decision to claimants. Our training and guidance is designed to ensure that decision-makers adhere to these duties. This amendment would not bring about a change in approach from decision-makers, nor empower claimants to challenge decisions. I therefore urge the noble Lord to withdraw it.
My Lords, I am very grateful to the Minister not just for those remarks but also for the seminar which he mentioned, where I know that his willingness to listen and what he said was hugely appreciated by the stakeholders. I am very glad that he mentioned the future collaboration because I know that it will also be appreciated by them. What this exercise has shown—the Grand Committee, the seminar and now today—is that it is essential to maintain a dialogue between the stakeholders on the ground and the people responsible to make certain that, if anything is going wrong or there are ideas for making improvements, that should be fed in to the people responsible rather than having to go through a tortuous process.
I am very grateful to the Minister for all that. Out of this exercise, the code of practice that goes down to the officials can only be the better. With that, I beg leave to withdraw the amendment.
Amendment 62A withdrawn.
Amendments 62B and 62BA not moved.
Clause 129 : Information-sharing in relation to welfare services etc
62BB: Clause 129, page 100, line 4, at end insert “or council tax”
My Lords, Clause 129 enables relevant information to be shared between DWP, local authorities and others for prescribed purposes relating to the operation and administration of welfare services and social security benefits. As thinking has developed in relation to new data-sharing arrangements, it has become apparent that we may want to supply social security benefit information to local authorities in connection with the administration of localised council tax schemes. These amendments will enable that, and will allow local authorities to share such information between and within themselves for the purposes prescribed. Making social security information available in this way will help local authorities design and deliver schemes that provide appropriate financial support to residents who are unable to meet the full cost of their council tax. I beg to move.
My Lords, I just want one penn’orth. I completely support these amendments, but they give me the opportunity which I missed earlier in these proceedings to record on the Floor of the House that the single silliest thing in this whole affair is the determination of the Department for Communities and Local Government to have separate council tax benefit systems in every corner of the country. That is a battle to be fought again on another day. I had devised an amendment that could have brought it up today, but I decided that discretion was the better part of valour at this stage. However, there is a local government finance Bill coming down the path. My noble friend—and, above all, his noble friends in the DCLG—should know that some of us are going to go on worrying away at this total absurdity, which I know is not supported in the DWP itself. These amendments may help to mitigate the effects but they will not completely eliminate them, and I shall go on trying to eliminate them.
My Lords, I concur completely with what the noble Lord, Lord Newton, has just said. We obviously will not oppose these amendments, but that should not be taken to mean that we are supportive of this proposition. When I say that I concur completely, I am not saying I am sure that this is the single silliest thing in this Bill—but it is certainly in the top 10. The briefing note that we had makes it clear that the support for council tax in future is likely to be based on a system of means-tested discounts. How on earth that can sit sensibly with universal credit and single tapers is a mystery to me. Maybe we will be enlightened when we get that legislation, which I think will come our way quite shortly. We could have a long debate around this today, as it is a real flaw in the universal credit, but I accept the need for this amendment, as it makes the data-sharing coherent.
My Lords, may I have one word of clarification about the interplay between these provisions on council tax and how they play with the devolved authorities? There are provisions lower down, on page 100, relating to the National Assembly for Wales, but this brings in a new dimension in that local government in Wales comes under the Assembly as well. Is there agreement with the Assembly Ministers on the provisions which the Minister is putting into the Bill by way of these amendments?
Yes, my Lords, I can confirm that we have agreements with the devolved Administrations on this matter. They will be receiving the information in slightly different ways, but we have sorted that out. On that basis, I will avoid the temptation to indulge in a long discussion about DCLG and council tax. Although I know that noble Lords would enjoy that, we have other things to do.
Amendment 62BB agreed.
Amendments 62BC to 62BH
62BC: Clause 129, page 100, line 11, after “services” insert “, council tax”
62BD: Clause 129, page 100, line 13, after “services” insert “, council tax”
62BE: Clause 129, page 100, line 15, after “services” insert “, council tax”
62BF: Clause 129, page 101, line 13, after “services” insert “or council tax”
62BG: Clause 129, page 101, line 15, after “services” insert “or council tax”
62BH: Clause 129, page 101, line 23, at end insert—
““council tax” includes any local tax to fund local authority expenditure;”
Amendments 62BC to 62BH agreed.
Amendment 62BJ had been retabled as Amendment 62BJA.
62BJA: After Clause 132, insert the following new Clause—
“Information sharing in relation to the Social Fund
Before sharing information regarding eligibility for services under section 69(3) of this Act, the Secretary of State shall satisfy himself that the Local Authority is intending to deliver these services in accordance with the purposes set out in the settlement letter that accompanies any payments made from the Consolidated Fund under section 69 and that arrangements have been made to report on the use of these payments.”
My Lords, this amendment has the support of the noble Lords, Lord Kirkwood of Kirkhope and Lord Blair of Boughton, to whom I am grateful. The noble Lord, Lord Blair, asked me to say that he is lecturing in Oxford and, if he is unable to reach the House in time, to assure your Lordships that he means no discourtesy by his absence. He also asked me to remind the House that he has spoken twice in support of the Social Fund earlier on Report, seeking the Government’s commitment to require councils to preserve this money and account for its spend on the objects of the Social Fund. I know that the noble Lord, Lord Kirkwood, is chairing a committee of the House and I am hoping that, like the cavalry, he will come over the hill—or through the Bar—to my rescue. If not, though, his strong support for an amendment along these lines is on the record both in Committee and on Report.
I apologise for returning once more to the Social Fund, and I will not rehearse all the arguments again. The reason why I have tabled yet a further amendment is that I felt in our previous debate that Members of your Lordships’ House were disappointed with the Minister’s response to the concerns raised around the House—disappointed because the Minister clearly agrees with the central underlying objective of these amendments. As the noble Lord, Lord De Mauley, assured your Lordships’ House, we are equally committed to ensuring that this money is targeted on and reaches the most vulnerable people. Previously, the Minister said that it was quite clear that we need to ensure, if we are putting money out for vulnerable people, that it goes to vulnerable people and is not diverted elsewhere.
The money that we are talking about is that which is currently paid out in community care grants and crisis loans under the discretionary Social Fund to provide vital cash assistance at times of acute need. I note that in today’s Guardian the Minister, Steve Webb, writes:
“To say the social fund is set to be abolished is completely false”.
However, in response to a Written Question from Karen Buck MP on 5 May 2011, he stated:
“The Social Fund is not being devolved to local councils. The Welfare Reform Bill includes proposals to abolish the discretionary Social Fund”—[Official Report, Commons, 5/5/11; col. 898W]—
in other words, the part of the Social Fund that we are debating here today.
The vulnerable people to whom the Minister referred include women who have fled domestic violence, young people who have left care and people with chronic health conditions or disabilities who need help with household items in order to live independently in the community. Family Action, to which I am grateful for all its hard work on this issue, has provided noble Lords with a number of examples of the value of the Social Fund to people in such circumstances. I shall quote just one:
“Lisa was awarded a Community Care Grant after being forced to leave her furniture and most of her possessions behind when she fled a violent partner with her three sons. She lived in a refuge and then temporary accommodation. When she moved into permanent accommodation, she had hardly any belongings and no money to furnish the partially-furnished house. Lisa’s fear of being isolated and lonely in her unfurnished, unpainted room was exacerbating her mental health problems, making her unable to unpack any of the items from her move. She slept in the bed of her middle son and her social worker emphasised how important it was to furnish her room, so she could sleep alone and move towards an independent and organised life. Lisa was awarded a grant for a bed, bedding and drawers, which helped her feel more at home, gave her the emotional strength to start unpacking her boxes, and meant her and her middle son were able to sleep comfortably, alone. She said ‘I’ve been waiting for this flat for six-and-a-half years, and for once in my life I can call a place home for the first time. For once in my life, my kids and I have a home… I just want to get myself better’”.
Family Action says that thanks to this help,
“Lisa was able to start rebuilding her shattered confidence”.
The noble Lord, Lord De Mauley, tried to convince your Lordships’ House that the safeguards that he had offered in response to an earlier amendment would,
“ensure that the money intended for vulnerable people goes to vulnerable people”—[Official Report, 11/1/12; col. 215.]
But there are no real safeguards. There will simply be a detailed settlement letter—and I thank the noble Lord for clarifying the contents of it—a specific revenue grant, and a review of a cross-section of local authorities in 2014-15 to see how they have spent the money. While these are all welcome, they are not by any stretch of the imagination genuine safeguards. There is nothing to prevent hard-pressed local authorities spending the money on other pressing demands—and authorities admitted as much in their responses to a DWP survey. It could be to make up the shortfall from the money being devolved for council tax benefit or even, as the noble Lord, Lord Newton of Braintree—now officially crowned hero on this matter—suggested, be spent on a swimming pool. I note that the noble Lord, Lord Fowler, is now in his seat. The irony of my standing on this side of the House, defending the Social Fund, which I attacked when the noble Lords, Lord Fowler and Lord Newton, introduced it, is not lost on either of us.
The Minister’s final word on the subject in our previous debate was to state categorically that a local authority will not spend the money on a swimming pool, as suggested by the noble Lord, Lord Newton. How can he know that? Even if he does know it, how can he prevent it? I am afraid that the noble Lord simply cannot give such an assurance, however much we all wish he could.
The Supporting People grant provides a salutary lesson. Within a year of the ring-fence being removed by the previous Government, it was absorbed into the general area base grant. Despite the present Government emphasising its importance and giving it a degree of protection in public spending cuts, which I welcome, the evidence suggests that many local authorities are cutting Supporting People services disproportionately. Only this month, the Minister Grant Shapps lamented in a letter to the noble Baroness, Lady Eaton, in her capacity as chair of the Local Government Association:
“It is disappointing to see several councils are indicating significant cuts in Supporting People services, particularly for the homeless. It is difficult to understand why some councils appear to be targeting any disproportionate spending reductions on programmes that support the most vulnerable people in their communities”.
However, he is powerless to do anything.
This amendment is devised to help prevent a similar situation arising with the money devolved to local authorities from the Social Fund. It does not formally ring-fence the money, as the previous amendment that we debated did. It simply requires that the Secretary of State satisfies himself that the local authority will use the money for the purposes set out in the settlement letter. This addresses the Minister’s concerns about local authorities that might want to pool their Social Fund allocation. Provided that the Secretary of State is satisfied that the money is being pooled for the purposes specified, there will not be a problem. If it is not being pooled for those purposes, the authorities will not be complying with the settlement letter anyway.
The amendment will also require local authorities to report on the use of these arrangements. As a number of Peers emphasised in our previous debates, this represents a bottom line in accountability for money voted by Parliament. I know the Minister fears that this will create a disproportionate burden on smaller authorities, but I simply cannot believe that it is not possible to devise a light-touch reporting system that addresses his fears while achieving a degree of accountability.
This is a cost-free amendment. Any minor administrative costs associated with it are surely worth it if they ensure that the money voted by Parliament to assist some of the most vulnerable groups in society is channelled to those groups for the purposes intended. I believe that the Minister genuinely wants to meet us half way on this issue, and I hope that this amendment provides him with the means of doing so; or, if there are problems with the drafting, that he will bring forward a similar amendment at Third Reading. I beg to move.
My Lords, I can hope only that my noble friends on the Front Bench have already realised that Newton on Wednesday will not necessarily be the same as Newton on Monday. After Monday, I am amazed that the noble Baroness, Lady Lister, is still prepared to accord me hero status. I give her full credit for that. I do not know whether she regards me as adequate cavalry in substitute for the noble Lord, Lord Kirkwood, or, indeed, the noble Lord, Lord Blair, but here I am on my charger doing the best I can.
I indicated in the earlier debate that I was a heretical supporter of ring-fencing and that I did not want to see this Social Fund money frittered away on other things. All I am going to say now is that I agreed with every word that the noble Baroness said. I had better say straightforwardly to the Minister that if this amendment is pressed and we have not had what I regard as a satisfactory reply, I shall be strongly tempted to vote with the noble Baroness, should she press the matter. In saying this, I am linking it back with my earlier remarks. I have no doubt whatever that the obstacle here is not my noble friend—he cannot comment on this—but the DCLG. I do not think that the localism agenda should stand in the way of making sure that money spent for the purpose of these vulnerable people is spent on these vulnerable people. I therefore strongly support the thrust of the amendment.
My Lords, the key to this amendment—I go a long way with my noble friend Lord Newton on what he has just said—is the settlement letter. What I think the House will need to know is what happens when the local government organisation in question does not abide by the settlement letter. On the answer to that, I suspect, will depend the decision of the noble Baroness on whether or not to call a Division.
My Lords, there is an amazing coincidence here. I remember back in 1985-86 being strongly opposed on the introduction of the Social Fund by someone with the same name as the noble Baroness, Lady Lister, who proposed this amendment. I have to say that she was not alone. It was one of the most controversial changes that we made at that time. We were strongly opposed by the welfare groups and the party opposite. From memory, we were strongly opposed by the noble Lord, Lord Kirkwood, as well—I do not think that he is in his place. Another group who strongly opposed us—I am not sure that even my noble friend knows this—comprised my social security successors at DHSS who also did not want to introduce the measure. They said that it was far too radical. They put it to a meeting held after the 1987 election and around the table at No. 10, with Margaret Thatcher in the chair, that it should be dropped. Happily, they were defeated. Now I see that 20 voluntary organisations have signed up to it being retained.
The Public and Commercial Services Union, with more than 80,000 members in the Department for Work and Pensions, also regrets its passing. Therefore, I hope that it will be of some comfort to the Minister when he is attacked from the other side that sometimes you find after 10 or 20 years that positions change, as has the attitude taken on this measure. It is not altogether surprising that I have a lot of sympathy with the view taken on the Social Fund. I think it is common ground that we need a system for dealing with emergency payments of one kind or another. I think it is also common ground that some of the 67,000 families who will be affected by the cap will need such help. I think that is common ground all round.
As regards the mechanism, I have to say that I still rather support the Social Fund. That is not surprising as my noble friend Lord Newton and I invented it in the first place. It did have, and does have, a number of advantages. The department has experience of how such a scheme works and has local offices with local knowledge which are, however, kept within a national programme with a national budget. Therefore, I should have thought that from the Government’s point of view as well as from the claimant’s point of view it had substantial advantages. There is a risk that different local authorities will pursue different policies with regard to it.
My view is slightly unlike that of my noble friend, to whom I pay the usual tribute. We worked together for a long time. I made the popular announcements and he did the unpopular ones. I see that he agrees with that. The Government have decided to go this particular way and, as I said on Monday, I do not intend to trample over my successors’ proposals. However, I give just one warning, which is the warning of the noble Baroness, Lady Lister, who knows so much. I pay tribute to her for all the work that she has done on social security over the years. If money is to be made available to local authorities for what I shall call Social Fund purposes, we must do everything that we can to ensure that that money reaches the proper destination—otherwise the exercise is all slightly pointless.
We have seen in the health service where this has not happened. Money intended by the previous Government for prevention of ill-health was siphoned off and used for other more general purposes. Whether my noble friend accepts this amendment —it seems unlikely that he will accept it—the House will wish to be assured that we have some way of checking that the money reaches its proper destination. That seems to me to be the crucial point and that is the assurance that the House seeks.
My Lords, it is clear that the nub of this issue is the accountability required to make sure that the Social Fund is used in the manner for which it is intended. I doubt that any noble Lord does not see the significance of that and it has been argued for eloquently and cogently by the noble Baroness, Lady Lister. My ears have suggested to me that there is a deep measure of agreement around the House on this issue. I hope that in his response the Minister will not only recognise that but give some clear way of assuring us that, if he is not going to accept the amendment, the Government have in mind a way forward that will match what the noble Baroness has most properly put before the House.
Lord Brooke of Sutton Mandeville: My Lords, I am not sure that I was entirely helpful to the Government when in Grand Committee I referred to a Liverpudlian case where dirty, if not illegal, work was at the crossroads in terms of the expenditure of money that had been provided by a different department for another purpose. Swimming pools have been quoted as a possible diversionary target for resources in our debates on this issue.
I again make a brief personal note. My late noble relative, who was a councillor for 17 years—the last Conservative councillor for Kilburn in history—had Welsh blood and a Welsh title. When seconding the Loyal Address during the 1970 Parliament in your Lordships' House, he told a story that I shall tell again to indicate that local authorities are not entirely sound on swimming pools. He described the inquest that was conducted in a Welsh borough where someone had drowned while using the municipal swimming pool. At the inquest, the coroner asked the swimming pool attendant in charge of the pool why he had not attempted to assist the lady who unfortunately was deceased. The attendant said in reply, “I can’t swim”. The coroner said, “But surely you were asked whether you could swim when you were interviewed to come and work in this role for the local authority”. The swimming pool attendant said, “I can’t swim. The only question I was asked at the interview was, ‘Are you bilingual?’”. On that note, I indicate that local government behaviour on swimming pools is not wholly reliable and that it was therefore prudent to raise this matter in the debate.
My Lords, I should like to follow that because it is an interesting perspective. I come to this issue as one who has been an ardent devolutionist and as someone who believes in power being passed—obviously, in my case—to Wales and to local government. So, although I come with a different historical perspective, I understand the historical perspectives of the noble Lord, Lord Fowler, and the noble Baroness, Lady Lister, because I read all about it in an article that I am afraid I have lost. It quotes her at the front about how the money would be used in Wales.
