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Baroness Blatch: My Lords, I believe that we can meet the intention of this amendment by making it clearer in the draft scheme that unpaid care can be compensated. The operation of the scheme has to rely, as far as practicable, on demonstrable, quantifiable costs rather than on wholly notional figures. But in this area we believe that the approach should be to take account of the time which the relative or friend is devoting to the care of the victim and make an assumption about how much that may represent in loss of earning capacity, even if the carer has not been in employment. We shall therefore amend the last sentence of paragraph 35 of the draft scheme to include reference both to the carer's loss of earnings and earning capacity.

Lord McIntosh of Haringey: My Lords, I wish I could have said it so well myself. I am grateful to the Minister, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 3:

Page 2, line 13, at end insert—
("( ) Where provision is made under section 2(2)(c) for an additional amount of compensation calculated with respect to special expenses, this provision shall include an amount for unpaid work normally carried out by the person to whom the award is being made but which (in the opinion of the person determining the award) it is now necessary for another person to be paid to carry out.").

The noble Lord said: My Lords, this amendment also relates to paragraph 35. We are pushing a little bit further each time. Amendment No. 3 is concerned with childcare and housework. Victims (or applicants, as they are referred to in the scheme) do a considerable amount of unpaid work such as childcare and housework in addition to that which is already recognised in the scheme, which is the maintenance of the house, garden, vehicles or whatever it may be. It is oddly sexist to recognise tasks that male victims may be prevented from doing—by reason of their disability but not those that female victims may be prevented from doing—not that I believe it right that women should do any more than their due share, or no more than half, of the housework in any house. However, there ought to be a recognition of childcare and housework. I hope that the Government will be as accommodating in this matter as in the previous one. I should have said that women should do no more than their share of childcare or housework.

Baroness Blatch: My Lords, this amendment would allow additional compensation to be paid to cover unpaid activities formerly undertaken by the victim. I believe I need to remind the House that, while we have taken forward with the new scheme the main elements of the common law damages scheme, we do not intend that the new scheme should comprehensively enable payment for absolutely anything available under common law in relation to special damages.

Victims incapacited for 28 weeks or more will receive generous compensation for the injury itself, for loss of earnings, for loss of earning capacity, for special

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expenses for the adaption of accommodation and for the cost of care. However, we believe that a line has to be drawn somewhere. We do not consider that the taxpayer should be asked to go further and pay what would be notionally calculated extra amounts in respect of home decoration, repairs, gardening or other unpaid activities. This is just one bridge too far in these amendments.

Lord McIntosh of Haringey: My Lords, if we had a fourth and fifth reading we might push a little further forward and make more progress, as we have done so far. I am disappointed, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [Appeals]:

Lord McIntosh of Haringey moved Amendment No. 4:

Page 4, line 43, at end insert ("but no such reduction shall be made unless the appeal has been referred by the adjudicator for an oral hearing").

The noble Lord said: My Lords, your Lordships may feel that this is a particularly abstruse point, for which I apologise. We turn now to paragraph 71 which is concerned with what happens in appeals that are determined without an oral hearing; in other words, on the basis of the papers alone. Paragraph 71 provides:

    "Where an appeal is not referred under paragraphs 69 or 70 for an oral hearing, the adjudicator's dismissal of the appeal will be final and the decision taken on the review will stand".

We are worried about the next part:

    "The adjudicator may, however, reduce the amount of compensation to be awarded by such amount as he considers appropriate, where he is of the opinion that the appeal was frivolous or vexatious".

We do not object to action being taken against frivolous or vexatious appeals, but surely an appeal cannot be considered to be frivolous or vexatious when it is only at the screening stage on the basis of papers alone. If somebody pursues it to an oral hearing, patently does not have a case and the matter can be described as frivolous or vexatious, it seems right that there should be penalties. But when it is dealt with purely on the basis of papers and is only at the screening stage, and when no other public money is expended on the costs of an appeal, surely the provision in the second sentence against frivolous or vexatious appeals and the associated power to reduce the award are not appropriate. I cannot believe that that is intended. I beg to move.

Lord Campbell of Alloway: My Lords, I would oppose the amendment. In this type of administration you have to have some safeguard against vexatious and frivolous appeals. There is a similar provision in so many other jurisdictions, indeed including the courts. I think that in this type of administration there is nothing wrong or inherently unfair about it.

4.30 p.m.

Baroness Blatch: My Lords, I am grateful to my noble friend for his intervention. However, I was about to accept that there is a case for saying that if an appeal

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is to be rejected on the ground of being vexatious or frivolous, it will be on the basis of an oral hearing. It is our intention to delete the second part of paragraph 71.

Lord McIntosh of Haringey: My Lords, again I am entirely satisfied with the Minister's answer. I am grateful to her for giving it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 [Parliamentary control]:

Baroness Blatch moved Amendment No. 5:

Page 8, line 24, at end insert—
("(3A) Before making any alteration to a provision of the Scheme which—
(a) gives a right of appeal, or
(b) specifies the circumstances in which an appeal is to be dealt with by a hearing,
the Secretary of State shall lay before Parliament a draft of the provision as proposed to be altered.").

The noble Baroness said: My Lords, it is, of course, a little unusual to bring forward government amendments at so late a stage in a Bill's proceedings. However, the amendments touch on an aspect of the scheme—namely, the appeals provisions—in which it is clear, from the several debates we have had on the subject at earlier stages of the Bill, that many of your Lordships take a particular interest. Indeed at Report stage I undertook to consider how we might be able to respond to an amendment tabled by the noble Lord, Lord McIntosh, and his colleague, the noble and learned Lord, Lord Archer. These amendments fulfil that undertaking and represent our considered response.

As your Lordships will recall, as a result of changes we made to the Bill in Committee, the complete scheme will now have to be approved by Parliament, by the affirmative resolution procedure, before it can come into force. Thereafter, if change is considered necessary or desirable, Parliament will have to approve such change. The more important, or "key" features of the scheme will require parliamentary approval by the affirmative resolution procedure, while all other features will require approval by the negative resolution procedure. The Executive will no longer have the power to change any aspect of the scheme, however minor, without securing the appropriate parliamentary approval in this way.

It is of course a matter of judgment as to which features of the scheme should require approval by the affirmative resolution procedure and which by the negative. In our view, Parliament ought not to be overburdened with more minor points of detail. We accordingly made a judgment as to what might reasonably be regarded as the "key" features of the scheme, and those are set out in Clause 11(3). In the main they relate to the tariff itself and to matters bearing on quantum.

However, it became clear in debate that a number of your Lordships take the view that provisions relating to appeals are also of sufficient importance to merit inclusion in that part of the Bill which would require subsequent change to be made by the affirmative resolution procedure.

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The first amendment makes it clear that before any changes can be made to a provision of the scheme which gives a right of appeal or which specifies the circumstances in which an appeal is to be dealt with by an oral hearing, parliamentary approval by the affirmative resolution procedure will now be necessary. The second amendment is a minor consequential. That effectively means that any provision of the scheme touching on eligibility for appeal or the circumstances in which an oral hearing can be granted et cetera are caught.

I hope the House will agree that this is a sensible and pragmatic solution which achieves the right balance, and affords the appropriate level of parliamentary scrutiny. I beg to move.

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