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Lord Mackay of Ardbrecknish moved Amendment No. 22:
On Question, amendment agreed to.
Baroness Hollis of Heigham moved Amendment No. 23:
The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 25, with which it is grouped. These are probing amendments at this stage. Our difficulty is that the headings or descriptions in Schedule 2 are very abbreviated. I hope that the Government will be the first to accept that they perhaps need to improve on the wording so that we can make the law more clearly reflect the Government's and our intentions. Therefore, we are suggesting, for example, with Amendment No. 23, that where it says under "Head of compensation" and,
Similarly, as regards Amendment No. 25, where we are talking about mobility, we need such additional phrases as we suggest there; namely,
Lord Mackay of Ardbrecknish: In Schedule 2 and the two columns "Head of compensation" and "Benefit", these two systems are not a mirror image of one another. Compensation is paid to recompense for losses sustained, whereas social security benefits are paid to meet need.
What the parliamentary draftsman has sought to do in Schedule 2 is to set out the points at which both systems intersect and where as a result it is reasonable for the compensator to make a reduction in the settlement or award that would otherwise be payable.
I understand the sentiment behind the attempt that has been made to clarify the terms of Schedule 2 to the Bill. However, I believe that there is a danger in seeking to define more precisely the elements of compensation that are reducible on account of recoverable benefits. If the attempted clarification did not capture all the circumstances in which a reduction could take place, there would be a consequent risk that any omission on the part of the Government would be taken by practitioners to be a deliberate one. It seems better to provide a series of generic descriptions of reducible heads of compensation, which could, if necessary, be amended later in the light of practical experience.
Against this background, as noble Lords will have observed, Clause 23 gives the power to amend Schedule 2 by secondary legislation, with regulations subject to the affirmative procedure. If it emerged that the interests of the negotiating parties were not fully recognised by the current wording of Schedule 2 it would be a relatively simple matter to amend it at a later date. The noble Baroness suggested that I might think about amendments to be tabled between now and later stages of the Bill. All noble Lords look for ways to improve legislation as it passes through the House. That we shall do. It is not intended that it should not be possible at a later stage to reform these matters in Schedule 2 other than by primary legislation if it is found that the system does not work as we all hope it will. In those circumstances, we shall be able to deal with the problem by way of an affirmative order.
I understand what the noble Baroness has said. However, we must be careful not to tie down the definitions of the heads of compensation to such an extent that we begin to create problems for those who have to deal with these matters from the point of view of the victim or the compensator. I prefer to leave the words as set out in the Bill, that is,
Baroness Hollis of Heigham: I understand the wish of the Minister for generic terms and flexibility. However, given that so many of the court cases will hinge on such definitions, if the Minister is not willing to see these matters defined on the face of the Bill the courts will certainly do the job for him. The courts may determine an intention which is not of the Minister's mind. However,
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish moved Amendment No. 24:
The noble Lord said: I have already spoken to Amendment No. 24. I beg to move.
On Question, amendment agreed to.
Lord Mackay of Ardbrecknish moved Amendment No. 26:
The noble Lord said: I beg to move Amendment No. 26. The amendment corrects the wording of the note which follows the table in Schedule 2 to allow for the fact that benefits may be paid either by an instrument for payment--an order book or girocheque--or an instrument of payment, that is, a benefit payment card. Although the benefit payment card will eventually take the place of most instruments for payment, both methods will exist in parallel for some time to come and so must be provided for in the Bill. I commend the amendment to your Lordships.
On Question, amendment agreed to.
Lord Mackay of Ardbrecknish moved Amendment No. 27:
The noble Lord said: I have already spoken to Amendment No. 27. I beg to move.
On Question, amendment agreed to.
Schedule 2, as amended, agreed to.
