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Earl Russell: Perhaps the Minister will also tell us who decides what is in the interests of the victim.
7.15 p.m.
Lord Mackay of Ardbrecknish: As I mentioned in introducing the amendment, the Bill re-enacts Part IV of the Social Security Administration Act in its entirety. Members of the Committee will remember that I said that that was a decision that the draftsman advised us to take. Rather than having a Bill which amended another Bill, we would have one Bill which encompassed not only what we were amending but also those parts which we were not amending. That means that procedures to be followed on appeal will have to be included in the Bill although they make no changes to the existing situation.
The amendment allows us to make provision for a number of procedural aspects: the precise format in which an appeal can be referred to a tribunal; the time limits for referring appeals; the ability of a tribunal chairman to strike out an appeal where the appellant has failed to attend a hearing without good cause; the time allowed for submitting evidence; the tribunal hearings to proceed with the agreement of the appellant in the absence of one of its members; majority decisions to be made by the tribunal; the tribunal chairman to give directions for the disposal of an appeal where he is satisfied that the tribunal does not have jurisdiction to hear it; and the ability to withhold medical information from a person where that information shows that the person is suffering from an illness which he does not know is terminal.
I believe that it is the last point which concerns Members of the Committee. The provision exists already; it is used very rarely indeed. It would be used only where the tribunal was aware of the fact that the victim did not know that his illness was terminal. I do not believe that any noble Lords would consider that it would be up to a tribunal to give such information to a person.
These are fairly sensitive areas. It would be quite wrong for a tribunal to be forced to give information which a person's doctor or family had decided, for whatever reason, they would prefer that he did not have.
I hope that that explanation will satisfy Members of the Committee. The provision is very rarely used but it is a humane provision that should be in the Bill.
On Question, amendment agreed to.
Clause 12, as amended, agreed to.
Clause 14 [Reviews and appeals: supplementary]:
Lord Mackay of Ardbrecknish moved Amendment No. 35:
The noble Lord said: Clause 15 imposes a duty on courts, when making an order for compensation, to specify in that order what amount, if any, of such compensation is in respect of loss of earnings, cost of care or loss of mobility as we have already discussed. These are the categories of compensation set out under Schedule 2, which may be reduced following repayment of recoverable benefit.
Where a court is asked to make a consent order--an order whose terms have been agreed by the parties--it would not be appropriate for the courts to be required to break down the settlement in this way, since the terms themselves would not have been determined by the court.
Amendment No. 35 exempts consent orders from the requirement otherwise placed on courts to specify compensation payable under the categories of compensation listed in Schedule 2.
The provision relates to a small number of cases where, for whatever reason--a minor may be involved--an agreement has been made, but the parties have to go to court. In those cases, they do not have to break down the settlement in the way that they would for normal cases going to court.
On Question, amendment agreed to.
Clause 15, as amended, agreed to.
Clause 16 [Payments into court]:
Earl Russell moved Amendment No. 36:
The noble Earl said: In the first instance this is a probing amendment. I am concerned with Clause 16 (1), which is a Henry VIII provision superficially of a fairly extreme sort. It states:
I am aware that the Delegated Powers Scrutiny Committee made no objection to this clause. I am also aware that it is intended to deal with an extremely complicated situation with regard to overpayments into court, complicated also by a case which I am handicapped in discussing because it is, or was until recently, sub judice. Nevertheless, this power is very widely drawn.
I gave notice to the Minister that I intended to put down this amendment, first to try to obtain some indication of what he wanted to do with this power and, secondly, to ask whether the drafting could in some way be made tighter so as to tie the Government and any successors more carefully to the specific intention of
Lord Mackay of Ardbrecknish: The noble Earl's amendment, as he explained it, is put down because of his concern about the operation of the regulation-making powers in Clause 16 of the Bill. These regulation-making powers are intended to deal with circumstances currently provided for in Section 93 of the 1992 Act. These circumstances concern where a payment into court is made. These are the circumstances encompassed by the regulations. Provision is needed to make it clear how the reformed scheme will operate in respect of such payments. Such provision will essentially concern issues of procedure which we think are more appropriately dealt with under secondary legislation.