I hope that for once the Minister can tell me the mechanism by which the money will be transferred to Wales and Scotland. I understand that it will be part of the local government settlement in England and in Wales part of the Barnett formula. If that is the case, we are transferring the power to deal with those matters to Wales and Scotland. Why should I not argue for that sense of purpose? I am arguing for it and am also arguing for local government to have responsibility. After all, would you expect the swimming pool attendant to have his case heard in London for a swimming pool somewhere in the valleys of Wales? Of course not. The people closest to this—colleagues and decision-makers—will know the local circumstances. This is only a very small part of the Social Fund that is being devolved.
There is accountability because there are elections for local government. Local government is held to account, and the Scottish Parliament and the Welsh Assembly are both held to account by their electors. Clearly, there is a role for those who are receiving the money to be accountable to their electorates. I cannot believe that if there is a purpose to deliver something locally it should not be passed on to local government. We do ourselves a disservice by not accepting that there is a democratic right for local government to exercise this ability. I say to the noble Baroness, Lady Lister, that where I live in my country, her party supports no ring-fencing whatever for local government. It trusts local government to make those decisions. That is a form of devolution that is the right way.
We have to consider what functions are being transferred, whether to Wales or local government. I know that the noble Lord, Lord Brooke, in his usual manner of creating an environment, is absolutely right. If these are very small decisions about loans to people with whom the local council will already be in contact, surely it is right to trust local government to do it. I know that local government in England is ready, willing and able to do the job, and I know that there is an opportunity for their electorates to hold them to account. Sometimes it is important to let go and have the decision-making closer to the people whom it most affects.
Perhaps I may challenge the noble Lord, Lord German. What he is saying is entirely applicable to Wales, where every local authority is a unitary authority and therefore has responsibility for both housing and social services and can read across, for example, from the help that will come from the discretionary housing allowance to the Social Fund. Often the same families need support in a crisis if, for example, a house has been flooded, has caught fire, or if someone is coming out of care, and so on. They will need both housing and social services help, and a unitary authority is rightly placed to give that, provided that it spends the money as it should.
However, the noble Lord has not mentioned that most local authorities in England do not want this because they are lower-tier authorities, and the social services which handle the Social Fund are upper-tier authorities. In the county of Norfolk, which is some 60 miles long and 40 miles wide, yellow lines are put on roads that you do not even drive down, and schools that you have never even visited are closed, which happened when I was a county councillor, because it was too large to be called local government. None the less, that social services authority will be determining the Social Fund for seven district councils, including one wholly urban authority, two semi-urban authorities and three or four rural authorities. As a result, there will be a postcode lottery within Norfolk because a county council of one political complexion will be dealing with half a dozen different authorities below it, responsible for housing and trying to manage the discretionary housing allowance at the same time.
We will therefore have two sets of officials, one at district level and one at county council level, dealing with the same vulnerable family, each of them focusing discretionary money with no mutual interlocking, decision-making or accountability. It is a bloody silly system that is being proposed and I hope that my noble friend presses the amendment to a vote and that, as a result, we give the other place a chance to think again.
My Lords, we support the amendment moved with the great passion and inescapable logic which we have come to associate with my noble friend Lady Lister. I say to the noble Lord, Lord Newton, that I prefer the noble Lord of Wednesday to the one of Monday. As my noble friend said, this is light-touch and effectively cost-free, so we should not have the usual argument about what this would do to the deficit reduction programme. Most noble Lords, with the possible exception of the noble Lord, Lord German, were pretty much on the same page, as the right reverend Prelate the Bishop of Manchester said. To the noble Lord, Lord Fowler, I say that this is not about trying to roll back the decision and retain the Social Fund as it is; it is simply trying to ensure that the money allocated through this process will be spent as it was meant to be. I should have thought that, in these times of austerity, the Government would feel it particularly incumbent on them to ensure that.
The amendment is intended to build on the useful reassurances we had from the noble Lord, Lord De Mauley, at earlier stages in response to concerns we raised about the localisation of the discretionary Social Fund. Those concerns primarily centred on the lack of a ring fence for the money that is to be transferred to local authorities to allow them to provide services that replace those that the Social Fund currently provides to some of the most vulnerable people when they are facing a particularly difficult situation.
Those concerns about the lack of a ring fence were raised by more than 40 per cent of respondents to the Government consultation on reform of the Social Fund. They have been raised by a wide range of charities, including Scope, Crisis, and Family Action, which state that they are seriously concerned that the abolition of the discretionary Social Fund and its replacement with a patchwork of local arrangements will remove one of the final safety nets for some of the most vulnerable and needy members of society.
Those concerns are so acute because of the degree of vulnerability of those to whom the Social Fund community care grant scheme provides support. Thirty-two per cent of those receiving a community care grant in 2009 were disabled, 26 per cent were lone parents and 10 per cent were pensioners. Many women fleeing domestic violence see community care grants as a vital lifeline when setting up a new home on exit from a refuge. The fear is that, without some way to ensure that local authorities use the money for the purposes for which it has been allocated, the needs of those groups will go unmet and the money will be diverted to other purposes—a lesson we learnt the hard way, as my noble friend Lady Lister pointed out, when we were responsible for removing the ring fence for the supporting people grant when we were in government. Crisis points out that councils are, on average, cutting supporting people services by 13 per cent, despite the overall supporting people budget being cut by only 2.7 per cent.
Local authorities themselves are worried about that possibility. DWP research published in December 2011 into local authorities’ plans to replace the Social Fund found that a number of authorities were concerned that without a ring fence and some level of reporting, funding would quickly become amalgamated into existing budgets and that, as a result, its identity, visibility and purpose would be lost. A second concern was that councillors or directorate heads would redirect the funding to plug gaps in other budgets. The most common example mentioned was the social care budget.
The amendment would not place a ring fence around the funding, which the Minister argued would be restrictive. He also argued that the settlement letter which accompanies the transfer of moneys to the local authority will be sufficient to ensure that those funds are used for the purpose for which they are intended—the meeting of often urgent need. If this is the case and local authorities intend as a matter of course to use the funds for this purpose, there should be no barrier to the Minister accepting the amendment, which merely puts in place a checking mechanism to ensure that what he is confident will happen takes place. We support the amendment.
My Lords, during the passage of the Bill there has been much discussion of the reform of the discretionary Social Fund, and how we can ensure that the money intended for vulnerable people goes to them—an aim with which, as the noble Baroness, Lady Lister, generously acknowledged, I am completely in agreement. However, imposing restrictions on local authorities through data sharing, as the amendment seeks to do, would take us a little away from the central issue of how best to ensure that the funding achieves its intended purpose.
The noble Baroness’s Amendment 62BJA would mean that the Secretary of State would have to ensure that he was satisfied that a local authority planned to use the funding, which will replace community care grants and crisis loans for general living expenses, for the purposes set out in the settlement letter, before he could share information with a local authority about eligibility for assistance under the new local provision. The Secretary of State would also have to be satisfied that arrangements had been made to report on the use of the funding.
I appreciate the noble Baroness's intentions in moving the amendment. Despite its drafting, and despite what the noble Lord, Lord McKenzie, said, I read it as another approach to the issue of ring-fencing the funding that will go to local authorities. Although I do not think that it will achieve that, I will say, as I said before, that a ring-fence is not the best way to ensure that the money reaches vulnerable people. Ring-fencing would mean that local authorities could be constrained, for example, from investing in existing services, or pooling the money with funding from pre-existing services to provide a comprehensive and effective support system for the most vulnerable people in their communities.
The Government fully agree that it is very important to have adequate controls in place to ensure that the funds are used in the way intended. We have clear agreement on that point. However, I will explain why the amendment is unnecessary. Other controls are in place to provide checks and balances before, accompanying and following the initial allocation under the new provision. Perhaps I have not been adequately clear about these so far.
First, I turn to the current element of the steps that we are taking—what I might call the “before” steps. Departmental officials have already conducted a great number of meetings and workshops with local authorities to support them in preparing to deliver the new local provision. We will continue with this support by holding a series of workshops with all upper-tier local authorities over the coming months. The workshops will consider in detail how transferred funds could be used to maximum effect from April 2013. Through the sharing of ideas and best practice, they will assist the development of new services and will help local authorities identify how the funds can be used to best effect to support the most vulnerable. The participants and outcomes of the workshops will be published on the DWP website as part of our ongoing package of advice and information for all local authorities.
The settlement letter—what I might call the “accompanying” step, because it will accompany the funding that local authorities receive for delivering the new provision—will set out, as we discussed at some length last week, what the funding is to be used for and the underlying principles, and will describe the outcome that must be achieved. On 17 January this year, having further considered our debate of the week before, I laid out exactly what the settlement letter would contain. My noble friend Lord German made the point that local people and communities can hold their local authorities to account. The detailed settlement letter will help them do that. Furthermore, as I explained, in order to underline its purpose the funding will be distributed to local authorities through a specific revenue grant rather than being included with the rest of their general expenditure in the main revenue support grant.
I shall move on to the “following” steps. Following the introduction of localised assistance, the department has already made plans to conduct a review in 2014-15 to obtain appropriate information from a representative cross-section of at least 50 local authorities, which represents one-third of the total, in order to help inform future funding levels. We have committed to using this opportunity to gather further information about the way in which local authorities have used the funding. I contend that this review will be more valuable than the information required under this amendment. It will tell us about how the provision is working and what the funding is being used for, whereas this amendment would require a judgment to be made about the intention of a local authority before it delivers the new scheme. In addition—and this is critical—as local authorities will not know in advance which of them will be involved in the review, the risk of scrutiny and exposure from the review work will also help to drive their behaviours and, in theory, they may otherwise have been tempted not to comply in full.
Turning to the amendment itself, I suggest that it would be unreasonably burdensome to expect the Secretary of State to make a case-by-case check on every local authority that requires information about eligibility from the Department for Work and Pensions. As I said a moment ago, we estimate it would be approximately 150 local authorities. Indeed, the amendment presumes that local authorities will approach the department about eligibility for their local schemes, but this may not happen in every case. It will be for each local authority to decide which vulnerable people in its area would most benefit from the new local provision. This is the point. This is about trusting local authorities. They are best placed to make these decisions, as they will already be working with vulnerable people in their area through the other services that they provide. This local knowledge will help them to decide how to tailor support, and they may not feel that they need to approach the department for any information in order to do this.
Even if the obligation contemplated by the amendment were necessary, which, as I have explained, we contend it is not, primary legislation would not be the place for it. Regulations under Clause 129 will prescribe the purposes for which the department can share benefit information with local authorities, and the agreements reached with local authorities will make clear that the information is to be supplied only if it is for a prescribed purpose—in this case, determining eligibility for the new local provision.
We are already working with local authorities to make sure that they are ready to deliver this support. The settlement letter will make explicit that the funding is to provide a replacement provision for community care grants and general living expenses crisis loans. It will be clear that the funding is meant for vulnerable people and about the outcomes that should be achieved. The review will offer a check on what local authorities have done with the funding they received and will provide accountability.
The noble Baroness, Lady Lister, asked why a light-touch reporting system cannot be set up. Local authorities will be using money in a variety of ways, all directed towards meeting the needs of vulnerable people. Any system, no matter how straightforward, would, by its very nature, have to be complex to capture and assimilate all the money and the varied information.
The noble Lord, Lord McKenzie, and other noble Lords raised Supporting People as a demonstration, in their eyes, of how non-ring-fencing produces a risk. The Supporting People funding was deliberately incorporated into the main formula grant in order to provide local authorities with maximum flexibility. Our funding will not be included in the overall grant. It will be part of a special revenue grant. In addition, we are working and will continue to work with local authorities before the funding is allocated to devise plans for using and targeting the money and, as I have said before, we will review over one-third of them to ensure that the money has been spent appropriately.
My noble friend Lord German, who must have no idea how grateful I am to him for his very helpful words, asked the important question about Wales and Scotland. The funding will not be transferred under the Barnett formula; it will be allocated through a special grant. The funding will be based on the equivalent Social Fund spend for 2012-13, and it should be noted that Scottish policy is also not to impose a ring-fence.
The noble Baroness, Lady Hollis, asked about the tension between upper-tier and lower-tier authorities. The funding is allocated to upper-tier local authorities in order to provide the greatest possible flexibility to local areas. From our discussions with local authorities, we know that a range of delivery models are being considered, some of which will result in some funding being devolved to lower-tier services such as housing. Decisions about the ultimate funding for each area will be determined by a range of local factors, including the location and nature of existing services, and how these align with areas of deprivation and need and the level of funding that will be devolved. In some less deprived areas it may not be necessary or practical to operate a number of services.
Local authorities have been enthusiastic and engaged with this process and I am confident that, given what I have said, they will continue to act in a responsible and fair way to protect the most vulnerable in their communities. I hope I have addressed the issues noble Lords have raised, and I ask the noble Baroness to withdraw her amendment.
My Lords, I am very grateful to all noble Lords who have spoken. I have to say, when I was calling for the cavalry, I had not expected its generals to be two former social security Secretaries, the noble Lords, Lord Newton and Lord Fowler. I am very grateful to them for what they have said. I particularly thank my new hero, the noble Lord, Lord Newton, for his strong words in favour of the amendment.
The noble Lord, Lord Skelmersdale, rightly said that the key is the settlement letter and what happens if a local authority does not abide by it. I do not know about the noble Lord, but I have not heard an answer to that question. In Committee, the noble Lord, Lord Kirkwood of Kirkhope, and I came to a great defence of the principle of the Social Fund. I would not say that we had been wrong at the time, but we accepted that the Social Fund had worked out better than we had expected. We all agree that it needed reforming. The problem is that reform is not the same as the partial abolition that is taking place now. I would still have preferred the old system of statutory single payments, but that is history and that is not what we are here to discuss.
I am very grateful to the right reverend Prelate the Bishop of Manchester for the point he made about accountability. It is interesting that the noble Lord, Lord German, made the same point in Committee, where I felt that he was not convinced that accountability would be achieved. I know a letter was written to him, and I was not convinced by that letter that accountability would be achieved. The noble Lord, Lord German, raised a question about the local electorate holding local authorities to account. The people for whom the Social Fund is so vital are the people who are least likely to vote in local elections and be on the electoral register. As much as I would like to think that other members of the community will put the interests of potential Social Fund users at the top of their concerns when voting, I am afraid that it is simply not going to happen. Local organisations should not have to prise the information out of local authorities to try to make them accountable at the ballot box.
Yes, we do trust local authorities. This amendment is not about bashing local authorities. This is not an amendment that says, “I do not trust local authorities”. However, local authorities are under huge pressure in terms of spending. We trusted them with the Supporting People grant, but, as I have said, they are making disproportionate cuts in it—not because they want to hurt vulnerable people but because it is easier to make cuts in the money that goes to marginalised groups than it is in, say, weekly bin collection.
I am very grateful to the Minister. I get the sense that his heart is not really in what he is saying today.
He has put up a very noble defence of the Government’s position. But the noble Lord, Lord Newton, put his finger on it. I did not like to say this myself as a member of the Opposition. The resistance to an amendment on these lines is not coming from the Department for Work and Pensions; it is coming from the Department for Communities and Local Government. As the noble Lord said, we should not allow the localism agenda to trump the needs of some of the most vulnerable people in our society.
I very much welcome the full and strong steps that the department is taking to try to engage local authorities in seminars and so forth. That is all very valuable. But ultimately there will be no come-back if local authorities do not use the money for the purposes voted for by Parliament.
I have listened carefully to noble Lords on three or four occasions and each time we inch a little further towards where we are trying to get. But on none of these occasions have I been satisfied that we will achieve genuine accountability and that any mechanisms are in place to ensure that the money voted for vulnerable people will be spent on them. As my noble friend Lord McKenzie said, at a time when we are all being told about public spending being under such pressure, surely it is that much more important that the money is spent on the purposes for which it is intended.
Given that nearly everyone who has spoken has spoken in favour of the amendment and that I do not feel that the Minister has addressed questions put by his own side of the House, I wish to test the opinion of the House.
Clause 133 : Functions of registration service
62BK: Clause 133, page 104, line 16, after “information” insert “contained in a declaration made under section 9(1) of the Births and Deaths Registration Act 1953 or”
My Lords, Tell Us Once is a cross-government programme developed so that people should be required to inform the Government only once of a change of circumstances, such as birth or death. Government Amendment 62BK allows the Registrar-General, superintendent registrars and registrars of births and deaths to transmit information from a birth declaration, as well as information entered in a birth register which is already covered by Clause 133, to the Secretary of State and to verify such information for the Secretary of State.
Birth declarations in England and Wales account for approximately 10 per cent of registrations. The impact can be considerably higher in certain local authorities where the location of the hospital where most births take place falls within a neighbouring borough. In some areas the local authority will be unable to provide the service to up to 80 per cent of customers unless the customer makes two separate visits to the local authority—one to make a declaration of the birth and another when they have received the birth certificate to use the Tell Us Once service.
To ensure that all new parents are able to access the service and to avoid the need for them to inform several government organisations separately of a birth at what is often a busy time for families, I ask noble Lords to accept the amendment.
Amendment 62BK agreed.
Clause 134 : Supporting maintenance agreements
62BL: Clause 134, page 105, leave out lines 1 to 3 and insert—
“(b) in particular, before accepting an application under those sections, invite the applicant to consider with the Commission whether it is possible to make such an agreement.”
My Lords, I shall speak also to government Amendments 62BM and 62CA. In doing so, I wish to put these amendments in the context of the reforms they relate to.
