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Social Security Bill

House again in Committee.

Clause 27 [Restrictions on entitlement to benefit in certain cases of error]:

Lord Hardie moved Amendment No. 76A:

Page 17, line 28, at beginning insert ("Subject to subsection (1A) below,").

The noble and learned Lord said: In moving Amendment No. 76A I wish to speak also to Amendments Nos. 78, 79, 81, 85, 85A, 87, 91 to 97 inclusive, 132, 147E to H inclusive, 147J and 147M.

Amendments Nos. 87, 97 and 132 relate to entitlement to arrears where claimants have obtained a revision of the Secretary of State's decision. The other amendments will ensure that the provisions of Clauses 27 and 44 and paragraph 47 of Schedule 6 comply with European Community law requirements to provide an effective remedy. They will also ensure compliance with the European Convention on Human Rights (ECHR) which requires a proper determination of civil rights.

During the Bill's Second Reading in this Chamber the noble Lord, Lord Goodhart, raised concerns regarding Clause 27 and its compliance with European legislation. I am grateful to him for that. I shall explain the purpose of our amendments. I am also grateful to the noble Earl, Lord Russell, who also raised concerns about Clause 27. I hope that I shall be able to satisfy the noble Earl's concerns.

It may assist the Committee if I briefly explain the purpose of Clause 27 before I explain why the amendments have been proposed. Clause 27 deals with restrictions on entitlement to arrears of benefit following a decision by a commissioner or a court which overturns the previous view of the law. The clause replaces and clarifies existing provisions in Sections 68 and 69 of the Social Security Administration Act 1992. These provisions are complicated and have been subject to legal challenge.

The clause applies where a commissioner or a court makes a decision in a case which reinterprets the law in a particular area. But the clause as originally drafted provides that only the person involved in that case will have any increase in his benefit entitlement paid from the date of the original decision. All others affected by the new interpretation of the law would have had any increase paid from a common date set in regulations. That approach was intended to safeguard public funds.

However, in the light of what was said at Second Reading, we have looked again at the construction of the clause and have concluded that to ensure compliance with European law--and to satisfy, at least as far as possible, the concerns of noble Lords opposite--amendments are required.

Amendments Nos. 76A and 85A will ensure that when the outcome of an appeal overturns an understanding of the law, arrears will be payable in look-alike cases where the Secretary of State withheld making a decision as a decision in a lead case was pending; required an appeal tribunal or a commissioner to refer a case to her so that she could withhold making

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a decision until after the lead case was decided; and where the Secretary of State supersedes the decision of a tribunal or a commissioner as a consequence of the decision in a lead case. I hope that that will answer the question posed by the noble Lord, Lord Higgins, when we discussed Clauses 25 and 26.

Amendments Nos. 91 and 96 provide similar provisions for child support in Clause 44 as do Amendments Nos. 147E and 147M, which relate to paragraph 47 of Schedule 6.

Amendments Nos. 78, 79, 81 and 85 will ensure that people who have lodged an appeal against a decision before the date of the commissioner's or court's determination in the lead case will have any arrears of benefit paid from the date they become entitled to the relevant benefit. This will ensure that where claimants have done all that they could to correct an error by appealing, they will not be disadvantaged when the point of law in a lead case is decided favourably to them.

Amendments Nos. 92, 93, 94, 95, 147F, 147G, 147H and 147K will ensure that similar provisions will apply where a person has appealed against a child support decision before the date of the commissioner's or the court's determination in the lead case.

The restrictions on payment of arrears will still apply to claimants who did not appeal against the Secretary of State's decision and are nevertheless affected by the re-interpretation of the law. Amendments Nos. 87, 97 and 132 will clarify in the Bill and in the Social Security Administration Act 1992 that this includes claimants who obtained a decision from the Secretary of State, or a revision or supersession of that decision but did not subsequently appeal. Claimants in this position will have any change to benefit or maintenance applied from a common start date--the date of the "determination" of the commissioner or the court in the lead case.

The department always seeks to act within the law. However, there are occasions when a long-standing interpretation of the law is overturned by the courts. Without a power to restrict arrears, the new interpretation could mean that increased benefit would be payable to large numbers of people from the date of their original benefit decision. Allowing windfall payments of arrears of benefit for past periods following a reinterpretation of the law would not be an effective use of limited resources.

The department spends £100 billion of public money each year. We want to make sure that expenditure is focused where need is greatest. This clause, as amended, will mean that the department can fulfil the requirements of European Community law and the European Convention on Human Rights while at the same time exercising proper stewardship of the public purse. It makes sure that changes in interpretation of the law do not result in large unforeseen public expenditure consequences to people who have not made the necessary application. What is more, trawling through thousands of cases to find the ones affected would cost time and money--money better spent on improving services for all claimants.

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I hope that I have assured the Committee that the amendment will ensure that the Bill's provisions restricting benefit entitlement in these circumstances comply with the requirements of European Community law and the European Convention on Human Rights.

Perhaps I may again acknowledge the constructive contributions made at Second Reading on this clause. I trust that the amendments will reassure the Committee on the concerns voiced during that debate. I beg to move.

Baroness Anelay of St. Johns: First, I confirm that the explanation given by the noble and learned Lord satisfies the points previously made by my noble friend Lord Higgins with regard to arrears.

I have to take issue--that may be too strong a word--on a few points. I am somewhat bemused by the explanation given by the Minister. Had it come from Members of our Benches when we sat on the other side of the Chamber, it might have raised more than just one eyebrow of those who belong to the Minister's party. I am pleased to hear the Government taking such great care of the national purse. However, I question the use of the word "windfall" in this context. I am aware that there are occasions when a policy intention is frustrated unexpectedly. What one had thought was the law is not the law because of the way it has been determined in another place. That can happen, and people can find themselves eligible to receive benefits to which they did not appreciate that they were entitled but hoped that they were. I would not call that a windfall. I would have said that that was the money to which they were entitled. Whether those people consider it a bonus is another matter. I believe that they would simply consider it as benefit to which they were entitled and upon which their case had been proved.

I welcome the fact that the Government have approached the problem of the incorporation of the European Convention on Human Rights in the Bill. Perhaps I may be somewhat cheeky and venture to suggest that this is the first Bill going through your Lordships' House where the Government have managed to address the problems of both the incorporation of the ECHR and the consequences of devolution in one Bill. I hope that this is a good sign for activity by the Government on those bases in future Bills.

Lord Goodhart: I do not wish to say much on this occasion. I fear that I may trespass on what my noble friend Lord Russell may say on the next group of amendments. I know that he will wish to expand somewhat on the effect of the amendments in the current group.

However, I am most grateful to the noble and learned Lord the Lord Advocate. This has moved a substantial way in the direction we sought at Second Reading. I am particularly grateful that the Government have taken on board the points that I and others raised on the European Convention on Human Rights. Therefore so far as the amendments go we welcome them.

Lord Hardie: I would not suggest for a moment that the noble Baroness could ever be cheeky either in this House or elsewhere.

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Perhaps I should clarify the use of the word "windfall". I had in mind people who had not claimed benefit. The provisions which we shall bring into effect, subject to the amendment being accepted, will be to the benefit of the people who thought they were entitled to benefit, and claimed. They would obtain the benefit. But in respect of those who had not so claimed, involving trawling through records, I think that it would be seen in the nature of a windfall if they were to receive a cheque for a substantial sum of money in respect of payment over a number of years. I commend the amendment.

On Question, amendment agreed to.

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