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Lord Hardie moved Amendments Nos. 57 to 61:

Page 27, line 12, at end insert ("against the amount of the assessment or the date from which the assessment takes effect").
Page 27, line 22, at end insert ("against the cancellation or refusal").
Page 27, line 24, leave out from ("of") to ("as") in line 25 and insert ("that right and, in the case of a right conferred by subsection (1) or (3), such notice of the decision").
Page 27, leave out lines 26 to 30.
Page 27, line 32, at end insert ("and
(b) such provision with respect to proceedings before appeal tribunals as the Secretary of State considers appropriate.
( ) The regulations may in particular make any provision of a kind mentioned in Schedule 5 to the Social Security Act 1998.").
Page 27, line 38, after ("decision") insert ("or assessment").

On Question, amendments agreed to.

Clause 42, as amended, agreed to.

Clause 14 [Redetermination etc. of appeals by tribunal]:

6.45 p.m.

Lord Goodhart moved Amendment No. 62:

Page 8, line 33, leave out ("shall") and insert ("may").

The noble Lord said: Since I put down this simple and limited amendment, I have considered Clause 14 rather more closely, as perhaps I should have done earlier. It seems to me--I hope that the Committee will excuse my raising this point--that the real issue is whether Clause 14 should be in the Bill.

I am distinctly puzzled by the clause. Clause 14(1) states:

    "This section applies where an application is made to a person under section 15(10)(a) below for leave to appeal from a decision of an appeal tribunal".
That links with Clause 15(10)(a) which states:

    "No appeal lies under this section without the leave of the person who constituted, or was the chairman of, the tribunal when the decision was given or, in a prescribed case, the leave of such other person as may be prescribed".
Clause 15(10) provides for the usual perfectly straightforward and acceptable requirement for leave to appeal in certain circumstances. Clause 14, in effect, is requiring in certain circumstances the person who is asked to give leave to remit it for determination by a different tribunal rather than giving leave. That will produce some very peculiar circumstances.

The person from whom leave is sought will normally be the tribunal chairman. The regulations may provide for someone else to do that no doubt if the chairman is not available. That person could be another member of the tribunal or perhaps someone else on the panel. Clause 14(2) will have a peculiar and awkward effect, if the person hearing the request for leave thinks that the appeal was wrongly decided. That may arise in two different cases. First, the person from whom leave was sought was a member of the tribunal that heard the case but was outvoted. Where a tribunal is divided on a question of law, there is a strong case for sending it up to the next level to be decided by the commissioner. But in this case, that cannot happen. If the person who is asked to give leave was in the minority, of course he will consider that the decision was erroneous. That goes

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by definition. If he were in the minority, he must consider the decision erroneous. He is therefore not only entitled but bound under Clause 14 to send the matter back for redetermination.

Clause 14(2) states:

    "If the person considers that the decision was erroneous in point of law, he shall set aside the decision and refer the case either for redetermination by the tribunal or for determination by a differently constituted tribunal".
Let us say the chairman of the tribunal was outvoted. He wants to say, "It is an important and difficult case. I was in the minority. But I think the appropriate thing to do is to send it up for decision at the next level by the social security commissioner". He then has to say to the appellant, "But I cannot do that. I should like to; but because I consider the decision was erroneous, I have to send it back for redetermination".

Secondly, the person from whom leave is sought is what I might call an outsider--someone who was not a member of the tribunal that heard the case from which an appeal is sought. Occasionally it will be obvious that the tribunal made a mistake in law, perhaps by overlooking a specific regulation. That may happen more often if we have non-legally qualified chairmen, as we discussed the other day. But more commonly it will not be an obvious mistake, and the person from whom leave is sought will have to consider not only whether there is a point of law of sufficient difficulty and importance to justify the appeal, he will also have to say to himself, "Do I think that the tribunal got it wrong? If I do, I then have to send it back for redetermination and I cannot give leave to appeal".

That seems to lead to the suggestion that if at first sight he thinks that the tribunal got it wrong, he may even have to hear as full argument as may be available so that he can make up his own mind. Surely, if a person thinks that there is a point of law of difficulty and importance, he should be able to send it to the commissioner even if his own personal view is that the tribunal, or the majority of the tribunal, were wrong.

Clause 14(3) makes provision where the person from whom leave is sought thinks that the decision was right, but both the parties consider that the decision was wrong in law. If they think the decision was wrong in law and they agree on the reasons why it was wrong, there is a case for sending the case back. But, frankly, I believe that will happen rather rarely. More often, the parties will have different reasons for thinking that the decision was wrong. In those cases, surely again the person hearing the application for leave to appeal should be able to send the case to the commissioner and not back for another rehearing. What happens then if a new tribunal reaches the same view as the first? Does the case have to shuttle backwards and forwards between the tribunals?

I do not think that Clause 14 raises a point of principle. It simply introduces an ill thought-out form of procedure which is likely to stop cases going to the commissioner that should go, or require a second tribunal to examine matters again before they do go to the commissioner.

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I would ask the Minister whether this matter might be reconsidered; there is a problem here. The Government might re-examine the drafting to try to see whether what is thought to be achieved by Clause 14 is in fact needed, and perhaps return to the matter on Report. I beg to move.

Lord Hardie: I accept that this clause introduces an entirely new provision and a new concept. The intention, again, is to speed up the process where an appeal tribunal has made an error in law by allowing the issue to be re-determined, either by the same tribunal or by a differently constituted tribunal.

At present, there is a right of appeal to social security commissioners or child support commissioners. This provision would not do away with that right of appeal, but it may dispense with the need to go to the commissioners in certain circumstances.

Perhaps I may deal first with Clause 14(3). Where it is clear to all the principal parties that the tribunal has made an error in law, the only way currently to correct that is to go to the commissioners. There are very limited exceptions to that rule. Many of the mistakes are procedural; for example, the failure by a tribunal to record properly the reasons for the decision.

Social security commissioners are overwhelmed with hundreds of cases which could be quickly and easily dealt with by a tribunal hearing. In that situation, what the commissioners do is refer the matter back to a differently constituted tribunal, or to the same tribunal to give reasons. But obtaining a commissioner's decision can take up to a year after the tribunal hearing. The outcome of that, as I said, is often simply to return the matter to another tribunal for a re-hearing. As noble Lords will see, there is a huge waste of time and resources involved in putting matters right, particularly when everyone agrees that there has been an error. We feel that claimants and appellants would be better served if the effort were spent on consideration of cases which raised issues of legal substance and dealing with them more quickly.

When a person seeks leave to appeal against the decision of an appeal tribunal, two procedures are provided for in this clause. First, as the noble Lord, Lord Goodhart, observed, if the person considering the application agrees that the tribunal erred in law, then he or she will set aside the decision. That will be done by the chairman of the tribunal or the single person. If the chairman is not available, regulations will provide for another panel member to consider the application. The case may be referred for a re-hearing to the same tribunal or to a differently constituted one.

I accept the point that we perhaps ought to look at the drafting of subsection (2) because of the concerns raised by the noble Lord. But apart from that issue, I respectfully suggest that this clause is an improvement and is of benefit to claimants. In indicating that I will examine the drafting of subsection (2), it may be that, having reflected, I shall return with the same wording. However, I certainly undertake to look more closely at the wording of that subsection.

Regarding the other points, I hope that noble Lords will accept that there is some force in the thinking behind this position--particularly where everyone agrees that there

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has been an error, and especially a procedural one--that there ought to be a much quicker remedy to appellants than having to wait for a year for the case to come before the commissioners.

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