The Government are committed to supporting lone parents. We spend over £6.5 billion on income-related benefits for some of the poorest lone parents alone. Significant financial support is also offered through the tax credit system and child benefit. Our reforms to child maintenance build on this support that the Government already provide directly to lone parents. Our key aim when reforming child maintenance is to ensure that both parents take responsibility. That includes taking responsibility for paying maintenance and for making the right choices about maintenance. This should be seen in the context of our wider ambition to make it the norm that parents work together in the interests of their children, especially when they no longer live together.
Every family is different and the child maintenance system in Great Britain should reflect this. The truth is that the statutory scheme cannot be so detailed and individualised as to be able to deal with every possible circumstance. For too long, parents have been implicitly or explicitly told that the Child Support Agency is the default option. That approach has entrenched conflict and led to an overreliance on the Government providing enforcement action.
The CSA-based system has failed, with the statutory schemes costing around £450 million each year. That could be seen against funding for relationship support for separating parents of £30 million over four years. Furthermore, taxpayers support costs of up to £25,000 for some typical CSA cases and up to £40,000 where we need to take substantial enforcement action. That is money spent by the state chasing maintenance from one parent to give to another. This has led to a system where, overall, it costs about 40p to move £1 between parents. The system must change because it is not working properly for parents or children. It does not represent value for money for the taxpayer.
The reformed system of child maintenance will be based on the principle that collaboration between parents is best for children. We firmly believe that collaborative child maintenance agreements are longer lasting and parents are more likely to be happy with them. Furthermore, we know wider collaboration between parents is clearly associated with better outcomes for children.
I hope that noble Lords will also acknowledge that we cannot be overly simplistic as to where fault lies when it comes to problems establishing maintenance arrangements. In reality, one-third of parents in the CSA identified that they had a friendly relationship with their ex-partners and said there was frequent contact by non-resident parents with their children. Furthermore, these parents reported that their maintenance arrangements were not really a source of tension. The CSA said that it was fairly easy for these parents to discuss financial matters. Our reforms also reflect the fact that over 50 per cent of parents using the CSA told us that, with the right support, they were likely to be able to make a collaborative agreement. Groups working with parents also tell us this. Karen Woodall, director of the Centre for Separated Families, said that,
“the campaign around the proposed changes to the child maintenance system has been largely based on outdated stereotypes around parental behaviour. By offering support to both parents and to the wider family, we believe that the changes will bring about much better outcomes for children”.
However, it is surely not the state’s role to intervene and arbitrate in personal relationships between two adults. Instead we wish to support parents to make an informed decision. That was always the intention of the gateway we provide for under Clause 134. It has become apparent that Clause 134 as drafted, referring to reasonable steps, has been interpreted more stringently than we intended. We do not wish to require parents to take multiple steps determined by us before being able to make an application. That would risk establishing a new quasi-judicial function. It would require us to decide whether a parent had taken reasonable steps and is an impediment to making a collaborative agreement. This would be akin to the complex and intrusive bureaucracy that dogged the early days of the CSA. That is the antithesis of our approach and why we have brought forward Amendments 62BL and 62BM. I hope this clarifies our intentions.
The amendments make clear that our role is to inform the parent approaching us and invite them to consider whether they can make a collaborative arrangement outside the state scheme. This will normally take place when the parent telephones to discuss their options. Where parents wish to pursue it, we will direct them towards wider sources of support. To further make sure support is available for parents, we have announced today £20 million of additional funding. This will be spent working with voluntary and community groups on streamlining existing support and looking at what additional help is needed. This amounts to doubling government spending on relationship support in 2012-13. I hope that, on that basis, noble Lords will be prepared to support Amendments 62BL and 62BM.
Organisations as diverse as the Centre for Separated Families, Families Need Fathers and Relate have all welcomed this announcement. Sarah Caulkin, interim chief executive of Relate, has said that her organisation hopes that,
“this funding will not only allow parents to access support before problems become serious, but also enable as many parents as possible to make their own arrangements to become effective co-parents, which in turn will benefit the whole family”.
I can confirm to the House that this is indeed the Government’s ambition.
These reforms to support parents in collaborating are coupled with reforms to the state-run CSA system. Perhaps I should make it clear that under our reforms the system will still continue to be heavily state-subsidised. However, we want the state-run system to be smaller, enabling us to free up these resources to help separating families who really need that help.
We absolutely recognise that some parents will need to continue to use the state-run service, and we need to do better for them as well. Our starting point for reform is the review by Sir David Henshaw, which was commissioned by the last Government in 2006. The key reform is based around a new scheme recommended by Sir David to replace the Child Support Agency scheme. At the heart of the new scheme will be tough enforcement and collection measures when parents fail to pay maintenance. The Government have developed new processes for identifying those who might not pay and addressing non-payment when it first occurs. The new scheme will also ensure that non-resident parents cannot escape their true responsibilities by refusing to provide us with details on their income. Instead, we will generally access this information from HMRC, which will enable a smoother and faster flow of maintenance to parents with care.
The Government are also committed to ensuring that the most vulnerable parents continue to benefit fully from child maintenance. To this end, we are ensuring that child maintenance payments remain tax-free. In addition, we will guarantee that parents keep all the maintenance, even when they are on universal credit. When money is in payment, child maintenance averages around £32 per week, tax-free, under the CSA. This is a significant financial benefit to the most vulnerable mothers.
Sir David Henshaw also recommended that,
“charging is introduced for users of the administrative system”.
He went on to say that charging would,
“contribute to the objectives of the new system by incentivising private arrangements which can be more successful”.
We agree with Sir David’s findings. The then Secretary of State—now the noble Lord, Lord Hutton—told the Work and Pensions Select Committee at the time of the report that he thought that,
“in general and in principle”,
charging should form part and parcel of the commission’s approach. Subsequently, the then Government took a wide-ranging power to charge as part of the Child Maintenance and Other Payments Act 2008. It is Amendment 62C to that Act from my noble and learned friend Lord Mackay that we will deal with in the next debate. Let me not prejudge that debate, but I shall say something on the principle of charging before flagging an amendment that we propose to make to our powers.
As I said earlier, the Government cannot fairly and should not try to apportion blame between parents. Therefore we firmly believe that, to reform the system and maximise the number of effective child maintenance arrangements, we need to have an affordable but clear financial incentive on both parents to collaborate. With such high numbers of parents who use the CSA saying that it is likely they could collaborate, an affordable financial incentive for both parents is a necessity. The application charge and collection charges proposed by the Government meet these criteria. However, noble Lords will remember that when an application is made and maintenance payments are subsequently made directly, no collection charges are applied. This is the option to pay that is often called often called maintenance direct and is dealt with under Clause 135.
The Government are convinced this approach to charging is the right one and wish to formalise a requirement for us to review based on an evaluation. This would be achieved through Amendment 62CA. We will review charging within 30 months of its introduction. Thirty months will allow a proper sample to be evaluated, including the impacts of collection charges. Within that timescale we will lay a report on the review and the Government’s conclusions on charging before Parliament. I ask noble Lords to support this amendment and the commitment to review.
Child maintenance needs major reform. Fifty per cent of children of separated families have no maintenance arrangement in place at all. We will provide improved statutory child maintenance for those who really need it, and we will of course continue to support lone parents directly through benefits and tax credits. However, we need a fundamental change so that wherever possible parents think twice, take responsibility and do not depend on the state. I beg to move.
My Lords, I will speak briefly to Amendments 62BL and 62BM, and in doing so I draw the attention of the House to my interests, which are in the register. I am a former non-executive director of the Child Maintenance and Enforcement Commission and a former chief executive of the National Council for One Parent Families.
I want to ask a specific point about these government amendments, which seem to be producing a new formulation that would require an applicant wanting to apply for child maintenance through the CSA to consider with the commission whether it is possible for them to make a private arrangement before being allowed to make such an application. Can the Minister please make it clear to the House just what the applicant would have to do? If I am making an application and I simply say, “I wish to make an application”, and the agency says, “Have you considered making a private application?”, and I say, “Yes, but there is no way that he is ever going to agree to it”, is that enough? Am I then allowed to proceed, or is it intended to be a bigger hurdle than that?
My Lords, I welcome the announcement of the additional £20 million for family support services for separating families, which is part of this package of reforms, and in doing so I must of course immediately declare a very direct interest as departing chief executive—this week—of the charity Relate. We provide help and support to separating families, to mothers, fathers and children and to wider family members. I recognise also that this is less contentious than the issues surrounding the reform of the statutory system, which we will be debating a little later, but it is worth a quick comment—not least because of the fact that each year around 350,000 children are directly affected by parental separation.
I am sure that all noble Lords across the House will agree that it is better, wherever possible, to encourage separating parents to make voluntary maintenance arrangements and to provide them with all the necessary practical help and support to do so. I am equally sure that all noble Lords recognise that this avenue will never be possible or appropriate, or even desirable, for all parents, particularly when issues of domestic violence are involved. That is what the statutory service is there to do, quite rightly, but it must be in everyone's interest that as many separating families as possible are encouraged and actively supported to make their own arrangement, not least so as not to clog up the statutory system for those who really need it most. The fact that some 50 per cent of children living in separated families have no effective child maintenance arrangements in place is surely evidence that the current system needs an overhaul. It is self-evident that any new system should be based as far as possible on reducing conflict and encouraging collaboration.
The fact that the funding announced today will allow parents to access more consistent support services as soon as possible across the country, and that it responds very directly to concerns raised by the DWP Select Committee a number of months ago, will be in everyone's interests, particularly those of children. This form of earlier intervention must be a wiser use of resources than waiting for problems to become so intractable, and for conflict to become so entrenched, that voluntary-based arrangements, frankly, become quite impossible.
As a former chair of the Kids in the Middle coalition of charities, I know that high levels of conflict in family relationships are bad for the well-being of everyone involved, particularly the children. Research makes it clear that the two most damaging issues for children when parents separate, which often make effective and enduring co-parenting far more difficult, are high levels of conflict and a lack of contact between both parents after separation. It will hardly be a surprise that the two often go hand in hand and, crucially to the debate today, that where there is contact between the child and the non-resident parent then often financial support arrangements flow as well. There is good evidence for the impact that co-ordinated services can have in this area, addressing financial, legal, housing and practical advice but also emotional support, mediation and a range of other things. I will not detain the House any longer by going through the research evidence that exists in this area, but I find it persuasive.
I stress, as I did in Committee, how detrimental it is to any child to grow up not simply without enough income and financial support but without any role model of a father—as generally the non-resident parent is—as a key figure in that child’s life, providing practical, emotional and financial support.
My Lords, I shall speak briefly, following the noble Baroness, Lady Tyler, who is about to follow me as chair of the Children and Family Court Advisory and Support Service. I speak as someone who has dealt over many years with some of the families who are in greatest conflict and need. The Minister will know that, of the families who separate, 10 per cent go to court. Those 10 per cent are the most difficult families. Often they are very close to families who come through public law, which are the families who really have child protection issues. However, we find in assessment that many of the families who come through private law divorce proceedings may well have these issues.
I agree that there is some need for reform. I welcome the money being put into relationship work and hope that some of that will find its way to CAFCASS, which does a great deal of that work with those difficult families. There is a proportion of families, though, where it is clear that the level of conflict between the families is detrimental so continued contact with both parents—judges have said this—may well not be the answer for those few children.
I am interested, as the noble Baroness is, in who is going to make that assessment and at what point the mother—it is usually a mother, although occasionally it is a father—will know that she is not going to have to continue to engage with an extremely aggressive and often destructive person who has damaged not only her own relationship but that of her children, and when she will be able to bypass all those procedures and be sure that she can actually get maintenance. The likelihood of the man giving her maintenance is slim, but she needs to be able to get by the procedures.
My Lords, it will be fairly obvious to most of your Lordships that these amendments are not entirely unrelated to the amendment that I am going to move in a little while. I am not certain of this, of course, but I have a feeling that the proposed amendments regarding the test for the discretion to be used have arisen out of discussions that I have had, which my noble friend Lord De Mauley has been at too, about the effect of the test in relation to charging. I will not elaborate on that now.
I would just be interested to know on what basis this test was originally put into the Bill. It must have been the subject of instruction; parliamentary counsel are extremely creative, but only on the basis of what they are asked to do. They are very good at finding words to express what you want. I wonder, and my noble friend may know the answer to this, what they were asked to do in the first instance. Does this reflect a change in the underlying request or not?
The third amendment concerns the review. That was certainly mentioned to me by the Secretary of State when I met him a week yesterday. I am entirely in favour of that. However, I suggested to him that it would be fair to do it on my basis and that that would be a real test of how good my suggestion was. However, it was suggested, “No, we will test it on my basis”—that is, on his basis. Therefore, from my point of view there is not much of an improvement as yet, but who knows what may happen? At present, the amendment is very welcome but, so far as I am concerned, it does not help me at all.
My Lords, when the noble Lord, Lord De Mauley, introduced these fairly specific amendments, we had a bit of a broad sweep about the background to where the Government were going on child maintenance. I start by welcoming the £20 million of additional funding that has been announced. The noble Lord said that the Government were seeking to introduce tough enforcement and collection, with non-resident parents not being able to escape their obligations, and with HMRC gross data being used for the relevant calculations. We can sign up to that. In fact, we dealt with that in the 2004 child maintenance legislation, so that is in place; it is not new.
The noble Lord referred to the cost of the scheme—£450 million a year. One of the problems is that three schemes are operating side by side through a transition. I think it was originally planned that by 2012—this year—we should be down to one scheme based on gross data, which should significantly reduce costs. However, I think that has been somewhat delayed by the Government.
As regards tough enforcement and collection, following a question that I raised in Committee, the noble Lord wrote to me indicating that not all the powers included in the 2008 Act had been brought into force. If I am wrong on that, he may take the opportunity to correct me.
Amendments 62BL and 62BM appear, at first reading, to make it harder for parents with care to access the statutory maintenance service. The Bill as it stands provides for applicants to take reasonable steps to establish whether it is possible or appropriate to make maintenance agreements outside the statutory system. A key part of the Government’s reform of child maintenance was supposed to be the introduction of the gateway referred to by the noble Lord, the purpose of which is to ensure that all clients consider the range of their child maintenance options so that they can be directed into the family support services where appropriate. The Government’s White Paper states at paragraph 10 on page 18:
“In some cases the gateway will be a step towards an application to the statutory scheme. Where the parent wishes to pursue that and states clearly the reasons why, the conversation about other options available will be closed and they will be assisted in moving to make a full application”.
There were concerns that this process would be a way of screening out parents, particularly parents with care, from the statutory scheme. These were heightened by the potential loss of the statutory requirement to maximise the number of children benefiting from effective maintenance arrangements, which is an obligation of CMEC but is not to carry over to the successor—the executive agency—when that comes into being. Just a few hours ago we received a letter that purports to provide further clarity to the Bill. The noble and learned Lord, Lord Mackay, touched pertinently on that point. I am bound to say that it is regrettable that once again this information is released so close to our Report sitting. A crucial paragraph in that states:
“Therefore, we are now in a position to provide further clarity to the Bill by making it clear that the only engagement required prior to accepting an application to the statutory scheme will be to invite the applicants to have a telephone call with an adviser to discuss their options”.
Like my noble friend Lady Sherlock, I would like better to understand what that means.
If this is the interpretation that the Government put on the two amendments, it will be important to have this on the record. However, I am bound to say that such an interpretation does not flow readily from the wording, which requires the applicant to,
“consider with the Commission whether it is possible to make such an agreement”.
The term “consider” at least implies a more deliberative process than just a phone call. The process being “with the Commission” suggests the two parties having to agree on some sort of basis. However, if this is not what is intended, it would be very important to have that on the record. Given the lateness of this item in our deliberations, we may have to return to this matter at Third Reading.
The cynic might say that this changed position is an attempt to undermine the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, by removing, in relation to Section 9 of the Child Support Act 1991, a requirement for an applicant to take “reasonable steps” to establish whether it is possible to have voluntary arrangements. We would not accept that, and the noble and learned Lord’s amendment continues to have our full support and stands separately from these amendments.
However, perhaps the Minister will tell us what the future of the gateway service is to be. To be fair, it was always envisaged that it would start by a telephone offering, but is that now to be its steady state? If not, and if it is to be developed into a more extensive engagement, how would that sit with the new government amendments?
To be clear, we have acknowledged the benefit of voluntary arrangements and the prospects of them being more sustainable. We support the development of family support services. We legislated to remove the requirement for benefit claimants compulsorily to use the statutory system and provide what has become the option service. Our strong concern in doing so was not that thousands would rush to use the free statutory service, but that parents with care would drift out of the system and fail to make arrangements at all.
As to Amendment 62CA, we would support a review of fees regulations. That does not mean we accept the structure of the fees proposed. We would prefer it to be done on the basis of the noble and learned Lord’s amendment.
My Lords, I am grateful to all noble Lords who have spoken. Let me turn directly to the issues raised by noble Lords. The noble Baroness, Lady Sherlock, asked, under the amendment, exactly what will happen during the gateway conversation. This also addresses the point made by the noble Lord, Lord McKenzie. We want parents to pause for thought when contacting us, before deciding whether to proceed with making an application to the statutory service.
We believe that the best way to achieve this is for parents to undertake a telephone call with a specially trained adviser. The only requirement on the parents contacting us before entering the statutory scheme will be to engage in this conversation and to discuss whether they have considered their alternatives. The adviser will be able to provide advice and signpost the parent to other support available, if required. Parents can then, if they wish, take time to consider the alternatives and discuss collaboration with the other parent. However, I stress that engaging in the conversation when first contacting us is the only requirement to enter the scheme. Everything else is voluntary. There is no question of us seeking to direct parents to take any specific steps. Where a parent identifies during the conversation that they need to make an application to the statutory service, the adviser will help them to do so. I hope that that addresses the point of the noble Lord, Lord McKenzie.
