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Lord Hardie: My Lords, this is not a matter which is consequential upon devolution. I certainly do not anticipate any further alteration in the powers of the Lord Advocate during the course of the proceedings on this Bill.
On Question, amendment agreed to.
Lord Hardie: moved Amendment No. 24:
On Question, amendment agreed to.
Clause 15 [Appeal from Commissioner on point of law]:
Lord Hardie moved Amendment No. 25:
On Question, amendment agreed to.
Schedule 5 [Regulations as to procedure: provision which may be made]:
Lord Hardie moved Amendment No. 26:
On Question, amendment agreed to.
Clause 17 [Finality of decisions]:
Lord Hardie moved Amendment No. 27:
The noble and learned Lord said: My Lords, in moving Amendment No. 27 I shall, with the leave of the House, speak also to Amendments Nos. 74 and 77. In Committee we had the opportunity to debate the provisions in the Bill which make decisions final, and which allow for regulations to be made for findings of fact contributing to such decisions to be made conclusive for the purposes of further decisions. I explained that the purpose of these provisions was to allow, by regulations, for findings contributing to decisions to be made once only. Findings or determinations made in relation to one benefit or business area could be made to apply across the whole system, without the need for the matter to be re-investigated. I subsequently wrote to noble Lords giving a fuller explanation of the policy underlying the provisions with more details of how we expect them to work in practice. In fact, the letter emanated from the department in my name because I was absent at the time in question.
These technical amendments ensure that subsection (2) of each of the finality provisions for benefits, child support and vaccine damage payments, mesh together properly. They do not change the policy as set out in earlier debates and subsequent correspondence.
As currently drafted, the Bill may only allow regulations to provide for findings contributing to decisions on benefits, child support and vaccine damage payments to be conclusive for the purpose of further decisions in those particular benefits or business areas. Our intention is that we should be able to make findings contributing to any decision covered by the Bill conclusive for the purpose of any other decision covered by the Bill. The amendments achieve this by ensuring that each of the provisions enabling sub-issues to be conclusive cross-refers to the others.
It is our aim for the future development of the welfare system to find ways for information to be collected from claimants once only, and then used as appropriate across all areas of the department's business to reduce the burden on claimants and agencies alike. These amendments ensure that there is maximum flexibility for findings to be made conclusive in regulations across the boundaries of the Bill, the Child Support Act and the Vaccine Damage Payments Act. I commend them to the House. I beg to move.
Lord Renton: My Lords, first, may I say that I was grateful to receive a letter sent on behalf of the noble Baroness, Lady Hollis, dated 16th April on this question of finality of decisions. It is right that we should aim at finality of decisions, but there are circumstances-- I should have thought--in which further facts arise
Lord Hardie: My Lords, I am grateful to the noble Lord for giving me time to receive the necessary information. All new information will be taken into account and any decision can be reviewed at any time where there is a change of circumstance. In a situation where new facts apply the claimant ought to make that new information available to the department and the decision will be reviewed in the light of those new facts. Those new facts would then become the final facts for the purpose of benefits.
Lord Renton: My Lords, I thank the noble and learned Lord for that explanation, which is obviously a satisfactory one.
On Question, amendment agreed to.
Clause 18 [Matters arising as respects decisions]:
Clause 25 [Decisions involving issues that arise on appeal in other cases]:
Baroness Anelay of St. Johns moved Amendment No. 29:
The noble Baroness said: My Lords, in moving Amendment No. 29 I wish to speak also to Amendments Nos. 30 and 31. Clause 25 deals with the power to stay a decision pending another decision in a lead or test case. These amendments would restrict that power. Amendment No. 30 seeks to delete the words "it possible". If those words were deleted, Clause 25(2) would state,
Where a decision is withheld under Clause 25, the claimant could be left without benefit for a considerable period of time while the test case is decided. In view of
Amendment No. 31 requires the Secretary of State to give the claimant an opportunity to make representations as to why a decision should not be withheld in his or her case. The reason for this is that there is no right of appeal against the exercise of the powers under Clause 25. Before 1996 the Secretary of State used the power to suspend benefit in similar circumstances. In theory, it should have been possible to get the Secretary of State to lift a suspension either on the grounds that the case was not a look-alike or because the claimant was experiencing hardship. In practice, however, I am told by the Child Poverty Action Group that the experience of advisers was that once a decision to suspend was made it was difficult to get it lifted. If the Secretary of State is required to consider representations before she makes a decision, I believe that she is more likely to consider them with an open mind. I beg to move.
