| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Earl Russell: I think the Minister is rather unwise to assume that this may be necessary in only a very few cases. It is always unwise to legislate on the assumption that there is no such thing as human error, because if that were, by any remarkable chance, to be true, a great deal of the legislative process would become entirely redundant. Therefore, that is an extremely unwise assumption.
I take the point which the Minister makes that the amendment might not remove the uncertainty and might move it in some cases to another place. But the point that remains of substance in the amendment is the hope that, in the end, the uncertainty should come to an end. It will not do so unless both a certificate of recoverable benefits and the amount of damages are completed.
The Minister has not taken on board the fact that with recoupment, especially recoupment under some heads and not others, there will be an inter-relationship between the amount of recoupment and the amount of damages awarded. Litigants on both sides being human, I cannot see how that can be otherwise. Therefore, we really need to achieve an agreed certificate of recoverable benefits before the case can be properly settled. I cannot see how the Minister can answer that point.
6.45 p.m.
Lord McCarthy: Nor can I. There are many questions arising from what the Minister said. I am not sure why the Minister thinks that the victim would wish to delay the final settlement. If you are a victim, you want a settlement. I can understand why the insurers may wish to delay the settlement but I cannot understand why a victim should wish to do so. The quickest way to have the issue disposed of is, if there is any debate about the recovery, to go to an appeal and have that settled. It would be much more likely that there would be a quick settlement and a settlement out of court. That is my first question. I do not understand why the Minister says that the victim would wish to delay settlement and we must not do anything to encourage that.
Secondly, I am not sure that I follow what the Minister seems to regard as an infinite redress. In my situation, there is no settlement. There may be negotiations but there is no settlement. The victim goes to appeal and the appeal either goes in favour of him or against him. The Minister seemed to be saying that, if as a result of the appeal the victim were dissatisfied with the result of the appeal and subsequently settled, he would in some way have a right to another appeal.
I should not have thought that there would be much chance of that. I should have thought that he would have one opportunity to put forward his argument that there had been a miscalculation or wrong information and that the department would make a decision accordingly. I do not understand why the Minister does not accept the amendment.
Lord Mackay of Ardbrecknish: I am not sure if I am being invited to try again but I shall certainly do that. One point that I make is that, as the period of recoverable benefit ends with the payment of compensation, there cannot be an agreement on the recoverable benefit before that point is reached.
The provisions of the Bill are there to prevent an appeal being made before a compensation payment has been paid and the liability to repay benefit discharged. It mirrors the current provisions. I am reminded that I should think about future as well as current provision. The rule was drawn up deliberately in order not to delay the negotiating process while an appeal was being determined and to prevent the possibility of a series of appeals being made. Unless five years have elapsed between the date of the accident or injury and the date from which the victim first claimed a relevant benefit in case of disease, benefits paid up to the date of the settlement or award are recoverable. Thus it is possible, without provision to prevent an appeal being made before the end of that period, to appeal against the certificate and have it amended on appeal only for the Secretary of State to be compelled to review it again when the details of the settlement are known and for an appeal to be brought against that reviewed certificate. We believe that that would be costly in administrative terms and could delay the negotiating process to the detriment of the victim.
I accept fully that this is a difficult area. It does not cover many cases. I am told that no more than 100 cases a year reach this situation. However, I understand what the noble Lord, Lord McCarthy, is saying. Because we are going to a new system, we should not look back too often at the previous system. However, in this case we can do so because the new system does not materially alter the particular issue which we are discussing. We should keep what we have and incorporate it in this new Bill rather than move to a new system which would have the disadvantages which I have outlined. I accept fully that it may have some of the advantages which the noble Lord has outlined but, as is so often the case, one must make a decision and on balance I still prefer the Bill as it stands rather than the noble Lord's amendment.
Earl Russell: I understand the Minister's fear of delays but it is my hope, as I am sure it is his, that this Bill will reduce considerably the incentive to delay. We are not concerned with legislating for tomorrow only; we are concerned with legislating for the day after tomorrow. When the Civil Procedure Bill is complete and the new system being introduced under the auspices of the noble and learned Lord, Lord Woolf, is in place, I hope that there will be still further incentive to expedition. Therefore, many of the arguments which the Minister uses will be very much out of date.
It is important that the fit should be right for the world of the day after tomorrow. Before we are through with this Bill, will the Minister consult on some of these disputed points not only with his noble and learned clansman on the Woolsack but also with the noble and learned Lord, Lord Woolf, himself because it is important that these matters fit together and where better to go for that than the horse's mouth, if I may so describe the noble and learned Lord, Lord Woolf?
Lord Mackay of Ardbrecknish: I always reflect on what has been said in Committee and I shall certainly reflect on whether I should consult my noble and learned clansman about these matters.
Lord McCarthy: I thank the noble Lord for that. I shall read very carefully what he said. I believe that he accepts that there is an injustice here. I believe that he accepts that there is something wrong with the face of the Bill. He does not like the way in which we suggest it should be changed and points to certain real and practical difficulties. It is up to us to take away the amendment and think about that. But I feel that there is room in which to make the point, because it is unjust that the victim should be forced, induced or persuaded to make a decision before he is in full possession of all the facts. We want to find some way of enabling the victim to be in full possession of the facts without fouling up the system and without promoting more litigation while facilitating settlements out of court in an equitable way. I shall go away and think about it. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mackay of Ardbrecknish moved Amendment No. 30:
The noble Lord said: This is a technical amendment to allow regulations to be made as to the procedure to be followed when a person lodges an appeal against a certificate of recoverable benefit under the provisions of this clause. The amendment is necessary because, by re-enacting the current provisions relating to benefit recovery in their entirety--including appeal rights--it follows that provisions contained in the Social Security Administration Act no longer apply to the Bill. Regulations made under this provision will, for example, require the appellant or other person affected by the appeal to submit evidence required in connection with that appeal. I commend the amendment to the Committee. I beg to move.
On Question, amendment agreed to.
Lord McCarthy moved Amendment No.31:
The noble Lord said: I shall not detain Members of the Committee too long with this amendment. We return to our old friend, consultation. I know that we shall not be able to persuade the Minister to agree to what we say. He has already told us that the Government will not put this provision on the face of the Bill because they do it anyway. He has also told us that they will not put it on the face of the Bill because they may not want to do it; and, indeed, he has told us that the Government will not put it on the face of the Bill because the SSAC often does it. In any case, the noble Lord does not like lists. Therefore, we do not have much chance of getting through to the Minister on the matter. However, I merely point out that, although I am moving Amendment No. 31 and speaking also to Amendments Nos. 34 and 41, I shall deal separately with Amendments Nos. 42 and 46 because they raise rather different, wider issues. I beg to move.
Page 6, line 36, after ("made,") insert--
("( ) as to the procedure to be followed where such an appeal is made,").
Page 6, line 41, at end insert--
("( ) Before making regulations under subsection (5)(b), the Secretary of State shall consult interested persons, including persons who appear to him to be representative of employers, employees, disabled people, consumers, the insurance industry, lawyers and other persons providing advice services.").
Next Section
Back to Table of Contents
Lords Hansard Home Page