I share my noble friend’s horror at being asked to “press 1” and so on for different things. I cannot absolutely guarantee that the very first answering of the call will not be that, but the key point is that it will be possible to have a conversation with a human being. That is the gateway.
My noble friend Lady Tyler has much experience in this area and I am extremely grateful for her supportive comments, particular about the additional resources.
The noble Baroness, Lady Howarth, also has a lot of experience in this area. I hope that my answer to the noble Baroness, Lady Sherlock, has addressed the nub of what the noble Baroness, Lady Howarth, was asking. Our reforms will mean that maintenance flows more certainly and more quickly. If someone presented and told us that they had an aggressive partner, we would immediately help them to make a maintenance application.
My noble and learned friend Lord Mackay asked why we took a power to take reasonable steps in the first place. In bringing forward legislation, we wanted to provide reassurance to parents and parliamentarians that we envisaged a light-touch engagement from the parent as a pause for thought. It was considered at that stage that “reasonable steps” had advantages. In particular, we believed that there were parents who could be clearly identified as having no reasonable steps to take in their circumstances. For instance, for those who had just exited an abusive relationship, there would be no reasonable steps to take to consider a collaborative arrangement. However, we have received representations that made it clear that that left interpretation open as to what we would ask people to do. The amendment makes clear that that will take the form of being invited to consider different options when a parent first contacts us. I look forward to the debate in a short while on my noble and learned friend's amendment.
The Government propose to deliver two key things as part of the amendments. Amendments 62BL and 62BM will ensure that we have constrained our powers in relation to the gateway so that they meet our intended light-touch approach. That will give us the opportunity to invite a parent to consider their alternatives when they contact us, but not more. This reflects our original intention, as opposed to any question of dividing parents into two groups—those who have tried and those who have not—with us as the arbiter. Amendment 62CA ensures that we will report back to Parliament with a review and conclusions based on that review within 30 months. That reflects our belief that we have the right approach, but we will evaluate it to ensure that that is the case.
Amendment 62BL agreed.
62BM: Clause 134, page 105, line 8, leave out from “(2)(b)” to second “to” in line 9 and insert “invite the applicant to consider with the Commission whether it is possible”
Amendment 62BM agreed.
62C: Clause 134, page 105, line 11, at end insert—
“(3) In section 6 of the Child Maintenance and Other Payments Act 2008 (provision to allow charging of fees by the Commission), after subsection (2) there is inserted—
“(2A) Nothing in regulations under subsection (1) shall impose a liability on a parent with care for the payment of fees to the Commission where that parent has taken reasonable steps to establish whether it is possible or appropriate to make a maintenance agreement (within the meaning of section 9 of the Child Support Act 1991), and where, having taken such reasonable steps, it is either not possible or not appropriate for the parent with care to do so.””
I move the amendment out of a sense of the need for fairness in these alterations. I should say at the beginning that I am a member of Barnardo’s and I thank others in the voluntary sector who have helped me in the work of contacting your Lordships.
After I sent my letter, one of my senior colleagues said to me, “I was surprised to receive a letter from a former Lord Chancellor inviting me to be a rebel”. I have thought about that. My primary motivation as Lord Chancellor was to get fairness and justice for our people, and I hope that I have not laid that motivation aside on laying down my robes for the last time.
My amendment is about a very simple matter of fairness. The government briefing dealing with the clause in its earlier form included the statement, which all of us may believe to be true, that,
“a significant proportion of parents will not be able to collaborate. For example, where an applicant has a former partner who refuses to engage or pay child maintenance voluntarily there would be no reasonable steps they could take”.
That is the group I am focusing on, because I do not believe that it is fair to require them to pay charges when they are not responsible for creating the need for the use of the service.
The obligation to maintain children is an obligation between the parent and the child which subsists for so long as the child needs maintenance and the parent lives. The mere fact that there has been disturbance and breakdown between the parents is in no sense a reason for not paying maintenance. Therefore, one of the key things that my noble friend Lord Newton and I thought, when this arrangement was being made originally in 1991, was that it was important to separate consideration of things such as contact and other detailed arrangements from the obligation to pay maintenance. That is a clear obligation which, as I said, subsists whatever the relationship between the parties.
My question is simply: is it fair to charge a parent in that group? The suggestion is that the use of charging will create an incentive on both parents to enter into an agreement. I agree that in many cases that will be so, but the quotation I have just given explains that that is not true in every case. I use the example of where the man declines to pay maintenance. It is usually the man as 97 per cent of the cases under the CSA are initiated by the mother as the parent with care. There are one or two where it is the other way round, but I use the mother for illustrative purposes, as long as your Lordships understand that that is not the universal situation. In my view, the only question that arises on application to the CSA—the names have changed once or twice but the name CSA is used in the letter that was kindly circulated this morning—is whether the parent, the father, is prepared to pay maintenance: is he paying maintenance and is he prepared to pay maintenance? That is all. He is not asked anything else.
The idea that I want to have an adjudication of whose fault it was that there was a breakdown is absolute nonsense. Those of your Lordships who have been here long enough will remember that I had some trouble getting through this House a law reform Act of 1996, which introduced divorce without fault. No-fault divorce seemed to me to be the only answer. I do not believe that any tribunal on earth is able to make an absolutely just appraisal of who is responsible for a breakdown in a relationship. I certainly do not want to put that task on the CSA—not at all. I want the CSA to be concerned solely with the question of maintenance, and the obligation of maintenance clearly arises when one is a parent, nothing else. It does not matter what else has happened. As long as I am the parent and the child is still in need of maintenance, the obligation subsists. That is the only question that arises at that stage. The idea that I want to have some kind of quasi-judicial bureaucratic process that will take a great deal of money out of the system is nonsense. I have no such desire.
Those of your Lordships who were here will remember the debate about the Bill—which, as I say, is still on the statute book, not yet implemented. The time will come when it is, probably; at least, I hope so. I am also very keen on what the Government are now saying about the need to try to get voluntary agreement. I am 110 per cent behind that. I believe that voluntary agreement on all the arrangements needed on separation is vital. If we could get that in every case, there would be no need for the CSA and very little need for a good lot of the family court arrangements that we have to have. Sadly, we are in the real world and that is not always possible.
That is the simple point that I wanted to make. I suggested when I had some of these meetings how this could be handled. My idea is that when somebody applies to the CSA and is serious about it, the application should be taken into account and immediately a letter would go to the non-resident parent—the NRP as we tend to call him—to ask whether he is paying maintenance at the moment or is willing to pay, and giving him something like a fortnight or a month to reply. There is no need for any quasi-judicial function or anything of that sort. That is what I want. On that basis, if he says, “I will certainly pay and set up a direct debit tomorrow”, there is no question of the CSA being involved. However, if the CSA is involved to force him to pay, he has the responsibility for bringing that about and the fees should be adjusted. The fees are still subject to discussion. There is no question at present about a strict standard of fee; the fees are subject to discussion. They should take account of the fact that this is the way the scheme operates.
The motivation of the Government for these charges is said to be to try to bring people to voluntary agreement. I am entirely in favour of that. But if that proves impossible, when the woman is at the stage of having nothing more that she can to, she has to pay. What does that do? If anything, it might make her not go to the Child Support Agency at all and the child will lose the maintenance. I cannot see that asking for that is an incentive to do anything that the Government want.
There are other considerations that I would like to mention briefly. As I say, I am entirely in favour of putting as much money and effort as possible into getting people to reach agreement when they fall out—if possible, repairing the relationship, and if not, trying to sort out the consequences of its breakdown. The Government propose an exception to this in respect of domestic violence. I believe that my amendment would take them out of the hole of trying to define domestic violence by reaching the conclusion that where there is the threat of that sort continuing at the time, any kind of agreement between the parties on maintenance is just not possible and therefore not appropriate in terms of my amendment. Your Lordships will notice that the terms of my amendment came out of the terms of the clause before the amendment that was proposed a few minutes ago. It has the full approval of parliamentary counsel obviously, and a very excellent draft it is. This would deal with the question of the exception in favour of those who have been the subject of domestic violence. I do not think that the Government have yet worked out exactly how they will establish that. I have every sympathy with them and offer them an easy way of dealing with the matter.
The statutory provision for charges came in as a result of Sir David Henshaw’s report. He makes it clear that he did not want to see charges as a disincentive to the use of the system. At the stage that I am dealing with and for the group I am dealing with, that is the only possible purpose of it. This does not carry the approval of Sir David Henshaw in his advice to the then Government to bring in the power to charge. This seems to be the situation. It is simple and I am extremely sorry to find myself in a position of opposing the Government. I was anxious if possible to reach an accommodation with them but so far nothing has been offered to me that would be an explanation to your Lordships of why I withdrew from this very principled position. I beg to move.
My Lords, I rise in support of the noble and learned Lord. This is my first intervention in this Bill and it will be brief. I hope that my experience as a constituency MP will be of some assistance to the House. In that capacity I was, I am sure like all MPs, overwhelmed by the number of cases arising from problems of dealing with the CSA. The majority were wives. Mine was a heavily industrialised constituency and industrial workers were not overpaid. The problem was trying to get two family incomes from one pot. All the difficulties arose from that. They were mostly, in fact all in my case, people of modest means. They came to their Member of Parliament because all else had failed. The CSA had failed. It did not have a glorious record. The proposal passed through the House of Commons far too quickly, almost on the nod. It was hardly questioned. It has been relaunched more than once. People at the top were moved but to no avail. From what I heard from the Minister a few minutes ago, this is yet another relaunch. I suspect that the burden on MPs, although I am now out of touch, has not lessened in recent years.
I was aghast when I read the proposal to have a charge. How will it assist people of very modest means before they avail themselves of existing machinery—however bad and unsuccessful it was in many cases? What is the purpose of imposing such a charge on the most vulnerable people? It reeks of unfairness and I support the noble and learned Lord.
My Lords, if anyone wondered why I moved from my earlier position, they would have guessed that it was to stand shoulder to shoulder with my noble and learned friend Lord Mackay. He and I were in cahoots over the attempts to tackle this problem 20 years ago. We were in cahoots with what was said in Committee on this matter, and I have made it clear that I intend to remain in cahoots with him on this amendment.
I have not been at the meetings, but I have had a number of conversations with Ministers and I give them credit for being willing to talk to me as well. I think that my noble friend in front of me will acknowledge that I have consistently said that if they could satisfy my noble and learned friend, I would not seek to push it, but if they could not satisfy him, I would stick with him. Essentially, I share his views. I do not think that it is fair, right or productive. The letter that presumably went to everybody in the House was mostly convincing. I have no problem with the case for reform or the desire to cut the costs. I have no problem with the desire to encourage people to collaborate voluntarily. What I have a problem with is that I do not think that those general points connect to the conclusion that my noble and learned friend’s amendment is wrong. I shall vote for it if he decides to press it, following what has been said.
It is a simple position. I will not rehearse his arguments or seek to elaborate them. I shall make only one other point which relates to the 13-month review. I am in favour of a review, but the case for reviewing it after experience is stronger on the basis put by my noble and learned friend than on the basis put by my noble friend the Minister. If there is evidence that it is discouraging sensible, voluntary arrangements in the interests of children, we can look at it again then. I do not believe that it will—and this would need to be shown before we changed from the basic, fundamental proposition that it is not right, fair or just for a parent with care to have money deducted on these grounds from the money paid for her children.
My Lords, in the family courts the welfare of children is paramount. It is particularly important to remember that in relation to the amendment that the noble and learned Lord moved, which I very strongly support. I have absolute, practical experience as a family barrister and judge, from long before the CSA came into being and took that work from judges. I have vivid recollections of a certain group of parents, principally fathers but occasionally mothers, who absolutely would not pay. There was no point in even asking them—although I understand why the Minister thinks that they should be asked. They would do everything in their power not to pay. The only way they can be got at now is through the commission. It can only do a better job than the CSA, which profoundly failed at the task it was set.
These parents will not pay, and the idea that a mother in very poor circumstances, left with young children by the father, may find herself having to seek social benefit from the state, which she may not have sought before, when the father may have money while she has nothing that the state does not provide, and may then have to pay a fee to try to get money for the welfare of her children, particularly where she has no money and the father may have some, is profoundly unfair. I respectfully and strongly support the noble and learned Lord, Lord Mackay of Clashfern, and hope that the House will support him, too.
My Lords, I, too, very much hope that the House will support my noble and learned friend. I hope that those on this side of the House who are inclined to support him will not consider that they are acting as rebels against the Government. This does not knock the central plank out of the Government’s Welfare Reform Bill, which I am proud to support. I listened to what my noble friend Lord Newton said on Monday and wish more noble Lords had heard it. He spoke eloquently in support of the principles of the Bill. His speech was widely and rightly commended. However, here we are dealing with something very different. We are not torpedoing the Bill. We are injecting a little bit of extra fairness into it.
The noble and learned Lord, Lord Morris of Aberavon, spoke as a former constituency Member of Parliament. I was in the other place for 40 years and saw countless women who came to me in great distress, who would have regarded a fee as a deterrent and who considered that this was further evidence that the system was against them. They often came in despair and because they were in true need; but also because the child for whom they were responsible, and for whom the father was responsible, was in need. We are talking here about children, who are not party to whatever dispute might have divided the marriage, relationship or whatever else. Saying to a woman who comes in distress and despair, “Fill in form X and pay your fee”, would be nonsense. What they need is help, contact with human beings—which is why I made my brief intervention on the Minister's speech a while ago—and support.
The noble and learned Baroness, Lady Butler-Sloss, was quite right to say that some people have no intention of owning up to their responsibilities and paying. The Government's general philosophy is one that I hope that most Members of the House can support. We all know that our welfare system is in need of overhaul and reform and it is a courageous act to face up to that. However, this does not mean that everything in the Bill is right, and this clause needs amending in line with what my noble and learned friend said. He is a man of infinite wisdom and great experience, and is held in the highest respect in all quarters of the House and all parts of the country. He is no rebel; he is a man of common sense and compassion and he deserves support.
My Lords, I will make a simple and straightforward intervention. I will not repeat what I said earlier, but the points I made then were pertinent. I wholeheartedly support the noble and learned Lord, Lord Mackay, and will make two points. It is right that when the noble and learned Lord brought forward legislation that separated maintenance from contact, it took us forward. However, the two things are not separate. A man—it is mainly men; only 3 per cent are women—may feel that he should have contact with his children despite the fact that he has been found not to be safe, not only in relation to domestic violence but to child protection issues. He may believe that he has a right to contact. However, if the court has said, “No contact”, he will definitely not feel that he has to make any payment whatever. One cannot separate the two issues.
I have one further question. Being of a practical turn of mind, I am still trying to work out how the system will proceed. There will be a telephone call with a human being. I do not know whether the human being will have any training or understanding of the issues; where they will come from; or what their background will be. These situations are extraordinarily complex. In the children and family court service, our staff make this kind of assessment when cases come through to ensure that there are no protection issues. They are our most experienced staff; not the least experienced or the clerical staff. Who will do that in future?
After the phone call, who will make a decision? What sort of assessment will be made, in cases of violent marital dispute and child protection, to determine whether someone has to pay? I have not gone into all the issues that were eloquently put forward by other noble Lords around the House about the justice of the matter. Women who may have been abandoned after horrific incidents with men will find themselves being held responsible. As the noble and learned Lord, Lord Mackay, said, this will not affect everybody but only that group. How will we identify them and who will make the assessment?
My Lords, I remember listening to the noble and learned Lord, Lord Mackay, upstairs in Grand Committee. I immediately saw the sense in what he said and backed him. Upstairs, the situation was limited. Here, one sees a fascinating cross-section of all sides of the House thinking that this is the right way forward, and that there is no way the charge should be levied when we all know the dangers that this group of women—I am thinking of what my noble friend Lady Howarth said—may find themselves in. As we have heard, some 97 per cent of those who go to the CSA are women. Many of them are suffering and none of us should be prepared to make them suffer further.
I was sent many letters at that time. I remember particularly an extract from one of them. I will repeat a tiny bit of it because it is also to do with the CSA, which we have heard being criticised and equally we have heard is doing a good job, even though it has had to be reformed several times. She wrote:
“When the payments finally started coming in via the CSA—you cannot imagine the weight that was lifted off my shoulders. I finally felt I could plan ahead for school trips, clothes and other essentials. The relief has been immense. The truth is that the proposals will only penalise the children the CSA is meant to help. Women generally only turn to the CSA when they have exhausted all other avenues. It's an act of desperation”.
“My message to the government is this: you will be hurting the very people you are trying to help. And, I fear, partners who only receive a small payment will just give up altogether. It will be their children who suffer”.
I congratulate the Government on the efforts they have made and on the £20 million that they are going to be putting aside. I am not critical of that at all and I think that their intentions are in the right direction. However, a very interesting cross-section of the House still wishes to continue to support the amendment moved by the noble and learned Lord, Lord Mackay. That is not just a good example of what this House represents and of the wisdom and sense it represents, but it is also the right thing to be doing.
My Lords, I was sitting next to my noble friend Lord Boswell of Aynho, who was the seconder of my noble and learned friend’s amendment, when my noble and learned friend moved his original amendment in Grand Committee. I rise to explain that the reason that we have not heard from my noble friend Lord Boswell is because he is on separate duty in the Council of Europe today.
I hope my noble and learned friend Lord Mackay of Clashfern will understand that I think that on our side we have an obligation to listen very carefully to what the Minister says, and I propose to do that, but the fact remains that a very powerful case has been made in the opposite direction.
