Select Committee on Social Security Minutes of Evidence

Examination of witnesses (Questions 47-59)




  47. Ladies and gentlemen, can I reconvene proceedings and welcome Professor Gwynn Davis from the University of Bristol and Professor Nick Wikeley from the University of Southampton. We are very grateful to you, gentlemen, for coming to assist our deliberations. You have made a significant contribution to the whole debate in the written work you have done but, particularly, in the publication Child Support in Action which was published in 1998 and has had quite an impact, I think, on some of the public consideration of the issues that we are considering. One of the things that I am particularly interested in, personally, in some of your own work, is the consideration that you give to the role of courts. I should, perhaps, confess that my own party political proposition, at the moment, in terms of trying to reform the CSA, is still to contemplate taking the whole process back into a court situation. You have not, I do not think, taken a view explicitly on whether that would be a feasible or a good or a bad thing, but you certainly have done some work looking at the role of the advocacy involved in the solicitors who are advising clients and some of the positive aspects of that which, perhaps, have been ignored in some of the other discussions that have been made available to us. I wonder if you would not mind spending a moment or two expanding on that slightly for us, please?
  (Professor Davis) Sometimes I think the strengths and weaknesses of the court system are misrepresented. Essentially, it is a negotiation system, it is lawyer led and it delivers individually negotiated, packaged outcomes. In that sense, it is a bit of a Rolls Royce system, and it can take time, it can be expensive in lawyers' fees, but its strength is that it delivers, usually, in 95 per cent of cases approximately, an eventually agreed outcome which is, first and foremost, designed to cater for the children's interests. The limitations are, firstly, the expense that it can pose to the taxpayer in terms of the Legal Aid costs, if the parties are eligible, and, secondly, and fundamentally as far as this whole debate is concerned, in terms of the fact that there is no obligation upon courts and legal advisers to take into account the interests of the taxpayer in calculating all the elements of this package.

  48. Would that be an unprecedented thing to do? Would you consider it to be feasible to impose on courts a duty to take that factor that you have just expressed into account?
  (Professor Davis) You would have to tell them how to do it—how to weigh it against all other considerations—because it is clearly at odds with the straightforward principle of putting the children's interests first. The way that the former system worked was that you had the liable relative section of DSS which, as it were, came trailing along behind and attempted, in a very, as it became, half-hearted way to protect the interests of the Exchequer because the lawyers had gone before, negotiating settlements that were, as we described them, benefit efficient. In other words, they maximised the call upon state resources and then, even with the low level of maintenance that was required, there was no real effort put into collecting it. So there are those two difficulties with the policy. I do not think we reject the policy out of hand but if that were mooted there is this difficulty about calculating the level of child maintenance. You could see the whole of the CSA now as an effort to have a real liable relative commitment instead of the moribund liable relative commitment that existed prior to the Agency.

  49. I do not recall reading in your work that you have done any of the serious costings that that would involve if you really decided to go for it wholesale as an alternative to the current White Paper proposals.
  (Professor Davis) The system is already up and running and I have to tell you that many lawyers and judges involved in running the court system believe that they delivered effective justice of a kind under that regime and could continue to do so. They think that they could still do it, but there would not be this commitment to secure money from absent fathers. There would not be this political will to make them make a significant contribution.

  50. You also are quite severe on the "catastrophic administrative failure leading to abandonment of many of the basic tenets of administrative justice". That is one phrase that sprung to the eye as a result of your analysis of the current system. You can justify that in terms of the experience of the research that you have done? It is as bad as that—"catastrophic administrative failure leading to abandonment of many of the basic tenets of administrative justice"?
  (Professor Wikeley) I thought actually our comments were rather under-stated. Given the experience of many of the members of this Committee in their constituency surgeries, they may well agree with that. The evidence we found entirely supported that. The way in which the system was changed at irregular and regular intervals and, as I say, those basic tenets being abandoned such that in the end cases simply were not being looked at providing there was no contact from a member of the public. No contact from a member of the public, no progress. The whole point of the CSA of course was to supersede these lazy and dilatory courts we have heard about that simply let cases wander on and what happened of course is that cases ended up wandering on under the CSA as well.
  (Professor Davis) If you think of the Inland Revenue and you imagine it as a system which is responsive only to taxpayers who contact it then you have some sense of the level of failure that we are talking about.

