Examination of witnesses (Questions 47-59)
TUESDAY 14 SEPTEMBER 1999
PROFESSOR GWYNN
DAVIS and PROFESSOR
NICK WIKELEY
Chairman
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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