I came across a quotation from the Committee stage:
“For even though marriages may break down, parenthood is for life. Legislation can't make irresponsible parents responsible. But it can and must ensure that absent parents pay maintenance for their children”.
That was said by the noble Baroness, Lady Thatcher, in 1990. She went on to talk about setting up the CSA. We have heard a lot about the failings of the CSA, but more than £1 billion changed hands last year through it. Before it was set up, lone parents had only the option of going to the courts to try to enforce maintenance, and in the vast majority of cases, they could not afford to go and could not afford to enforce it if it happened.
There are two very simple reasons for backing this amendment, which is why my name is on it. The first is simple compassion. There is no good reason why a single parent should have to hand over to the state not only £100 up front but up to 12 per cent of the money that is currently going to her children simply to have what is owed to her in law paid.
The second is a question of justice. If the Government’s intention is to change behaviour and to make sure that the absent parent pays up, they should charge him. What can the lone parent possibly do, other than ask, to make him pay up? Yet she will be penalised for his failure to pay. There is no behaviour change that she could possibly undertake, other than to ask nicely. She cannot do anything. That is why she has gone to the state in the first place. She has come to the state to ask for the help that the noble Baroness, Lady Thatcher, recognised all those years ago and set up an agency to give. We must not fail her today.
My Lords, many of my parish priests would endorse the kind of things that we have heard of this afternoon, the many cases where single parents—97 per cent of them mothers—are placed in a most cruel and unfair position. It is only recently, I think, that the Prime Minister said that our society must do more to make fathers understand and take responsibility for their paternal aspects which they have taken on by becoming fathers. What I do not think he said but, unfortunately, what this Bill does is that the mother who is left on her own without any financial backing from that father should therefore pay this huge penalty. That is what this Bill is requiring at the moment. It seems to me that what the noble and learned Lord, Lord Mackay, is putting before this House is a very sensible and compassionate way of undoing an injustice which I do not believe the Government really intended in the beginning. I hope that the Minister will see his way forward to recognising the great power of opinion that he must surely have heard this afternoon in this House.
My Lords, I say right away that I have no hesitation in supporting the amendment of the noble and learned Lord, Lord Mackay of Clashfern. I remember, as I am sure he will remember, the debates we had during the day, and in the watches of the night, over the original CSA Bill. We had certain disagreements at that time, but we have no disagreements this afternoon. Time is getting on, but the point I really want to make is that the Government, in imposing charges, are, in fact, undermining what they want. If there are no charges, the Government are in a win-win situation because it will not only help them financially but it will help family life, particularly for women, and will also give encouragement, perhaps, to the absent male, the absent father, to take a greater interest in the family if he is making a contribution towards the upbringing of the child. I appeal to the Government for their own sake to accept the amendment moved by the noble and learned Lord, Lord Mackay. It is a very sensible amendment that has been supported on all sides. There has been no criticism from any part of the House. I feel sure that if the amendment is put to a vote, the Government will suffer another defeat, and I am not at all sure that politically that is very wise.
My Lords, politicians regularly claim to have fairness on their side. It is sort of part of the trade, and it creates the impression that they are on higher moral ground than the opposition—whether that be the Opposition or the Government—who, by definition, cannot therefore have fairness on their side. In more than 30 years at both ends of this corridor, I can think of very few, if any, debates where we have debated quintessentially just the issue of fairness. It is always linked with a policy, and this is linked to a policy as well but, as has become clear during this debate, what we are really being asked to take a decision on is fairness.
I make no apologies for saying that I had the pleasure, some years ago, of working closely with my noble and learned friend Lord Mackay of Clashfern. I have no embarrassment in saying that I learned from him and benefited from his integrity, wisdom and common sense. If any noble Lords had not had this pleasure and privilege, they will have had this evening. That was as powerful an explanation in simple language of integrity, clarity and humanity as I have heard. I have seldom if ever heard someone put the Government ever so gently but firmly in their place without creating any angst, unhappiness or unpleasantness in the process.
I agree with the noble and learned Lord, Lord Morris of Aberavon, and the noble and learned Baroness, Lady Butler-Sloss: any Member of Parliament can tell stories about the failure of the CSA. The noble and learned Baroness, Lady Butler-Sloss, spoke of her experience of dealing with men who were intransigent beyond persuasion. I cannot be the only former Member of Parliament who has been physically threatened in surgeries by men because I tried to persuade them that I did not have the power to solve their problem. That threat of physical violence stemmed from an antipathy to their former partner which was time and again beyond remedy—in many cases, beyond even consideration.
I have to say to my noble friend the Minister that, just for once, I think the Government have got it wrong. I support what they are trying to do and I know of nobody in either House who would have the gall to stand up and describe the noble and learned Lord, Lord Mackay of Clashfern, as a rebel. They would get laughed out of court if they tried. I cannot stand shoulder to shoulder with him, but they would also have a certain amount of difficulty labelling me that way.
If ever there was a time for the Minister to say, “This has been a very good debate, conducted in good humour but with surprisingly impressive intellectual integrity and humanity, and I will take this back and talk to my colleagues and come forward at Third Reading with the Government’s considered position, bearing in mind this debate”, it is now. I hope my noble friend might take that as a constructive suggestion for the way forward.
I made it clear before I came into the House for this debate that it was not my intention or inclination ever to vote against a proposal moved by the noble and learned Lord, Lord Mackay of Clashfern, my friend, but I did not commit myself on whether to abstain or to support him. Unless the Minister says something wholly remarkable over and above what has so far been said, I will join my noble and learned friend in the Lobby.
My Lords, I do not often vote against coalition policy. I voted for the coalition on Monday, when the coalition was in fact defeated. I voted for the coalition policy then, not because I personally supported that policy but because it was something that I could and should accept as a member of my party and therefore the coalition. This occasion is entirely different. The draft that the amendment replaces has been shown to be very seriously defective. I cannot support that draft. I can and will support the amendment of my noble and learned friend Lord Mackay of Clashfern.
My Lords, I have not spoken previously in your Lordships’ House on this Bill, but I briefly practised as a family barrister and as such I hold the noble and learned Lord, Lord Mackay, in the greatest esteem. However, what initially looked attractive when I received his letter has given me pause for thought.
As a barrister, I witnessed how unresolved issues concerning the breakdown of a relationship get played out in matters concerning money as well as children. Although much has been said on behalf of mothers, who are in the majority in this situation, of course it is not as simple to say that just because the mother has the care of the children she is not sometimes at fault for the fact that maintenance is not paid. I would like to put on record before your Lordships the perspective of fathers, which I think is best described in the lyrics of Professor Green’s “Read All About It”, one of the most popular downloads last year. He was referring to his mother when he said:
“After all, you were never kin to me.
Family is something you have never been to me.
In fact making it harder for me to see my father
Was the only thing you ever did for me”.
It is a heart-rending rap about a child caught in the animosity of a break-up. As I am sure your Lordships will agree, avoiding conflict in the courts or in any other forum helps to limit such animosity, greatly to the benefit of the children.
Will there be rare cases where the lack of payment is entirely the mother’s fault? Yes. Will there be cases where the lack of payment is entirely the father’s fault? Yes. However, in the majority of cases it will be to some extent both people’s fault. If I were convinced that this amendment would address only the concerns outlined by the noble and learned Baroness, Lady Butler-Sloss, I would support it. Unfortunately, I believe that the unintended consequence of this amendment would result in the adjudication of matters that would not assist or encourage amicable ongoing relationships between the parents, which are of the greatest value to the children at the end of the day.
I am afraid it is not as simple as just catching the cases outlined; nor unfortunately are parents always able, in my experience as a barrister, to separate their role as a parent from the issues of the breakdown of the relationship. I would be grateful if my noble and learned friend could please outline how there will be a determination as to whether or not someone has taken reasonable steps without some kind of judicial process, and how introducing any form of fault-based assessment of the parties’ conduct in relation to the payment of money is possible without inadvertently—and I accept it is inadvertently—providing a forum in many cases for the outstanding relationship issues to be unhelpfully vented. I am afraid I am not convinced by the noble and learned Lord’s amendment.
My Lords, I will just take two minutes to deal with that, if I may.
First, I have encountered the break-up of marriage at a variety of levels. I was involved in consistorial legal work before I was elected in 1983, and I spent most of my time in the House of Commons as a spokesman for my parliamentary group and then as a chairman of a Select Committee which endlessly looked at the 1991 Act and all the bits and pieces that flowed from it. It has been quite clear to me as a result of all that experience that if anybody tries to take some lessons and principles from the cases that are conducted in the High Court of the land, dealing with many thousands of pounds at a very high level, where things are fought over and the big silk hanky brigade of the legal establishment makes lots of money, they are a million miles away from ordinary people whose families break up week in, week out. I do not think it is safe to start contemplating the amendment tabled by the noble and learned Lord, Lord Mackay, and its consequences, when seen from that perspective. That is not what this is about.
I mentioned Select Committees. I just want to draw noble Lords’ attention to the fact that the current Select Committee in the other place recently produced a report on this which recommended that where parents with care had taken all reasonable steps to investigate a private arrangement but that was not possible or appropriate, no charges should be made. In my view, there has never been an established case made for charging either parents with care or non-resident parents.
The Henshaw report was an extremely scrappy piece of work. The noble and learned Lord, Lord Mackay, rightly pointed to the fact that even the Henshaw committee, upon which most of the Government’s case is made, clearly said that it did not want any disincentive effect to be imposed as a result of charging. It made a different case altogether. Incidentally, the Henshaw committee report was as clever as to say that we should close down the CSA and have a residual body to chase debts. That is about how sensible some of the recommendations in the Henshaw committee report were. As far as I am concerned, it is true that it was discredited before the ink was dry and it went for ministerial consideration.
This issue is about whether charging will assist collaboration and co-operation between separating parties. I can see no understandable circumstances that charges would make it easier for people to stay together longer. I do not see how that case can be made or that it has been made.
The system we are setting up for 2014 will be much cheaper for a variety of reasons. From an administrative point of view, there is no need to put money into the system because the assessment process, the computer systems and so on will make the whole administration of this, if it all works, a lot easier. It is entirely affordable. The way in which some Ministers have been rubbishing the system is disgraceful. It is not a perfect system but it supports 870,000 children—I repeat, 870,000 children. This is not an insignificant institution which could be done without. Nudging 50 per cent of single parents with care get something like only £20 a week. That is the extent of the money that they derive from the system, but it is essential for those who use it.
Quite simply, collaboration between the parents who are separating will not be assisted by charging. It would inevitably result in less money flowing to the children in the charge of the parent with care. There is no case whatever for charging, so I am compromising greatly in supporting the entirely reasonable amendment moved by my noble and learned friend Lord Mackay. Speaking for myself, I would scrap the whole idea and not give it house room. I hope that the House will come quickly to a resolution and I encourage noble Lords to support the amendment in the name of the noble and learned Lord.
My Lords, this has been a powerful, passionate and extremely well informed debate. If the debate has not been quite unanimous in support of the noble and learned Lord’s amendment, one thing on which there has been unanimity is the esteem in which he is held. On charging and the Henshaw report—which the noble and learned Lord mentioned, as did the noble Lord, Lord Kirkwood—as the report made clear, any charging regime should not dissuade vulnerable and low-income parents with care from seeking maintenance in the first place. That was translated into a White Paper of the Labour Government, which said that charging should be based on three clear principles: it should incentivise non-resident parents to meet their responsibilities; the clear burden of charging should fall on the non-resident parent and not the parent with care; and cost recovery via CMEC should never be prioritised over payments to parents with care.
A host of points have been made. I agree with what the noble Lord, Lord Cormack, said—supporting this amendment will not torpedo the Bill. If it would, I would doubly support it. But even on the basis that it will not, it should be supported. We have heard testament from a number of noble Lords, particularly the noble and learned Baroness, Lady Butler-Sloss, about the complexity and possible difficulty of people’s lives. We have to recognise that people just do not live tranquil, routine lives where you can easily come to agreement. As someone who briefly had ministerial responsibility for the CSA, I saw some horrendous cases about non-resident parents, mostly men, who would do anything to avoid meeting their obligations.
The history of the CSA/CMEC has evolved, and this is perhaps not the occasion to rehearse it. The fundamental point that the noble and learned Lord made was that this is about fairness; it is not about seeking to attribute blame to the challenges that couples find themselves in when they separate. I thoroughly agree with that. I am aware that the noble and learned Lord does not press this matter lightly. As we have heard, he has endeavoured to persuade his colleagues at the highest level in government on the proposition that he is advancing today. We should be guided by what is best for children and whether supporting this amendment would make it more likely that they will benefit from maintenance arrangements. We consider that it will, which is why we support it.
I suggest to the noble Lord, Lord De Mauley, that it would be really good if he could accept the amendment, particularly because so many noble Lords from his own Benches have spoken in favour of it. The clear and overwhelming view of the House is that the amendment should be accepted, which would be the right thing to do, without having to reinforce that with what would clearly be an overwhelming vote.
My Lords, I have enormous respect for my noble and learned friend Lord Mackay, which I know all noble Lords, including the noble Lord, Lord McKenzie, share. I am grateful to him for his amendment and to all noble Lords for their contributions. I have listened carefully—and not, I have to say, without trepidation—to the detailed points made by my noble and learned friend and all other noble Lords who have spoken. I am glad that we have also had a debate within the debate about charging.
I emphasise again that the Government’s reforms and particularly charges need to be seen in the wider context. Perhaps I may start by setting out some of the historical contrast. When the Child Support Act was taken through Parliament in 1991 one of its primary aims was to recoup the money that the Government spent on benefits. This was achieved by reducing lone parents’ benefits by the sum that we were able to collect from non-resident parents. Parents on benefits had to use the scheme in order to further this aim. That was a scheme of its time and was set up with the most noble of intentions, namely reforming a court-based system that was not working.
Today we start in a different place. Lone parents no longer have their benefits reduced at all when child maintenance is received and this Government have been proud to announce that we will extend this to universal credit. We have greater ambitions. We see a key part of the reforms as expanding the support for parents to collaborate. We no longer require parents to use the CSA. We do not want it to be the default option. Where they can collaborate, we believe that that is fundamentally better for parents and children. That is why we cannot accept my noble and learned friend’s amendment.
The proposal would set up a system where the state would be obliged to try to arbitrate. We specifically think that that is what will happen if we use the reasonable-steps test, which surely requires some sort of judgment as to whether an applicant has done all that could be expected to reach a family-based arrangement with the ex-partner.
We cannot see any way to collect hard evidence to show that a parent with care had taken reasonable steps without an inappropriate degree of intrusiveness. We do not believe that the state should try to monitor whether a conversation has taken place about collaboration between two private individuals, the parents. We cannot see how to make this work, not least because parents could quite fairly challenge the state’s discretionary decisions, leading to delays in maintenance flowing and acrimony in the system.
My Lords, I find that surprising when, on a daily basis, the guardian ad litem in a court case can be expected to make similar sorts of judgments between two people as to whether contact should be awarded to one parent or the other. These are the same families, so surely there must be some way in which this kind of assessment could be made. Indeed, it has to be made because the noble Lord said previously that there would be some discretion in relation to marital violence and child protection. How are those assessments going to be made if no assessment is made at all?
Perhaps the noble Baroness will permit me to come to her specific questions in a while.
My noble and learned friend proposes that this could be handled by allowing a CSA staff member to make what I am suggesting would be a subjective decision, and for that decision to be appealable. I ask your Lordships to consider whether legislation that confers on officials a subjective decision and then asks for an appeal system to police those decisions is the right way forward. It is not the Government’s position that that is the case. It would add to the costs for the taxpayer and complexity for parents and staff. One lesson we have learnt since 1993 is that legislation, with the best of intentions, will not work if it is highly complex or subjective in delivery. This approach with its subjective decisions and appeals again risks conflict, and surely none of that is in the interests of the child.
However, to offer your Lordships some views on the costs involved, we have also looked at an alternative approach to delivering the amendment. This would be based on a self-declaration from the applicant that reasonable steps had been taken. This is obviously a porous test that could be open to false reporting. Even then we estimate that the amendment would increase costs in the statutory schemes by over £200 million to the end of March 2019, making these reforms unaffordable. I hope that my noble and learned friend will therefore understand that, in our view, there is a tension at the heart of the amendment. It applies either a test we cannot police or a test that everyone can pass because we are not able to police it. Further, however the amendment is applied, it undermines the core of why we want to introduce charging. To reform the system and maximise the number of effective child maintenance arrangements, we must have an affordable but clear financial incentive on both parents to collaborate. We discussed in Committee what the noble Lord, Lord McKenzie, also mentioned, which is that the concept of charging was introduced in the 2008 Act.
Parents who can collaborate outside the statutory scheme will be provided with the help and support they require. Correspondingly, an application charge for all provides a clear incentive for parents with care to consider collaboration outside the statutory service, with all the benefits that has for children. Without a financial incentive in the form of an application charge, we risk recreating the CSA caseload we currently have, with parents using it despite ultimately telling us they could collaborate. The evidence is clear that we have a system at the moment where 50 per cent of parents using the CSA believe they could make a collaborative arrangement with the right support.
The ongoing collection charges will promote collaboration both outside and within the statutory scheme, and will create a real incentive in the non-resident parent to pay the parent with care direct, in full and on time. If, under Clause 135, the non-resident parent chooses to use this option, which is known as maintenance direct, neither parent will pay collection charges. Furthermore, the parent with care can be safe in the knowledge that if payments are not made, their case will be brought straight back into the full statutory enforced collection service.