  51. I will hand over to other colleagues after this question. Against the background of the work of academics and research work what are your key findings about the recommendations in the White Paper proposals? What are the two or three things that really concern you most?
  (Professor Davis) I think we would say that this White Paper does take on board pretty well all the lessons of our work and that of other researchers in the field. What you have to acknowledge at the same time is that it is an absolutely formidably difficult task. I think the areas where in our view they have clearly got it right now is the far greater simplicity of the formula and in the incentives. Those are pretty fundamental changes and we broadly endorse them even if one might argue about the precise terms of the formula that they have arrived at. The anxieties probably lie still in terms of effective administration of the system, which means monitoring and ensuring compliance and not relying entirely on one or other parent to complain to the Agency. Can there be a system of effective oversight? Effective oversight is more plausible under this regime than it was under the former one but it is still going to be terribly hard to deliver.

  52. You also say you are worried about the element of discretion proposed for CSA officers under the scheme. Would you like to say a word about that?
  (Professor Wikeley) It is unclear to us precisely what is meant by this system of exceptional cases mentioned in the White Paper. It seems to be a rehashed version of the current departure system which was always complex from the start and simply got more complex. I think our concern would be that once you set up a system like that there is bound to be pressure for yet more exceptional cases and so the whole things grows like topsy as more and more changes are made incrementally and then we get away from the transparency and clarity which the Minister was arguing for in the previous session. If I can just pick up on the point that Gwynn was making earlier in terms of the administrative overload. I was very interested in the previous session to hear that the 90 per cent/10 per cent was going to be, if not reversed, substantially shifted in the other direction. Given the burden of reviews and changes of circumstances, that is one hell of an ambition to achieve and I think perhaps the most worrying part of the whole session before ours for my purposes was Faith Boardman's points on that in terms of the three difficulties that she was facing as Chief Executive of the CSA.

Dr Naysmith

  53. I was interested in some of the things you said there. Do you think that the existing system, the existing formula could have been made to work if the administrative back-up had been really excellent and perfect? Was it something to do with the lack of administrative justice we were talking about? As the Minister said when she was explaining how it was arrived at, the formula was made more and more complicated to compensate and get rid of unfairness. Obviously it was done much too quickly. If that could have been sorted out and the administration had been of the highest possible quality would it have worked? Would it have been a fair system?
  (Professor Davis) A fair system? That is a different question. One of the reasons that things have worked very badly is the level of resistance to payment and that arises in part because of perceived unfairness in the formula. It would also have required a sea change in the way that the Agency operated and this sea change has begun (although we are no longer intimately connected in monitoring the Agency) in its commitment to allow direct access and direct review of individual cases. That failure was so comprehensive that our conclusion is that it would have required massive additional resources for the Agency to be on top of its case load. If it had been more generously resourced, that is a hypothetical question, but it might have worked a good deal better.

  54. It brings me back to what you were saying in response to the Chair's question about the lack of justice about the whole system. Presumably you were talking about that as it applies to the two parents? How just would it have been to the children if it had worked properly?
  (Professor Davis) As far as benefit claimants were concerned there was no intention of increasing the cake, the available money for those families. Now there is that intention and we cannot predict how that will play, but we agree that that is a fundamental conceptual shift and it will be fascinating to see what that does in terms of incentives and compliance.