The noble Earl pointed out that the Seventh Report of the Select Committee on Delegated Powers and Deregulation reported on this Bill and did not draw any adverse inference from the inclusion of these regulation-making powers. I hope that that reassures the noble Earl and that my explanation of the narrow circumstances surrounding payments into court allays his fears.
Earl Russell: I thank the Minister for the reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Turner of Camden moved Amendment No. 37:
The noble Baroness said: This, too, is an amendment to the clause of the Bill relating to payments made into court. At the moment Clause 16(3) reads:
Amendment No. 37 is grouped with Amendment No. 38, the intention of which is to apply the same procedures to Scotland, because, as the Bill is currently drafted, as it says here:
I hope that the Minister will accept that what we propose here is to the benefit of claimants and will prevent injustice of the kind indicated in the McCaffrey case occurring in future. I beg to move.
Lord Mackay of Ardbrecknish: The first issue raised by the noble Baroness cuts across departmental boundaries and relates to the rules of court, which are generally the responsibility of my noble clansman, the Lord Chancellor.
As the noble Baroness has pointed out, this is an issue which was recently appealed to the Court of Appeal in the case of McCaffrey v. Datta. We shall want to study the judgment in that case before contemplating any amendment to the clause. In any event, the regulation-making powers provided in Clause 16 give us considerable flexibility. Subsection (3), in particular, allows for the rules of court to make provision governing practice and procedure in cases involving benefit recovery and payment into court. I therefore do not think it necessary to set out on the face of the Bill any of the rules for determination of costs where a payment into court is made. We shall want to study the Court of Appeal judgment in the case to which the noble Baroness referred to see if we require to do anything.
Turning to Amendment No. 38, the noble Baroness asked me about the position in Scotland and pointed out that the clause does not extend to Scotland. That is quite deliberate; indeed, it does not extend to Scotland. The reason is that the Scottish procedures are a little different from the English procedures. In Scotland there is no provision for payment into court; instead, a minute of tender may be lodged, fulfilling a similar function to a payment into court. As I understand it, the lodging of a minute of tender does not require the defendant to make payment at that time; he makes an offer, but no money changes hands. It is necessary to make special provision in relation to payment into court in England and Wales in the Bill as it is possible that the payment into court may be accepted and ultimately become a compensation payment, triggering liability for the full amount of benefit. If a minute of tender is accepted in Scotland, however, it will still be the case that no payment is made into court. Any payment will be made to the party who accepts the offer in the minute of tender. Once the offer has been accepted, settlement takes place. It is only when such a payment is made that any liability will be triggered.
I am grateful to the noble Baroness for drawing this matter to the Committee's attention. I hope that I have been able to reassure her about the Scottish position and that no provision is required in respect of minutes of tender.
Page 8, line 27, leave out from beginning to second ("in") in line 28 and insert--
("(1) This section applies where a court makes an order for a compensation payment to be made in any case, unless the order is made with the consent of the injured person and the person by whom the payment is to be made.
(2) The court must,").
Page 8, line 32, leave out subsection (1).
"Regulations may make provision (including provision modifying this Act) for any case in which a payment into court is made".
In fact, it gives the Minister power by regulations to alter the primary legislation.
Page 8, line 42, at end insert ("and must make provision to ensure that the amount of recoverable benefits is disregarded when the issue of costs arises for consideration by a court").
"Rules of court may make provision governing practice and procedure in such cases".
In this amendment we seek to insert at the end:
"and must make provision to ensure that the amount of recoverable benefits is disregarded when the issue of costs arises for consideration by a court".
It is my understanding that there have been problems about payments into court in the past, and there may very well be in the future unless we have an amendment to this effect in the Bill. As I understand it, there is a case outstanding at the present time, the case of McCaffrey, in which the claimant has ended up with a net figure less than the payment into court once DSS benefits are deducted; moreover, the claimant was ordered to pay the costs from the date of the payment into court. As I understand it, that case is currently before the Court of Appeal. It indicates clearly that there can be injustices to accident victims in such instances.
"This section does not extend to Scotland".
In this amendment we seek to insert the following:
"Any reference in this section to 'payment into court' shall be construed as if the word 'tender' was inserted in its place, in relation to any case being pursued in a court in Scotland".
That is because "tender" is the wording usually used in relation to payment into court in Scotland.
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