The Government also believe that following the introduction of a demonstrably better future scheme it is fair to ask for a contribution to the costs of what, as I explained in the last debate, is a heavily subsidised service. To reiterate, I mentioned that the cost of a typical CSA case is up to £25,000, and that can rise to £40,000 where we need to take substantial enforcement action. It is a system that on average costs around 40p to move every £1 between parents. Furthermore, we will not start collecting charges until the scheme has been running for at least six months to allow the new system to demonstrate that it is delivering an improved service for parents.
We have had a fairly spirited debate on the principle of charging. However, I hope that noble Lords will reflect on the principles I have described and the assurances I have given. We do not want to return to the days when the state was encouraging parents to blame each other since we know that is the worst thing for children. We have a coherent package of reforms starting from a very different place to the 1993 CSA, and charges have a role to play within it.
I turn now to the questions raised by noble Lords. I shall paraphrase what my noble and learned friend said: “I do not want an adjudication. I just want a test of whether the father will pay”. I accept the intentions of my noble and learned friend, but his plan is for a letter to be sent to the father to ask if he will pay outside the scheme. That would be costly and complex. We have over 100,000 applications each year, and the most difficult element is finding the father. Mothers often do not have the father’s latest address, and often that is not the father’s fault, so importing the trace aspect of the application is costly and complex, and will delay us being able to start to process applications for those who need it most.
My noble and learned friend referred to Henshaw’s intentions. The Government agree that we do not want to dissuade those who need it from accessing the scheme. That is why we are carefully considering the level of the charge. But Henshaw was clear in recommending that charging should be introduced to users of the administrative scheme because it,
“would contribute to the objectives of the new system by incentivising private arrangements”.
The noble Baroness, Lady Howarth, asked a number of searching questions. She referred to the risk of the non-resident parent demanding contact as a condition of maintenance. That is a key part of what we have been addressing and we agree entirely with her. If a case enters the system we will use data, for example, from HMRC. There will be no need to obtain this direct from the non-resident parent. A calculation will be made based on that data and he will be required to pay, if necessary by order on his bank account or from his benefits. There will be no requirement, particularly for victims of domestic violence, to have any contact or to reveal their contact details.
The noble Baroness asked about the people who take the calls. Advisers will be using training which has been developed with the input of a large number of voluntary and community experts. Self-declaration of domestic violence will be sufficient, and no application charge will need to be paid. The noble Baroness also asks who will arbitrate on whether the non-resident parent has to pay. What I am trying to get across is that there will be no need for arbitration. The non-resident parent will have to pay based on the calculation. She intervened to ask about discretionary decisions. As I have said, there are around 100,000 applications each year and the nature and scale of the judgments are issues which, I am afraid, fundamentally flaw the amendment.
I am grateful to my noble friend Lady Berridge for her intervention, and of course I contend that she is absolutely right. I do this with trepidation, but I ask my noble and learned friend to consider withdrawing his amendment.
My Lords, I am grateful to all those who have supported me, as well as to those who have spoken but who have not supported me, of whom the number was fairly small. I pay as strong a tribute as I can to my noble friend Lord De Mauley, who, as I said, has been with me at all the meetings in recent times. The noble Lord, Lord Kirkwood, and I had a meeting with the Minister in the Commons, Maria Miller, way back in July. I intimated then, to the highest level of the Government, that I intended to table this amendment, so there is no question of an ambush or anything of that sort.
I re-emphasise that the question that we are debating is whether the non-resident parent will pay maintenance—that is the only question—and the simple way to find out is to ask him. I do not for a moment want to adjudicate on who is to blame for non-payment—that would be idiotic. Apart from anything else, it would be very difficult, just as it will be difficult to police agreements in domestic violence cases unless the Government kindly accept my amendment as a way of doing it. The amendment proposes a very simple, straightforward way of doing it, because, under it, a factor would be whether it was “appropriate” to make a maintenance agreement.
I thank all noble Lords who have supported me, particularly those who have put their names to my amendment. I thank also my noble friend Lord Newton of Braintree, who made it clear in our discussions with the Secretary of State that many of his views were based on constituency representation, of which I have none. Fortunately, three of my ardent supporters have a great deal of such experience.
I regret that I have no real option but to press the amendment. If one is a supporter of a coalition, as I am thoroughly of this one, one has a duty if there is a slight deviation from the norm to do one’s best to bring the situation back on to the correct pathway. It is in that spirit that I invite the House to give its opinion on the amendment.
Consideration on Report adjourned until not before 8.27 pm.
Policing Protocol Order 2012
Motion to Regret
That this House regrets that the order has not been subject to a robust consultation process, thereby increasing the risk of politicising policing decisions through a failure to protect the operational independence of the police.
Relevant document: 46th Report from the Merits Committee.
My Lords, noble Lords will be aware of the concerns on this side of the House about the introduction of elected police commissioners and the risk of politicisation of our police forces. Rather like the NHS reforms, the Government are bizarrely set to draw a service up by its roots when it should be focused on meeting huge challenges. At the same time as these changes are taking place we are seeing 20 per cent front-loaded cuts to police budgets impacting on front-line services, forcing the retirement of some of the most experienced officers currently serving and the closure of many police stations. As we see from the latest crime figures, crime against the person has gone up by 11 per cent and there has been a 10 per cent increase in robberies involving knives. It is therefore extraordinary that, at this time of major challenges for our police services, the Government are pressing ahead with arrangements for elected police commissioners.
We have had extensive debates on this issue and I do not intend to go over those matters. It is good to see the noble Baroness, Lady Browning, in her place. She, of course, spent a great deal of time helping your Lordships with the legislation.
The order before us is one of many. The noble Lord, Lord Henley, kindly sent me a letter a few weeks ago containing a list of approaching 20 orders which will need to pass through Parliament in a fairly brief space of time. The reason for the rush is that the Government wish to proceed speedily in relation to London, with elections in the other 41 police authority areas in England and Wales taking place on 15 November this year.
I have some concerns about the implications of the speed with which the Government are pushing orders through your Lordships’ House and the other place. We can see from the report of the Select Committee on the Merits of Statutory Instruments the problem with that in relation to this important order, which embraces, essentially, the relationship between the elected police commissioner and the chief constable. It is clear that such a protocol should receive robust scrutiny. Noble Lords will know that the Merits Committee identified the relatively short timescale in which the protocol had been developed. It considered that a full consultation might have provided a more complete road test of the robustness of the protocols. Will the Minister respond to that point?
I also refer the Minister to the clarification that the committee sought. Appendix 1 of the committee’s memorandum shows the responses of his department. He will note that the committee remained concerned at the possible ambiguity of some of the drafting of the protocol. The Minister may like to comment on that point as well.
As I have said, elections are due to take place on 15 November in 41 police areas in England and Wales. That is not perhaps the best time of year to hold an election, with dark nights and little public interest so far. There is a real fear that the turnout could be low in these elections. The problem of low turnout is undermining the legitimacy of the elected police commissioners. Whatever one’s view of the principal legislation, now we move towards its implementation I am sure that we all agree that a large turnout would be a good thing, so that the police and crime commissioners have as much legitimacy as possible.
The protocol is important because there is real fear that the operational independence of chief constables could be undermined by political interference by police commissioners. The fact is that, whatever the protocol says, if you as a police commissioner have a hire and fire power over your chief constable and overall budgetary control, in the end what use is the protocol? All the levers are really with the police and crime commissioner.
What happens if a police commissioner is elected on a manifesto which has explicit operational pledges? That may be to abolish speed cameras, which the chief constable might believe save lives and are in his or her operational competence. There will be other examples where the election may be fought over what I am sure we would regard as operational issues. The moment a successful police commissioner comes into power on that manifesto, they will expect the chief constable to implement it. The chief constable may resist that and could perhaps point to the paragraph in the protocol that makes it clear that there should not be interference. We have a situation where almost all the power lies with the elected police commissioner, as I have said, with few checks and balances in the system.
The noble Baroness and I have debated at length the powers of the police and crime panels. She made some modifications in terms of the voting that applies to vetoes exercised by the panel. Overall, the powers of the panels are weak. It is really not clear in the protocol how they will enforce a regular check on the performance of the police commissioner, as set out in paragraph 14. I have no doubt that the noble Lord, Lord Henley, will say that that is surely a matter for the panels themselves. Given that the police and crime panels have so few levers, I would have thought it helpful to outline in some detail the powers that the panels might have to check on the performance of the police commissioner.
One of my fears about the new system is that chief constables will be subject to greater insecurity in their jobs and that we will tend to have a rapid turnover of them at the hands of police commissioners. We know that that happens in the US, which is where the idea came from. I know the health service rather better than I do the police service. I know the problems that have arisen when you have such a rapid turnover of chief execs. At one point there were so many restructurings—I am afraid that both parties have been responsible for that—that you had the ludicrous situation of the average chief executive spending no more than two years in the job. That does not create stability. My concern is that, in the run-up to a re-election for a police commissioner, the temptation will be very present to pick a fight with the chief constable and sack them.
I also raise the point raised by the Merits Committee on paragraph 3.1 of the Explanatory Memorandum. This is about the fact that the protocol is not drafted in legal language. That point was raised by honourable and right honourable Members in Committee in the other place when it considered the protocol. If the protocol is not drafted in legal language would it stand up in a court of law? The Minister might wish to comment on that.
Finally, in bringing this matter to the attention of noble Lords, I know that it is the intention of the Government for the protocol to be reviewed. Would the Minister commit to reviewing this after a period of 12 months—at the end of 2013—so that it can be done in the light of the first year of experience of relationships between elected police commissioners and chief constables? He may say that a system needs longer to bed down but, in view of this being—for me—the most important aspect of the whole architecture of the new policing system, it would provide considerable reassurance if the Government agreed to a review within very quick time. I beg to move.
My Lords, since the House viewed and debated the draft protocol, we now have in front of us the instrument, which has been subject to further consultations. I am very aware that the decision to put it on a statutory basis was influenced by representations made by Members of your Lordships’ House.
The consultation that has continued since the Bill became an Act has of course included the Association of Police Authorities, the Association of Chief Police Officers and the Association of Police Authority Chief Executives. We can be confident that those who really have a vested interest as well as a professional interest in what is in the protocol have continued to have an input into the document we see before us. Those important relationships, which your Lordships’ House has discussed in some detail on more than one occasion, between the chief constable, the PCC, the panel and not forgetting the Home Secretary have been laid out with clarity rather than prescription. I do not think it was ever the intention to prescribe through this document.
Those individual responsibilities and their inter-relationship are extremely clear in this statutory instrument. I clearly heard what was said about it not being in legal language. I am sure the Minister will reassure us in terms of any legal challenge. On reading it, I thought it was rather refreshing. Please God that more statutory instruments appear in language that we can read and understand on first reading. I hope that the Home Office will submit this document for the Plain English Award this year. That would be a first for a government department. I commend that suggestion to the Minister. It is very important not just that those who have to enact this understand it but that the wider public, too, can feel that it is something they can see, read and understand.
Briefly, because the House does not need me to read out the instrument before us, I recall clearly that one matter of great concern was the operational independence of the chief constable. I believe that the language used here clarifies the responsibility of the chief constable for maintaining the Queen’s peace and having direction over the forces, officers and staff while at the same time not going into that prescriptive detail that would quite clearly hamper the activities and freedom of the chief constable to take those operational decisions. That very important point has been well measured and found in the document.
I remind the House that police and crime commissioners have a statutory duty and electoral mandate to hold the police to account. All too often it has been the Home Office that has, from on high, sought to do that. This moves the responsibility down to a much more local and operational level. That democratic mandate brings policing so much closer to the people who are being policed while at the same time reminding us through the appropriate section that the Home Secretary still has and may at times need to use reserve powers with regard to policing.
The role of the panel, which we have debated in some detail on many occasions and on which the Government made considerable concessions when the Bill was before your Lordships' House, is very important. I am sure that in practice it will come to be seen as a very important role in holding police and crime commissioners to account.
I commend this protocol. A good job has been done here. I know that my noble friend the Minister will ensure that where and when necessary, with the appropriate consultation, the protocol will be a living document that will be amended as necessary as the years go by.
My Lords, when I spoke at Second Reading of the Police Reform and Social Responsibility Bill on 27 April last year, I described the Bill as a crucial step towards a thoroughly modernised police service. I did not say that the Bill would in itself produce that; I described it as a crucial first step. As we all know, the issue of PCCs was an essential element in the Bill. In fact, one could well say that it was the essential ingredient in that Bill, especially in so far as handling police finances and, even more importantly, the operational independence of a chief officer or interference with that.
We all remember and understand the difficulties that we had when Clause 1 was voted off the table, as it were, in Committee, and the difficulties that we had in discussing the role of PCCs in that environment. It was a lengthy and very detailed series of debates, and I will not go into them. They are fresh in our memories. But it became very obvious as we went through that series of debates that there was a need for a protocol to flesh out the detail behind what we meant by some of those terms. I personally welcome it and speak in support of it tonight.
After the General Committee debate, which took place two days ago in the other place, I ran off 23 pages of that debate on my computer and could not find a single word that passed any comment to say that the consultation process was less than robust. The Committee preoccupied itself very much with trying to tease out a definition of proper or improper political interference, which comes very close to what we are talking about tonight. But I could find no trace of any disquiet there about a lack of proper consultation. Indeed, the consultation has involved all the three existing major players; it cannot obviously go to PCCs as they do not exist yet—they have not been elected. But it involved ACPO, the Association of Police Authorities and the Association of Police Authority Chief Executives. I cannot think of anyone else that it could have gone to, and certainly ACPO is satisfied with the procedure and believed that its views were put forward in adequate fashion. I think—although at second hand, and I am subject to correction at this point—that the other two agencies felt very much the same way. So with the greatest respect, I disagree with our own House of Lords Select Committee on the Merits of Statutory Instruments, which said in paragraph 3 of the report:
“Given the constitutional importance of the governance of the police service, the Committee considers that a full consultation might have provided a more complete test of the robustness of the Protocol”.
With the greatest respect, I disagree.
If I had been able to express a view to that committee, I would have said as a one-time senior police officer a number of things. The relationship between police officers and police authorities has always had a potential for discord. It is a matter of a healthy tension between individuals and groups of individuals. Nothing that we do today will change that; it has always been in place. I have experienced some very warm relationships with police authorities and, on occasion, some pretty torrid ones. That was what went with the job, and that is how democracy operates in trying to set out a balance. Mostly, of course, good sense reigned and still does mostly; constructive tensions are a good thing, and usually both sides respect each other. If one looks at the history, one can see that the real tensions to date have been few. We have only ever had one—and I referred to it in an earlier debate in your Lordships' House. It concerned Derbyshire, where the balance got so far out of hand in the hands of the police authority that I personally had to declare that force inefficient because it was being starved of funds. So the risks are there, and they always have been there—and of course they will, let us be honest, continue to be there if we have a balance of power shared between the two.
I would have said to the committee that the protocol as drafted, which we are debating tonight, would have been immeasurably useful to me as a chief officer, if I had had that document to hand—and, mutatis mutandis, it would have been just as useful there as it will be in future. I do not think that it can go any further in a description of either political interference or operational independence. That is the view of the practitioners and certainly the view of ACPO.
I refer to two sets of remarks in the House of Commons General Committee of 23 January, first of all very briefly to what Mr Mark Reckless, the MP for Rochester and Strood, said. He said:
“The protocol is a clear and significant document. I should like to put on record my appreciation of all sides of the tripartite, particularly the police”.—[Official Report, Commons General Committee, 23/1/12; col. 8.]
More particularly, the Minister for Policing and Criminal Justice, Mr Nick Herbert, said in winding up that it was,
“important to say that it was always the Government’s clearly expressed intention not to try to define operational independence. The police themselves advised strongly, through ACPO and senior police leaders, that we should not attempt to define operational independence in law”.—[Official Report, Commons General Committee, 23/1/12; col. 19.]
With the greatest respect, I think that that is the correct approach.
There is a pressure point, of course. I do not wish to weary the House with it as it is very obvious and it was obvious all the way through Committee and Report. The pressure point is that when the PCC comes into office he or she will almost certainly ride in on a ticket to address a specific problem or specific problems and will do their best to make sure that they are addressed. The wise chief officer should do his or her utmost to assist that. After all, it is a demonstration of the will of the general public, which all too often has been not exactly suppressed but not exactly clear in the past. Here you have a mandate to address a problem or problems, and so far I have no difficulty with that at all. Presumably, the resources will be put at the disposal of the chief officer but, if that wish or desire by the PCC is outlandish, improper, illegal or ill judged, it is up to the chief constable to try to persuade the PCC to defer from that stated course of action and, if all else fails, to resist it. That is what we have in a democracy, but I do not believe that we are necessarily going to run against that all the time.
I hope that I will not be oversimplifying what I am about to say, but in my professional experience I found that, when push came to shove, political figures drew back from getting too close to operational decisions. They will be rubbing shoulders with you when things go well, but when things do not they will be in the background saying in effect, “That is the operational decision of the chief officer”. I do not want to oversimplify that, and quite clearly that could be the subject of a debate. However, I make the point in general terms—and perhaps I labour it—that there has always been a constructive tension between chief officers and police authorities and their chairmen, and that should and will continue.
In a sense, I regret that we have to spend time tonight debating this, although I understand entirely why we are doing it. We could hardly fail to do so, given the remarks of our Merits of Statutory Instruments Committee. All I would say is that we should try to let good sense, and a sense of balance and mutual respect, flourish in this projected environment. We know that the Minister will review it, when we have had a chance to see whether it has bedded down. It probably is a meritorious decision to do that at the 12-month point, and perhaps again at the three-year point, to make quite sure that we are picking up problems before they get too large. However, let us try to treat both PCCs and chief constables as mature individuals who can rely on the protocol for guidance, and who know that it can be properly amended, in the knowledge that, so far as we are concerned, the professionals in play today are satisfied with the protocol as it stands.