  55. I do not want to put words in your mouth but you approve of that?
  (Professor Davis) Yes, I think so.

Mr Swayne

  56. In your study Child Support in Action you draw attention to the fact that the existing model relies on a perception that there is a fairly static population in terms of relationships and employment whereas the reality is that "separated parents have frequent changes in and out of employment, self-employment, in and out of relationships with accompanying changes in accommodation and the taking on or abandoning of responsibility for children or stepchildren." Do you believe that the reform should pursue administrative efficiency in attempting to accommodate those trends and therefore being able to deliver assessment and reassessment to meet that requirement, or should it concentrate on some normative aspect of policy to provide disincentives for those trends? What would be the prospect of such a policy succeeding? My particular concern is with respect to the White Paper's treatment of second families which I believe undermines any such normative approach that may or may not have been an objective.
  (Professor Davis) I do not know if Nick wants to say something on this as well. I am not sure that any of us here could claim to be confident about the relationship between social policy, benefits and taxation policy, and individual behaviour in the formation of intimate relationships, the propagation of children, the abandonment of partners, and so on. It is implausible to suppose that those things are at the top of people's minds when those decisions and behaviours happen. Equally I guess there is a concern that the child maintenance premium could be seen as encouraging a lifestyle of single parenthood, but that is a political judgment. I do not think we would be drawn to that conclusion, but I think it is almost an emotional judgement rather than a matter of social science knowledge as to whether behaviour is affected by those kinds of consideration.
  (Professor Wikeley) I would echo entirely what Gwynn is saying. This is going to sound a bit like a politician's response but I think you do need a balance between considering normative issues but also making sure that it is administratively practical. Of the four key reforms that the Baroness outlined this afternoon it seems to me the third she mentioned of the tough new measures of enforcement, in particular the criminal offence of lying to the Agency, is pure rhetoric. I cannot believe that the CSA is going to be dashing around trying to find people who have committed this offence and bringing them before the court. The object of the exercise is getting maintenance in payment and I do not believe the existence of that criminal provision on the statute book will make any difference to that process whatsoever.
  (Professor Davis) We are very, very sceptical about that and we think the political costs of acting upon it would be so great that it is probably eye wash.

Mr Leigh

  57. In paragraph 20 of the paper you submitted to us you said:[3] "The child support scheme needs to be greatly simplified. It is inevitable that a formula-based system will deliver rough justice, but in order to be effective, it needs to be rougher yet. This applies not only to the initial assessment, but to every stage of the Agency's operations." This leads you to support what the Government is doing in broad terms. I want to put it to you that I am not sure you are right. Is there not going to be the most appalling row when people find that irrespective of their lifestyle they are paying up to a quarter of their salary for the next 18 years? Surely we should be moving to a system which is more individually based so that, for instance, if a father takes particular care to look after absent children, has them to stay with him, helps them with their uniform and everything else he should be given some credit for it. In fact we are moving now in the opposite direction because apparently the Child Support Agency is incapable of exercising any more flexible system. Are you not worried about this?
  (Professor Davis) We are not worried. We try and be realistic about what is achievable. We now believe that it is accepted that there is effectively going to be a two-tier system in operation in this country, one tier which is effectively private and negotiated, and the kids who get uniforms probably are largely within that sector, and it would be prudent no doubt for those negotiations to shadow Agency child maintenance requirements to a degree, just in case the private arrangement breaks down and the Agency is called upon, but then there will be this other sector of benefit claimants and a simple system of child maintenance payable in respect of those cases. The relationship with the benefit structure has to be managed, has to be simple.

  58. The basic problem with the CSA is that ten years after it was founded two-thirds of absent parents are still not paying. That is the basic problem.
  (Professor Davis) It is a pretty fundamental problem.

  59. A pretty fundamental problem. What you are saying is there is going to be one system for those people who can negotiate privately, which will be some sort of system which has an element of justice about it, and there will be another brutal system which is designed with complete simplicity to attack these two-thirds of absent parents who do not pay?
  (Professor Davis) Yes, and not too brutally unjust.

3   See Ev p 12. Back

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