Earl Russell: My Lords, this is a sensible amendment. It is a little milder than mine, which is to come next. It might perhaps therefore be rather more acceptable as a compromise. The trouble with the Secretary of State's power here is that she at least risks the appearance of acting as judge and party in her own cause, being herself a party to a number of the cases which are being disputed. It is a good idea that there should be some machinery which causes the Secretary of State to pause before making such a declaration. The noble Baroness may perhaps have found it. I shall listen to the Minister's response with a good deal of interest.
Lord Hardie: My Lords, this group of amendments seeks to alter the provisions in subsection (2) of Clause 25. Amendments Nos. 29 and 31 would make subsection (2) subject to a new subsection (2A). This would require the Secretary of State to provide a 14 day period for a claimant to make representations before exercising the provisions of subsection (2). Amendment No. 30 narrows the provision in subsection (2).
We have previously discussed the operation of Clause 25 and I shall not repeat all the arguments we rehearsed in Committee. But I should like to explain to the House why we have taken the position set out in the Bill.
In Clause 25 as drafted, if the Secretary of State considers it possible that the result of the appeal in a lead case will be such that if it were already determined there would be no entitlement to benefit in a look-alike case, she need not make a decision on that case until the appeal in the lead case has been decided. Amendment No. 30 seeks to remove the qualifying words "it possible". Presumably, the intention is to require a greater degree of certainty on the part of the Secretary of State that the case is indeed a "look-alike". But I am not convinced that removing these words will achieve this. Nor do I consider that it would be realistic to expect an absolute certainty that an appeal will be decided in a particular way.
If there is an appeal pending in a lead case in which the Secretary of State is an interested party, she will have either made or joined in that appeal on the basis of legal advice as to the proper interpretation of the issue of law in question. She will not have acted on a whim. She therefore considers her interpretation--that there would be no entitlement to benefit--to be correct and that it should be upheld by a court. However, as a matter of common sense, this cannot be held to be an absolute certainty.
Amendments Nos. 29 and 31 would prevent the Secretary of State from exercising her power to delay making a decision until the person concerned has had 14 days in which to make written representations about why the power should not be exercised. But as the Bill stands, this would not have any material effect. If the Secretary of State were required to make a decision immediately in a look-alike case, she would make an award and then suspend payment of benefit, until the lead case was resolved. Following determination of the appeal, she might, in some cases, then be required to revise this decision. The amendment would introduce an additional administrative step into all cases which are stayed in this way, even where there is no disagreement that an individual case is a "look-alike". Any claimant who considers his or her case is not a genuine "look-alike" will be advised to make contact with the relevant office of the Benefits Agency so that the case can be reconsidered.
I hope that with this explanation the noble Baroness, Lady Anelay, will feel able to withdraw these amendments.
Page 10, leave out lines 5 to 7.
Page 11, line 5, leave out subsection (6).
Page 64, line 9, at end insert--
(" . Provision with respect to the procedure to be followed on appeals to and in other proceedings before appeal tribunals.").
Page 12, line 27, leave out from ("to") to end of line 28 and insert ("such a decision, or on which such a decision is based, shall be conclusive for the purposes of--
(a) further such decisions;
(b) decisions made under the Child Support Act; and
(c) decisions made under the Vaccine Damage Payments Act.").
7.15 p.m.
Page 15, line 21, at beginning insert ("Subject to subsection (2A) below,").
"In a case relating to a relevant benefit, the Secretary of State need not make the decision while the appeal is pending if he considers that the result of the appeal will be such that, if it were already determined, there would be no entitlement to benefit".
If the Secretary of State has only to consider it possible that the test case is relevant, this gives her the licence to withhold decisions in a wide range of cases. The proposed amendment does not require the Secretary of State to be certain that the test case is relevant, but it places a greater burden of certainty on her than is the case at present.
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