My Lords, you will be relieved to know that my contribution on the Motion will be very brief. I am grateful to the noble Lord, Lord Hunt of Kings Heath, for having secured the time for this debate. I will not go over the ground that he so ably and wisely covered. Suffice it to say that every effort must be made to maintain the global reputation of the British police for being the world’s leader in impartial policing, without fear or favour—no matter the colour of a person's skin, their origin, political beliefs or station in life.
So far as the consultation on the protocol for policing is concerned, I repeat the comments that I made when the matter was debated in your Lordships’ House many weeks ago. We had been assured and reassured, right from the time when the police reform Bill was introduced, that the fear that the election of police and crime commissioners could be hijacked by political extremists was without foundation. Yet we now find that the Government have had second thoughts, and we now have a protocol setting out the boundaries within which the chief constable and the police and crime commissioner will work. I congratulate the Government on their political courage and good sense in accepting that, perhaps after all, such a protocol is necessary to ensure that a maverick PCC or, indeed, chief officer does not upset the essential balance required for the continued good governance of policing, and that the chief constable's traditional pursuance of non-political, impartial policing is preserved.
I support the regret Motion moved by the noble Lord, Lord Hunt of Kings Heath, but if I may, I will finish with one plea. My final comment is to ask that the Home Office finalise the financial management code—as he who pays the piper calls the tune. I trust that this code, after proper consultation, will help to curb any misunderstandings over financial responsibilities and control for all the stakeholders in this new governance structure.
My Lords, I was a little surprised when I saw the terms of the Motion because having lived through the Bill, as other noble Lords did, it seemed that the issue of a protocol was consulted almost into the ground. However, I realise that there may be a distinction between consultation on the content of the protocol and consultation on the statutory instrument. I should fess up; I am a member of the Merits of Statutory Instruments Committee, but I was not there on this occasion. That committee is always particularly sensitive to the need for consultation alongside there being adequate time for Parliament to consider an order before it comes into effect, so I can understand how this arose.
I wondered whether it may have been that the complaint was not about the time spent on consultation but about the fact that the consultees had not come from a sufficiently wide group of people. I am not sure that it could have been different at the time that the work was going on last year, but the landscape will change. There will be more players in place, and I for one am reassured by paragraphs 43 and 44 of the protocol. Paragraph 43 refers to,
“periodic review, in particular during the first term of office of the first PCCs”.
The noble Lord, Lord Hunt, has suggested that that should be a quite early review. That would be useful, because we will then see in office not only the commissioners but the police and crime panels. Police authorities have taken part in the consultation but the police and crime commissioner—I emphasise “crime”—has a wider remit than simply the policing function. I would like to see local authorities, possibly through the panels but in their own right, involved in any further consultation that might take place.
As has been said, this started as a concern about what was meant by “operational”. As I understood it from the fringes, there was endless drafting and discussion involving those who were most concerned about it. I heard one of those individuals say that by the end of it he wondered whether there was any need for a protocol at all. However, we have a statutory protocol and, as the noble Baroness has said, that was because there was such a call for it in the House. We are in an interesting position; we have something of a narrative in the order, which is almost a plain English guide to the statute. Regard has to be had to the protocol, but perhaps the Minister can give the House some assurance this evening as to the status of the protocol as against the statute. I assume that the statute must override it if there is any conflict, but I am not suggesting that I have seen any conflict.
As I read this, the protocol deals not just with “what” but with “how”. That comes not only from the protocol itself but from Section 79(6) of the Act, which says in the definition of policing protocol that it is a document that makes provision for,
“ways in which relevant persons should … exercise, or refrain from exercising, functions”.
So that has a purpose of its own as well.
One of the players that need to find a way of operating will be the police and crime panels, and I made no secret during debates on the Bill that I would like to see them quite muscular. Their scrutiny role is a function that is being developed across Government and indeed across governance, and I think people’s views of what it should comprise are changing—not confined to starkly vetoing an action nor indeed simply holding to account, which probably amounts to getting information into the public domain, but a constructive role. When the noble Baroness was dealing with the Bill, she took that on board and that is reflected in the statute. I would like to see the panels pushing the envelope there as far as they can. The noble Lord, Lord Dear, referred to “constructive tension” and I have written down “creative tension”; I guess it is the same thing.
I use this opportunity to say that I hope the police and crime panels will have sufficient funding to do the job that we expect of them, not be treated as an easy candidate for savings in the police service. They ought to have access to sufficient funding, given that they are succeeding police authorities. They will have a role in budget-making and the budget is intrinsically political—not in the sense of political versus operational but in terms of what it will enable the police service to do.
I, too, wrote down “plain English campaign” in thinking about the approach of the protocol; it can be useful in this incarnation and in future ones, but I do not take the point about lack of consultation.
My Lords, I appreciate that the motivation of the noble Lord, Lord Hunt, may be a fear of the democratic mandate that the PCC will have but, having said that, I am grateful to him for giving us the opportunity both to have a break from the Welfare Reform Bill and, far more seriously, to consider the finer details of the policing protocol which, last summer and autumn, this House argued was a necessity to secure the operational independence of the police service.
I pay tribute to my noble friend Lady Browning, who took the Bill through this House. We are all grateful for everything that she did then. May I say how grateful I am for the chance to hear her today and how much I wish it were she who was still standing at the Dispatch Box to argue this case? Still, I shall do my best to live up to her standards in dealing with the various questions.
I echo the words of the noble Lord, Lord Imbert, when he said that—I hope that I have his words down correctly—we must do all we can to maintain the worldwide reputation of the British police. Yes, that is our aim and it is what was behind the Act as it went through Parliament, which is why the protocol is so important and why we are grateful to the noble Lord, Lord Hunt, for offering us the opportunity to debate it on this occasion.
The noble Lord put a number of questions to me. I counted up to seven; I might have got that wrong, but he will no doubt intervene if I do not deal with all the points that he made. First, he echoed the Merits Committee’s complaints about a lack of consultation, and I will get to that in due course. I noticed those wonderful words from the noble Lord, Lord Dear: it was with “the greatest respect” that he disagreed with the Merits Committee. I have a great deal of respect for that committee—we created it in the run-up to the 1997 election, it is a great committee and we always take its views with great respect—but I also note that when someone says that they disagree “with the greatest respect”, they are disagreeing in pretty strong terms, and I am grateful to him for that.
I also note what the noble Lord, Lord Hunt, had to say about the Merits Committee’s view about the ambiguity of some of the wording, and I will get to that on his sixth point, which was about the protocol not being drafted in legal language and whether it will stand up in court. Again, I was grateful for what my noble friend Lady Browning said about how grateful she was that it had been put in plain English. I assure the noble Lord that the courts are pretty good at interpreting things when they are in legal language, but I am sure that if necessary they are equally good at interpreting things when they are in plain English.
On that small point, I assure my noble friend Lady Hamwee about her interpretation of which came first—the statute or the protocol—that the courts would always have to take the statute first, should there be any disagreement between the statute and the protocol. As my noble friend pointed out, though, there will be no problem.
The noble Lord, Lord Hunt, talked about problems with the turnout for November elections. As he will remember, one of the reasons why they are happening is the delays, possibly those caused in this House, that meant that we had to push back that date, but I am sure that we will still have a very good turnout in due course.
The noble Lord spoke of the fear of undermining the operational independence of chief constables—again, that is something that I will get to as I deal with these matters—and about the fear of greater insecurity for chief constables. The noble Lord’s seventh point was again on the question of whether it would be appropriate to have a review in due course, and I hope that I will deal with that in my remarks.
I shall start with what was probably the noble Lord’s fourth point: operational independence. We have always been clear about our commitment to the absolute preservation of operational independence. As my right honourable friend made clear in the debate in another place, that is not something that can be defined in law but it is a cornerstone of policing in this country. That commitment has been made both here and in another place on a number of occasions.
I turn to the consultation process itself, which seemed to cause concern to the noble Lord, Lord Hunt, although, as the noble Lord, Lord Dear, put it, it did not seem to cause concern in another place, nor does it seem to have caused concern to anyone else here other than the Merits Committee. Again, though, with the greatest respect I suggest that the committee is wrong; as my noble friend Lady Hamwee put it, it has been consulted almost to death.
The order was not drafted in isolation. It relied heavily on the active engagement of the Association of Police Authority Chief Executives, the Association of Police Authorities and the Association of Chief Police Officers, the former Deputy Commissioner of the Metropolitan Police Service, and the deputy mayor for policing and crime and his chief executive in their former capacities as chair and chief executive of the Metropolitan Police Authority and the Greater London Authority itself. I have no doubt that once police and crime commissioners are elected, there will be a need to seek their views on the protocol, but I stress that this document was issued by my right honourable friend the Home Secretary and it therefore reflects her interpretation in the context of the Police and Social Responsibility Act of how the policing landscape should operate effectively. The protocol that we have now had the opportunity to debate and consider is the result of determined negotiations between all those stakeholders, who have a broad range of robust views on operational independence. It is obvious to me that such a range of opinions also extends to debates in another place and to those in your Lordships’ House.
I appreciate that the noble Lord—I think this was his seventh point—would like to see a further review of that protocol before the end of 2013. My right honourable friend in another place gave no firm commitment about a review date, but he said that the Government would consult the PCCs although, as the noble Lord, Lord Dear, made clear, we cannot do so until they exist. However, he also stressed that the protocol, issued by the Home Secretary and setting out her expectations of the formal landscape, will enable the public to understand the respective roles and responsibilities of all parties. That process is obviously open to review in the future but no firm date can be given.
Thinking again about the wording of the Motion in the name of the noble Lord, Lord Hunt, who talks about the lack of a “robust consultation process”, I would also make it clear that this process has not been rushed in any way. We placed in the Library of the House a draft protocol, in which my noble friend Lady Browning invited Members from all sides of the House, whom she later met, to discuss the text. She then acted on the comments that she received. That engagement with Members of the House would not have been possible without the open—at times frank—approach that she took in reaching out to all sides on a matter in which I know she is considered to be above her colleagues. My ministerial colleagues in the Home Office and I are very grateful to her for continuing that process.
I think these numbers relate to the fourth and fifth questions about undermining operational independence and fears of greater job insecurity. I shall say just a little more about that matter for the benefit of the noble Lord, Lord Hunt. As he reminded us, further orders will come before this House so there might be opportunities for other debates on the affirmative Motions and, no doubt, on some of the negative Motions that the noble Lord will seek to find means of debating as well. One of the key themes that has run through the numerous debates that we have had so far on the matter of operational independence and the safeguarding of the officers responsible is the fact that it is very difficult, as my right honourable friend made clear in another place, to define what operational independence is.
Primary legislation and common law provide some clarity on the legal principles that underpin the operational independence of the office of chief constable. For example, Section 29 of and Schedule 4 to the Police Act 1996 require members of police forces to be attested as constables on appointment and set out the wording of the declaration that they must make. Case law sets out the important principles that constables act as officers of the Crown in carrying out their duties, but are not to be regarded as servants of any executive authority, and exercise their powers independently at their own discretion. If the noble Lord wanted, I could cite case law going back to 1611 on that issue. I see that he shakes his head and does not require it at this moment. It also sets out the duty on chief constables to secure the preservation of the peace and uphold the law in their areas in the way that they see fit.
Therefore, striking the right balance in setting some clear boundaries within which we expect the day-to-day relationships between the key parties—that is, the PCCs and chief constables—to operate has been a key point of negotiation. I was grateful for the remarks of the noble Lord, Lord Dear, when he talked about there being possible tension on those occasions but that tension not necessarily being a bad thing. I think my noble friend Lady Hamwee described it as a creative tension. I forget the precise wording that the noble Lord, Lord Dear, used; I think it was “constructive tension”. However, I think we would all agree that tension can exist without being a bad thing on those points.
I hope that such assurances, including those of people such as the former Commissioner of the Metropolitan Police and his deputy, who endorsed the protocol alongside ACPO, the Association of Police Authorities and the Association of Police Authority Chief Executives, will be sufficient to remind the noble Lord that we have got the boundaries right. The protocol is written in plain English, which seems to disturb him, but perhaps I will hear on another occasion that he prefers them to be written in another manner. I am certainly satisfied that, in setting those boundaries, there remains enough flexibility in the protocol for it to be the starting point for a much more detailed and public-focused discussion of how to reduce crime and how to make sure that we get the policing service that we want and one that, as the noble Lord, Lord Imbert, put it, maintains its reputation of being one of the best in the world.
I hope I have dealt with all the points put by the noble Lord, Lord Hunt, and those raised by other noble Lords. If I have not, I will write to noble Lords in due course.
My Lords, I thank the noble Lord, Lord Henley, for his response to this statutory instrument debate and his assiduous attention to detail, which we all welcome. The noble Lord, Lord Imbert, put it so well when he talked about the reputation of the British police, which is of course a matter of concern to us all.
The Merits Committee has come in for a little criticism. Perhaps I ought to point out that the history of the noble Lord, Lord Henley, is a little misshapen. I remind him that the Merits Committee was set up after the Wakeham royal commission recommended such a committee, and it was under the auspices of a Labour Government that that royal commission was established. I had the honour of being the first chairman of the committee. I think the point that the committee made was in the context of the London situation. The Government are rushing all these orders through because they want to implement the Bill in London in double-quick time. The problem with that is that it gives less time for the general consultation and process to be undertaken in relation to the orders. Already, I see that the Merits Committee has reported on another order, the Elected Local Policing Bodies (Specified Information) Order 2011, which we will no doubt consider in due course. It is a pity that there has not been a little more time to consider these in general.
The noble Lord, Lord Henley, is able to reassure the House about the operational independence of chief constables. All I say to him is that when the police commissioner has both hire and fire powers and powers over budget, his or her abilities to delve into the operational matters of the chief constables will be legion. We will have to see. I welcome what he said in relation to a review—that the Government could not say when such a review would take place. However, it would be better—I am grateful to the noble Baroness, Lady Hamwee, for her support on this—if such a review was undertaken as quickly as possible.
On the question of language, of course I welcome plain English. I agree that the protocol is very well written. The specific question was whether it could still be used in court. The point made by the Merits Committee is that the protocol was not written in usual legal language. That was the point that I put to the Minister. He reassures the House that he does not think it will be a problem. I am not sure that the courts are used to dealing with plain English, so perhaps it will be a challenge for them.
On the question of turnout, it was a bit rich for the noble Lord to say that it was all your Lordships’ fault that the election would take place in the dark nights of November. The Government had another choice; they could have brought it in next May. Not only would that have given your Lordships and the other place a little more time to consider these orders in some detail, but we might have been able to knock on doors in the evening in daylight. As it is, the Minister feels that there will be a good turnout. I certainly hope so and we all have a responsibility to do all we can to encourage a high turnout. However, a November election will not necessarily encourage that.
This has been a very good debate and I thank all noble Lords who have taken part. I beg leave to withdraw the Motion.
Welfare Reform Bill
Report (6th Day) (Continued)
Clause 134: Supporting maintenance agreements
62CZA: Clause 134, page 105, line 11, at end insert—
“(3) Any such steps taken under subsection (2A) should be consistent with any advice relating to child poverty provided by the Social Mobility and Child Poverty Commission.”
My Lords, we form a select few still in the Chamber. I remind noble Lords that the Child Poverty Act 2010, which established the Child Poverty Commission, was passed with cross-party support. We believe that there is now similar support for the proposal to expand its remit to deal with social mobility. We welcome that move. However, our Amendment 62F seeks to ensure that the commission has a duty, an obligation and a right to advise Ministers so that the fruits of its expertise, research, understanding and work are put at the heart of decision-making. This is not to replace the Government’s role in decision-making but to input at the appropriate level into the intelligence available to the Minister, as strategies to tackle child poverty are developed and implemented. Amendment 62CZA seeks to ensure that the child maintenance and enforcement policies similarly do not fly in the face of objective, evidence-based advice. The Child Poverty and Social Mobility Commission may be a very valuable think-tank, academic centre of excellence and great publishing venture but without this duty to advise it will not be guaranteed a voice in Whitehall.
We naturally warmly welcome the Government’s Amendment 62JA, which appears to meet our request in Amendment 62K, and which enables Ministers to provide the commission with any resources, including research, which Ministers think are required for it to carry out its functions. Perhaps the Minister will confirm that this will enable the commission to request research directly where it believes that there are important gaps in the data available to it. Will the Minister also outline what might happen if the commission believes that such research is necessary but the relevant Minister does not? While we are delighted that the Government have seen the need for such research, it would be useful if the Minister could also say when exactly he expects the new commission to be established, as we need its input. These amendments are needed to strengthen the role of the Child Poverty and Social Mobility Commission. Amendment 62F is central, not an add-on, to the work of the commission. It would restore the duty for the commission to give advice to Ministers on the preparation of their strategy. The DWP note states:
“The Government believes that policy development should be the responsibility of Ministers … and should not be delegated to arm’s length bodies. The Commission’s current advisory role inadvertently provides a route for Ministers to avoid accountability if the Strategy proves ineffective by shifting responsibility to the Commission”.
It goes on to state that the commission will henceforth only be able to give advice on technical issues around the measurement of poverty and social mobility.