Clause 10 [Review of certificates of recoverable benefits]:
Lord McCarthy moved Amendment No. 28:
The noble Lord said: Clause 10 is all about the review of certificates of recoverable benefits where mistakes have been made. Subsection (3) provides:
The issue is what is incorrect or insufficient information, who is responsible and who should pay the difference. We suggest that the following addition should be made to the clause:
That appears to us to be only fair. It could be that when the settlement was made the victim was told that he had, say, £20,000 left. He might subsequently find that instead of having £20,000 left he had £10,000 more to pay. That might occur some time after he thought that he had £20,000 left. That is an obvious shock. It could be a disaster. It could happen long after the victim had spent all of the money. If it can be shown that it derives from a mistake for which the victim is culpable that is only fair. If he or she gives the wrong information to the compensator, who is the person who must apply for the certificate under Clause 4, that is fair enough. The clause as it stands provides, quite fairly, that if it is the fault of the Secretary of State the victim is not to blame.
However, as I understand it, the normal procedure is that the compensator will ask the claimant for details. He will ask the victim to tell him the date of the accident, the nature of the injury, the DSS number and so forth. It is not clear on the face of the Bill exactly what information must be provided. Presumably, the Minister will tell us that all of that will be in the regulations. We suggest that if the correct information was provided in sufficient detail to enable a proper calculation to be made but nevertheless a mistake was made somewhere and as a result further money had to be given that would be unfair.
This evening noble Lords have been asked not to speak about theories but to talk about the real world. Therefore, when we were approached about tabling an amendment of this kind we asked for a concrete example. Those who feel that this amendment is only natural justice were asked to give a concrete example. They suggested the following. Suppose that a claimant tells the compensator that he has an injury to back and foot and the compensator gets it wrong and simply puts down "foot". Once the foot heals, the victim continues to receive benefit in relation to the back, but the DSS issues a certificate of recovery in relation only to the foot. As a result, the certificate is based upon a mistake that has been made by the compensator. The victim believes that what he gets is his to keep. After he has spent a large part of it or some of it--probably to get out of debt--he discovers that there is more to come.
Page 18, line 14, column 2, at end insert--
("Unemployability supplement")
Page 18, line 17, column 1, after ("care") insert ("by way of personal assistance").
"compensation for cost of care",
that that should be,
"by way of personal assistance",
because we know that that is a much more specific definition.
"through the provision of an adapted motor vehicle or for additional travelling expenses for social purposes".
We are not suggesting that the wording of these amendments cannot be changed, but we are saying that Schedule 2 is going to be vitally important. It is too abbreviated and it is not helpful. It needs clarification. We hope that the Minister will say that they are going to consult about this matter and come back with more comprehensive definitions. I beg to move.
"Compensation for cost of care incurred during the relevant period",
and not qualify them by referring to "by way of personal assistance", or to qualify mobility in the way that the noble Baroness suggests. I believe that it is better left in the more general terms in which it is expressed here under the heads of compensation.
Page 18, line 18, column 2, at end insert--
("Disablement pension increase payable under section 104 or 105 of the 1992 Act")
Page 18, line 26, at end insert ("or paid concurrently with each of those benefits by means of an instrument for benefit payment").
Page 18, line 33, at end insert--
("3. In this Schedule "the 1992 Act" means the Social Security Contributions and Benefits Act 1992.").
Page 6, line 10, at end insert--
("( ) Nothing in subsection (3) shall permit any additional amount of benefit to be recovered from the person to whom the compensation payment is made if that person provided to the Secretary of State or to the person making the compensation payment information which was--
(a) correct; and
(b) sufficient to allow the correct calculation of his entitlement to a recoverable benefit.").
"The Secretary of State may not vary the certificate so as to increase the total amount of the recoverable benefits unless it appears to him that the variation is required as a result of the person who applied for the certificate supplying him with incorrect or insufficient information".
"Nothing in subsection (3) shall permit any additional amount of benefit to be recovered from the person to whom the compensation payment is made"--
the victim--
"if that person provided to the Secretary of State or to the person making the compensation payment information which was ... correct; and ... sufficient to allow the correct calculation of his entitlement to a recoverable benefit".
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