State Pension Credit Bill [Lords]

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Maria Eagle: I am happy to answer such points one after the other, not at the same time; otherwise I shall be speaking gobbledegook to the Committee. I shall do my best to go through them.

We are applying the habitual residence test. It has been in existence for some years and was introduced for understandable reasons by the Conservative Government as a curb on the possible abuse of the benefit system by benefit tourists or by people with little or no recent connection with this country. In large part, that test applies to all income maintenance benefits. Different tests apply to other parts of the state support system, whether they be taxation or tax credits, but the habitual residence test applies in respect of benefit.

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We are not proposing to change that system under the Bill. We want to retain the same test for pension credit that exists for other income maintenance benefits. That is not to say that the habitual residence test that we inherited was perfect. Indeed, we thought that it was deficient in several aspects and in the previous Parliament we made significant changes to improve it. If it would assist the Committee, I can elaborate on that although the hon. Gentleman did not refer specifically to the habitual residence test. We are not suggesting a different test for the benefit from that for other benefits so, in that sense, we are building on the current system.

As a lawyer in a former life, I am probably as aware as other lawyers in the Room—I have not checked my ''Dod's Parliamentary Companion'' to see if there are any, but they lurk in the most surprising of places—that it is dangerous to change the wording of eligibility criteria. That would be like a red rag to a bull not only to those lawyers who may be looking to take test cases, but to judges who may hear them. Rightly, if Parliament in its wisdom uses different words for eligibility and calls it something other than ''habitual residence'', the courts would assume that there was a difference and would want to know what it was. We are not seeking to change the current eligibility for the minimum income guarantee, which is built on income support, as the hon. Gentleman knows. We are reproducing the test, and are not trying to make any significant changes.

Mr. Boswell: The Minister is helping us by trying to elucidate the Government's thinking. I am not a lawyer, but my daughter is a judicial review specialist so I understand the constraints within which the Minister properly operates. Although the concept should stay unchanged for the reason that she gives, it is not necessary—even within the same theoretical framework—to prescribe exactly the same qualifying periods. If it were right to do so for the equity of the case, one could take a different approach with the new benefit. It could have the same wording and concepts but perhaps operate slightly differently.

Maria Eagle: I can understand the hon. Gentleman's point. As a former Minister, he will be aware that when legislation is brought forward, Ministers are always tempted to suggest tweakings and differences. Such little changes might be helpful in a particular piece of legislation but on reflection they often turn out to be unnecessary complications that give more work to lawyers. With such a distinguished daughter in the family, the hon. Gentleman is as good as a lawyer himself. I am sure that he has fireside chats that enable him to understand much more about the law than those with no lawyers in the family, so he will be aware of the difficulties to which I am alluding. It is not our intention to make any significant changes to the minimum income guarantee.

The hon. Gentleman made it clear when speaking to his probing amendment that he would not want to suggest that an awayday to Calais should force one to claim again for pension credit. Of course that is sensible of him. It is perfectly reasonable that pension credit should remain in payment for limited periods

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when a pensioner goes abroad. No one is trying to suggest that pensioners do not deserve holidays, even quite long ones. Good luck to them if they can get abroad. We would not want to make them reapply for pension credit.

Mr. McCartney: They could go to Scotland.

Maria Eagle: Yes, and I am sure that many of them do. However, some of them wish to go to warmer climes, and I understand that Scotland is not always warm.Kevin Brennan: There is Wales.

Maria Eagle: Wales, as I am reminded by my hon. Friend, is a very sunny place. Certainly, the sun always shines when I go there.

Mr. McCartney: Perhaps the Minister's house is on fire.

Maria Eagle: That is a very old joke.

We have to strike a sensible balance, and allow some flexibility while being mindful of the fact that we are still operating a habitual residence test. We do not want abuses to creep back in. At present, a ''temporary absence'' is four to eight weeks. I think that four weeks takes care of the idea of holidays. Very few of us manage to have holidays that last for longer than four weeks, although we may aspire to them. Perhaps some of us were thinking about long holidays this morning. However, in the main, we do not expect to have holidays of more than four weeks.

A rather strange exception to that arises in the case of the families accompanying children who are receiving treatment abroad. I gather that it arose from the case of the Peto institute. Autistic children needed to stay at that institute for somewhat longer and ran into benefit problems. An exception was made in the income support rules by the then Government. That remains the only exception to the four-week rule. Although the Bill is ambitious, it is not intended to recast the entire entitlement conditions for income-related benefits. If it were intended to do that, it would have more than 22 clauses.

I wish to say to the hon. Member for Daventry, who moved the amendments, that we are trying to keep things pretty much as they are with regard to general social security entitlement, to fit this benefit in with the other income and maintenance benefits that it sits with, and to try to ensure that there are no anomalies between them.

Mr. Boswell: Will the hon. Lady deal with the specific issue of whether there are any EU implications, and whether she is satisfied—after taking advice, no doubt—that there is no obligation to repay for people who might have gone to another EU country for a period of, say, six weeks, and would, therefore, appear to be losing their pension credit entitlement, unless and until they returned to the UK and reclaimed?

Maria Eagle: I will address that point. I got carried away in flurries of compliments and I apologise for that, but the hon. Gentleman also asked me whether the regulations that we are contemplating would be neutral between all countries. It is my understanding that the only respect in which requirements are not neutral is in the application of the habitual residence

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test, which operates slightly differently for EU countries than for other countries; workers exercising community rights—for example, if they return to the UK to seek work—are not subject to the habitual residence test in the same way as are others. Therefore, there is some difference.

The hon. Member for Canterbury raised a tragic case—although, as he said, such situations are mercifully rare. However, such unusual cases often serve to highlight the effect of rules when they are applied at the far end of their range.

Once again, that case involves the habitual residence test. It is, of course, very difficult to design a general rule that applies to all income-related benefits and that takes account of such cases, especially given the length of time that the hon. Gentleman's constituents remained away. I gather from what he said that the daughter was an adult, rather than a child—although he did not make that clear.

Mr. Brazier: Yes, that is right.

Maria Eagle: All I can say is that habitual residence is, to some extent, a moveable feast. It is a creature of case law. It is not set out, or strictly defined in legislation, and nor is it defined in regulations. However, general principles are set out in regulations, which have been defined over the years in case law. Because of that, there is a certain amount of flexibility with regard to the application of the test. For example, the length and purpose of the absence from the country would be one of the considerations that a decision maker would take into account. I cannot comment on individual cases, but I hope that that flexibility would be applied to situations such as that which the hon. Member for Canterbury raised—although, with regard to that situation, three and a half years is a long while.

Kevin Brennan: I am relieved that the Under-Secretary has made that last comment. I have come across a case that might be more common than that which was raised by the hon. Member for Canterbury. It involved a pensioner who travelled to a foreign country and fell ill. They were diagnosed with a serious illness—cancer of the oesophagus—and they had to be treated in the foreign country. They could not be moved for a long time and, consequently, when they re-entered the country they faced problems with regard to the habitual residence test. I hope that the flexibility that the Under-Secretary described would be sufficient to be able to deal with those sorts of circumstances, which are beyond the control of the individual.

Maria Eagle: Indeed, and I would hope so too. That would, of course, be a matter for decision makers in the Department, and subject to all the usual legal appeals. However, it would be impossible to come up with a set of rules, either in primary legislation or in regulations, which could cover all such eventualities, and one hopes that, by having more general guidance, the vast majority of such problems could be taken into account, although it is difficult to envisage how flexibility could be maintained for that length of time.

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