We welcome the strengthened accountability whereby the annual report of the commission will report on progress towards the target. Far from being incompatible with the commission providing advice on the strategy, part of that advice comprises being able to input into Ministers’ thinking on matters beyond just technical issues around measurement. A serious commission with quality members and staff will be hard to establish if it is denied the existing duty of advising Ministers. What, after all, will be the point of it as opposed to having this work done by a university department? There is no chance that Ministers would simply delegate development of a strategy to an unelected commission. It is clearly Ministers on whom the ultimate duty to eradicate child poverty falls, and who will be answerable in this House and elsewhere for the success of that strategy. Placing on the commission the duty to give advice to the Government would strengthen its role and status, allowing it to provide the independent scrutiny, intellectual challenge and source of expertise that were envisaged in the original Child Poverty Act, which passed with cross-party support. I beg to move.
My Lords, I rise briefly to support the amendment of my noble friend Lady Hayter. However, her case was made on the assumption that the commission will have expertise. The original requirement that commissioners must have expertise relevant to the work of the commission has been taken out by this legislation. Apparently, the Government have argued that, because the commission will be a reviewing rather than an advisory body, the expertise requirement is no longer needed in the schedule. However, as End Child Poverty points out, this makes no sense. Reviewing requires just as much expertise as advising.
I should therefore be grateful if the Minister could give a rather better explanation as to why that provision has been taken out, because it is in danger of weakening the commission. I understand that the commissioners will be appointed through the non-departmental public body appointing process. Can the Minister explain how the process will work in this instance? What type of expertise do the Government believe is necessary for the commission, taken as a whole, to have? How will the NDPB appointment process ensure that the commission has such expertise? We are of course talking about expertise on both child poverty and social mobility. It is perhaps also worth considering not just traditional academic forms of expertise but the expertise born of experience.
My Lords, at the start of these two groups of amendments on the child poverty commission, I want to make it clear that this Government are absolutely committed to tackling child poverty. Our child poverty strategy, published in April last year, set out the package of reforms that we are implementing to ensure that no child faces a life trapped in poverty. As part of this, we want to create a new and more powerful commission that can assess the progress made as reforms are implemented.
Amendment 62F seeks to ensure that the commission continues to provide advice to the Minister as to how to eradicate child poverty. As noble Lords are aware, the new Social Mobility and Child Poverty Commission differs from the original child poverty commission in a number of important aspects. First, it will have a broader remit that will encompass social mobility as well as child poverty. Secondly, it will for the first time have the power to publicly assess government progress. The previous child poverty commission’s role was simply to provide advice to government. The new commission is required to produce an annual report that assesses whether the Government are taking the steps that they said they would in their strategy, and it will therefore have the opportunity to hold the Government to account for the steps that they are taking and point out where they are falling behind. This will ensure that Ministers are still responsible for developing the strategy, as is right, but that there is external examination to ensure that it is being implemented.
Finally, the commission will no longer play a direct role in the development of the Government’s child poverty policy. This third change is crucial if we are to maintain our commitment to ensure that unelected public bodies are not established unless there is a clear need for their work to be carried out independently of government. This is one of the three key principles of the review of public bodies carried out by the Government last year. It is the role of the Civil Service, directed by Ministers, to develop policy. This is not a job for external bodies.
We cannot justify establishing a public body to provide advice when there is already a wide variety of ways in which government can access such guidance. Indeed, many of the organisations that we might expect to see represented on such a body provided recommendations on the current child poverty strategy via our extensive consultation exercise. Giving a single public body a statutory power to provide advice to government on child poverty policy also risks undermining ministerial accountability. It offers a degree of scope for Ministers to shift responsibility for their policy to an external body. When publishing its report each year, the commission will have the opportunity to advise the Government on steps that they should be taking to implement the strategy. As an independent body, the commission would be able to respond to government consultations and put points to Ministers, alongside other organisations with an interest. It is a fundamental principle of this Government that Ministers are accountable for the policies and strategies they put forward. Therefore, while we will continue to consult widely on this policy area, we do not believe that the commission should be given a special, statutory role in providing advice.
I can tell the noble Baroness, Lady Hayter, that we are committed to establishing the new commission as soon possible, once the necessary legislative changes are made. That means, given that I need to define “as soon as possible”, that as soon as the amending legislation has been passed we will begin to put the new commission into place.
If the commission thinks research is required but the Minister does not, whether or not a particular request is granted will be a matter for private discussion between the Government and the commission. The commission will be able to request research directly; there is provision for it to do that.
On the issue of the expertise on the commission, raised by the noble Baroness, Lady Lister, we intend that it have the appropriate balance of expertise in child poverty and social mobility and we agree that a commission without specific expertise in these areas would not be effective in carrying out the functions set out in the Bill. How will we conduct the appointment process? All members of the commission, including the chair and the deputy chair, will be appointed using a fair and open recruitment process which meets the standards required by the office of the Commissioner for Public Appointments.
I am sorry to interrupt, but I also made a point about expertise born of experience. I sat on the Commission on Poverty, Participation and Power, half of whose members had experience of poverty. It was one of the most rewarding experiences of my career, because the insights of those with experience of poverty were such that I could not bring to the subject. Will the Government be open to such expertise?
Yes, my Lords. I hope that I was making clear that our intention is to get people who are experts in the area. It is hard to overspecify what that means, but people in that category could provide a powerful insight. I am not going to write the job spec in detail tonight, but clearly those would be attractive sets of experience for the commission.
Amendment 62CZA would require that any steps taken in relation to collecting child support maintenance should be consistent with advice given by the Social Mobility and Child Poverty Commission. I will stick precisely to the point in relation to the commission rather than straying back into some of the discussions we had earlier this evening. Our view is that the commission should not be involved in developing policy. From that it follows that we do not think that it should develop policy on child maintenance. That is something for which Ministers alone should be responsible—or perhaps responsible for alongside the House of Lords.
Moreover, where payments are reliable and regular, child maintenance provides parents with care with a separate income stream that may improve the lives and life chances of some children in or near poverty. We have concluded that child maintenance payments are estimated to have a small, non-reportable impact on the number of families living in relative income poverty as currently measured and with current data sources.
Amendment 62JA, the government amendment, and Amendment 62K, would both create an explicit provision in the Bill for the Government to carry out research at the commission's request if it so wishes. We addressed that issue briefly in Committee. I gave assurances that having that provision in the Bill is unnecessary. The Bill already enables Ministers to provide the commission with any resources, including research, which Ministers think are required for the commission to carry out its functions. However, given that the issue has arisen again, we decided to table an amendment to allay any remaining concerns. The government amendment provides that Ministers have the power to carry out or commission research at the request of the commission if they so wish.
Before I ask the noble Baroness to withdraw the amendment, I make it clear that the Government do not consider any of the amendments consequential. I commend Amendment 62JA.
I must respond to the Minister’s reiteration of the Government's commitment to reducing child poverty. He will be aware that I shall therefore quote from the IFS study and its prediction that the number of children in poverty, having fallen to its lowest level for 25 years, will, under the coalition Government’s policies, rise to its highest level since 1999-2000 by 2020, at which time one quarter of all children will be poor. We of course look to the Government to prove the IFS wrong by making sure that that prediction does not come true.
I am interested that it is the move to get rid of quangos that has led to the desire to remove the word “advice”. I think that that is wrong. In addition to needing expertise, on which there is some agreement, the commission needs authority to be able to advise ministers. That is not policy-making; it is an input into policy. Describing its advice as being alongside other bodies devalues it, but the Minister has said that he wants this to be a more powerful commission. If that is the objective, clearly, we support it. We like the change of name and remit. I hope that he can hold to that in setting it up. I guess the great bribe to us this evening, having been told that it would be set up when the Bill was through, is for me to sit down as soon as possible and enable the Bill to be enacted so that the commission can be set up.
I hope, however, that even if the word “advice” will not be there, Ministers and future Ministers will take the output of the commission extremely seriously as they develop policy, not simply in the implementation of it. With that, I beg leave to withdraw the amendment.
Amendment 62CZA withdrawn.
62CA: After Clause 137, insert the following new Clause—
“Review of fees regulations
In section 6 of the Child Maintenance and Other Payments Act 2008 (fees), after subsection (3) there is inserted—“(3A) The Secretary of State must review the effect of the first regulations made under subsection (1).
(3B) The review must take place before the end of the period of 30 months beginning with the day on which those regulations come into force.
(3C) After the review, the Secretary of State must make and publish a report containing—
(a) the conclusions of the review, and(b) a statement as to what the Secretary of State proposes to do in view of those conclusions.(3D) The report must be laid before Parliament by the Secretary of State.””
Amendment 62CA agreed.
62D: After Clause 138, insert the following new Clause—
“Standards of decision-making
Section 81 of the Social Security Act 1998 (reports by Secretary of State and Child Maintenance and Enforcement Commission) is repealed.”
My Lords, government Amendments 62D and 67A deal with the requirement on the Secretary of State and the Child Maintenance and Enforcement Commission to prepare reports on the standards achieved in making decisions which may be appealed to the First-tier Tribunal. The duty was introduced in the Social Security Act 1998, and only three reports have been laid before Parliament since then. The reports have added little to drive for change within the department to improve standards in decision-making and they have not generated any debates or wider public interest.
In the past, publication of the report has been fraught with delay because of National Audit Office concerns over the quality of data. The department does not directly collect data on decision-making for the majority of the benefits that it administers and the best data available that would be used for this report are already in the public domain. The data which are publicly available include the monetary value for error figures for most Jobcentre Plus-administered benefits. Similarly, CMEC publishes its accuracy statistics every quarter in the publicly available quarterly summary of statistics. Accuracy figures for benefits formerly administered by the Pension, Disability and Carers Service used to be published in the PDCS annual report and will in future be published in the DWP annual report and accounts. Her Majesty’s Courts and Tribunals Service is also already publishing its statistics quarterly, including receipt and disposals by benefits types, outcomes of appeals and outstanding caseload. The report referred to in our amendment does not therefore add anything to the sum of knowledge. It will only duplicate the publication of data that are already in the public domain. To produce further new data in support of the report would add a substantial and unnecessary administrative cost and process for very little gain.
Our commitment to improving the quality of decision-making is met in other more effective ways. The department is working closely with HM Courts and Tribunals Service in the joint appeals taskforce to improve standards in decision-making and, as a consequence, reduce the caseload of appeals. Within the department, Jobcentre Plus has introduced the new national checking team, which was rolled out nationally on 31 October 2011. This is in response to a commitment to the Public Accounts Committee to extend the existing independent checking teams deployed in the Pensions, Disability and Carers Service. Its accuracy support teams are already deployed to measure attendance allowance, disability living allowance, state retirement pension and pension credit. The checking teams will examine the end-to-end benefit process, covering all aspects of delivery and focusing on improving overall standards. The aim of the checking teams is to identify performance improvement, not to meet number targets. The current NCT is covering IS and JSA new claims and will expand in due course to cover existing IS, JSA and ESA claims. The full national checking team will be in place by the end of June 2012.
On balance, in the light of all the department’s other activities, I do not believe that, even if further resources were to be expended, the reports would provide any additional information leading to substantive improvements that are not already being addressed, for example, through work by the department with HM Courts and Tribunals Service to improve decision-making so that there are fewer appeals, taking note of feedback from the tribunal judiciary and training for decision-makers. We know that critical to the success of welfare reform will be the quality of the assessment and the quality and standards of decision-making. A substantial amount of work has been carried out to ensure that that will be the case. For example, for the new personal independence payments we will be thoroughly testing our processes before implementation in a model office, enabling us to see how they affect the administration of the benefit.
We will start with a phased introduction to new claims only until around the autumn of 2013. While we recognise that this will be only a short period of testing the assessment and its associated processes will remain living tools well after implementation, and we will continually monitor and evaluate them. Perhaps I should also remind noble Lords that we tabled an amendment that will require us to conduct two independent reviews into the assessment criteria and processes and that the first report must be made available to Parliament within two years of the implementation of personal independence payment. The same applies to changes to child maintenance under Amendment 62CA, which ensures that we will report back to Parliament with a review and conclusion based on the review within 30 months. That reflects our belief that we have the right approach and we will evaluate it to ensure that that is the case. The department is currently developing an approach to the evaluation of universal credit which will address the key aspects of universal credit delivery and implementation.
I assure your Lordships of the department’s continuing commitment to improving standards. I reiterate that I do not believe that this statutory requirement provides any additional benefit, so we wish to repeal this duty. However, our commitment to improving the quality of decision-making and transparency will not diminish. With those reassurances I ask noble Lords to accept Amendments 62D and 67A.
My Lords, I thank the noble Lord, Lord De Mauley, for that extensive introduction to the amendment. The effect of it would seem to be to remove CMEC’s duty to report on decision-making standards. The Government judge that this statutory duty provides no particular benefit: first, because the majority of the data is already in the public domain; and, secondly, because the reports have not generated any debate or wider public interest. When the noble Lord introduced the amendment, something he said about difficulties with NAO data rang a bell. There are historical issues around that, which I understand and acknowledge.
I have two questions. If the majority of the data is already in the public domain in other forms, what is included in the minority of the data that is not, and therefore that might be missed? Secondly, the noble Lord went through an extensive list of benefits that might be affected. I would like to be clear about this. The amendment removes Section 81 of the Social Security Act 1998. That covers a range of appeals covered by Chapter 1 in Part 1 of the Act, which will include appeals other than those relating to CMEC. Of particular interest are the data on appeals outcomes in relation to ESA, which have been a particular bone of contention. The statistic that 40 per cent of appeals are successful—I think that that is roughly the latest position—has driven a focus on the process. I would like to be clear about this. Perhaps the Minister will expand a bit on the range of benefit appeals that the amendment seeks to cover.
My Lords, that would be fine, as long as the noble Lord will concede that if we feel, following that and having read the record, that anything is unresolved, we will bring it back at Third Reading—within the rules, I hasten to add, as the Chief Whip is sitting alongside him.
My Lords, there has been much talk of the cavalry this evening, and mine has now arrived—at least it would have if I could read it. Decision-making in both the department and CMEC will be repealed. This will cover all benefits. Does that help the noble Lord?
I think that it may, if I understand the scope of it. Does it mean, for example, that the data that we get relating to appeals and ESA—I cannot off the top of my head remember how those data get into the system—will be included? That is a very important statistic and is likely to remain so. If it will be taken out by the amendment, how else will it be covered, and how will it flow through into the public domain?
Amendment 62D agreed.
62E: After Clause 138, insert the following new Clause—
“Condition relating to mental health
In section 8 of the Welfare Reform Act 2007 (limited capability for work), after subsection (4) there is inserted—
“(4A) Regulations made under subsection (1) shall provide that a person assessed as suitable for employment and support allowance by virtue of his mental condition but not currently receiving treatment from a mental health provider service shall be immediately referred to an appropriate mental health provider service and the prime provider shall then ensure that the person is already receiving or now receives suitable mental health employment support.
(4B) The Secretary of State shall issue guidance on what constitutes an appropriate mental health provider service and suitable mental health employment support for the purposes of subsection (4A).””
My Lords, at this late hour I will try to be brief. The noble Lord, Lord Layard, who put his name to the amendment, apologises for his absence; he is at Davos. I am aware that the noble Lord, Lord Freud, expressed sympathy with the sentiments of what I am about to say in support of the amendment. I appreciate that and hope that we can move forward.
I start with a shocking fact; more than 1 million people are on incapacity benefit by virtue of mental illness. The condition may not be curable but it is treatable. Noble Lords may be interested to know what proportion of these people are in treatment. The figure is 52 per cent. This comes from the official psychiatric morbidity survey. It is the number of people receiving any form of treatment. Of those, half receive medication only, without any form of counselling or talk therapy. This tells us everything that is wrong with our current situation. We pay people money because they are sick but we do not have a process to ensure that they get treated. There is not a lot in this Bill that we can do to change that—that is the way it is—but if somebody is drawing benefit because they are sick, they should surely either be in treatment for that sickness or immediately be offered treatment. Anything else is a shocking waste of taxpayers’ money, apart from anything else.
It is of course true that, in the course of the work capability assessment, the claimant is invited to bring a letter from their preferred health professional. This is a good thing, but it is not adequate for a number of obvious reasons. Above all, that clinician has not managed to make the person better. It is quite possible that even if the person is getting treatment, the treatment is not the right one, and here is the one chance to address that situation. I urge that in parallel with the work capability assessment that is available for people with mental health problems there be also a professional health assessment—a diagnosis. This amendment proposes that such people are put in contact with proven mental health providers that can provide this diagnosis, be it within the generic context of NHS-commissioned mental health services, such as the already available increasing access to psychological therapy services, or within the work programme, where prime providers have access to specialist mental health employment subcontractors, of which Turning Point is one. I should have declared my interest right at the beginning. Turning Point is a subcontractor, among many other not-for-profit organisations, in the work programme. I apologise to the House for not saying that straight away.
For these people, a key benefit of this approach would be that a person with mental health problems would be diagnosed and treated by the same professional. The diagnosis should be compulsory but, as with all healthcare, the treatment should reflect patient choice. I urge the Minister to go further and give this idea serious consideration and, I hope, produce an appropriate response. The statistics speak for themselves, but I will leave noble Lords with one that is quite worrying: mental health conditions are incredibly costly to the economy and are now the most common reason for claiming health-related benefits, with 86 per cent remaining on benefits for more than three months compared with 76 per cent of other claimants. Those figures come from the Department of Health and the Department for Work and Pensions report Working our Way to Better Mental Health: A Framework for Action. Recent estimates put the cost of mental ill health at £30 billion to £40 billion attributed to lost productivity and NHS costs. I beg to move.