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Lord Skelmersdale: I support my noble friend in her remarks in relation to Amendment No. 35 which predicates that the officer of the Board does not have that special expertise himself and therefore needs to obtain it elsewhere. I hope that the Minister can tell us
that this is one occasion when "may" means "shall". If not, I have no doubt that my noble friend and I will have further questions to ask.
Baroness Hollis of Heigham: I am so relieved that the noble Lord will only have further questions to ask without commitment to further amendments before hearing the reply.
These two amendments deal with expert advice, particularly medical advice, available to officers of the Board. Before I deal with the amendments, and the points raised by the noble Baroness, I should first explain the background and why the clause is needed. Clause 8 is based, and indeed largely lifted straight from, Section 11 of the Social Security Act 1998. It provides the framework for Inland Revenue decisions on the issues that are set out in Clause 7. It provides for regulations to be made by the Board of Inland Revenue covering these decisions.
Turning now to Amendment No. 35, this would mean that if it appeared to an officer that any decision they were making involved a question of fact that required special expertise, then they would have to obtain the assistance of an expert in making that decision. This would mean that every such decision would require expert assistance. Public money would have to be spent even if the sums at stake on the decision were trivial.
In practice the Board will write guidance for their officers to follow in making decisions. We do not think it likely that there will be many cases in which officers will need expert guidance of the kind not currently available from current CA or Inland Revenue experts. If a particular matter looks likely to arise more than occasionally, then the Board's guidance to its officers will include appropriate guidance, Where appropriate that guidance would be written with expert assistance. Where such a question arose sufficiently frequently then the Board would consider whether it was appropriate to employ experts. Certainly, the Board would not expect staff untrained in such matters to make judgments on, for example, medical matters. We intend that the Inland Revenue will have access to medical advice from SEMA doctors, who currently provide such advice to the Benefits Agency.
By making the assistance of experts mandatory, the amendment does not take account of whether such additional assistance is necessary in the light of what is available in terms of internal guidance, or in relation to the significance of the decision. By requiring the Inland Revenue to seek expert help, even when written guidance was available, this amendment could impose an unjustified administrative and financial burden on the Board without any objective improvement in the decision-making process.
Similarly, Amendment No. 51 seeks to retain the Social Security Act 1998 provisions which allow the Secretary of State, when making decisions on entitlement to statutory sick pay, statutory maternity pay or an appeal tribunal, when determining an appeal against such decisions to those benefits, to refer the person concerned to a medical practitioner for examination and report.
If accepted, the amendment would leave in place a provision which could never be used. That is because the Bill provides that decisions about entitlement to statutory sick pay or statutory maternity pay will in future be determined by officers of the Board, and appeals will be heard by tax appeal commissioners. Neither the Secretary of State nor tribunals constituted under the Social Security Act will determine entitlement to these benefits.
6.15 p.m.
The noble Baroness asked what would happen if medical advice were not taken, or taken into account; and what redress would be available. It may be helpful if I explain how decision-making on statutory sick pay works. The first point is that questions relating to entitlement to these benefits are normally made by the employer concerned. They are referred for a formal decision only where agreement cannot be reached between the employer and the employee. Such referrals mostly concern questions of whether the person making the claim is an employee or what are their average earnings. Very few cases referred for a decision, and even fewer appeals, raise the issue of the employee's medical condition, even with SMP and SSP. The noble Baroness's question concerns only a very small minority of cases. I asked for the statistics this morning, and of 500 cases a year concerning SSP or SMP, perhaps only 50 involve a medical issue. The rest are likely to be related to linking rules or employment rules and therefore do not require expert medical advice at all.
If medical evidence is required, it will almost invariably be because an employer is disputing that an employee is or was incapable of work at a certain time. In the first place, it will be for the employee to produce medical evidence in support of his claim. This will normally be a medical certificate. Where this does not satisfy the employer, he may well seek a more developed written report from the employee's GP or consultant, which will be available both to the officer of the Board of the Revenue and the employee.
The officer of the Board will consider the medical evidence provided. Clause 8 enables him or her to seek the assistance of an expert where it appears that a matter involves a question of fact requiring special expertise. In the light of the fact that very few medical disputes are anticipated it is likely that the officer will call upon such assistance in most cases--the likely exceptions being where the sums at stake do not justify the cost of expert advice.
Indeed, if the officer did not seek advice, or failed to take proper account of it, he or she would have a thin case to put before the appeal commissioners. The appellant can put his or her evidence directly to the commissioners. The likely result would be that the commissioners, looking as they do at the balance of evidence before them, would find for the appellant.
Accordingly, the first route of redress in these few cases would be to seek a hearing before the appeal commissioners. Then, in the process of seeking to settle an appeal by agreement rather than by formal hearing,
the official could reconsider the need for specialist advice in the circumstances, as happens already for tax issues.Ultimately, and I hope such cases never materialise, revised codes of practice on official error, the adjudicator and the ombudsman, offer other routes of redress.
I believe this to be a practical and fair approach to the small number of disputes that will arise on SSP/SMP entitlement issues. I hope the noble Baroness is content with my explanations of how the arrangements for statutory sick pay would work and is content to withdraw the amendment.
Baroness Anelay of St. Johns: I am grateful to the Minister for that information, particularly with regard to the further redress available to appellants within the new system of appearing before this Board rather than before the UAT. The noble Baroness stated that it is anticipated that there will be approximately 500 cases a year of SSP and SMP, of which only 50 would require medical advice.
Baroness Hollis of Heigham: That is the current situation. I have no reason to think that it will change, but I would not like there to be any misunderstanding.
Baroness Anelay of St. Johns: I am grateful to the noble Baroness for that clarification. Even on the basis of only 50 individuals, whether medical advice is not only sought but taken seriously and accepted can be a very important matter for them. I raise these issues in the context of concerns at UATs where medical experts are in a somewhat invidious situation. Do they offer advice independently or must they wait to be asked? However, on the basis of the explanation given by the noble Baroness about regulations relating to the use of medical experts, their role may be clearer at the board than it is currently at the UAT. In those circumstances, I beg leave to withdraw the amendment
Lord Skelmersdale: Before my noble friend seeks to withdraw her amendment, I threatened the Minister with a further question if I was unhappy with her answer. I am afraid that I am unhappy with her answer in relation to Amendment No. 35. In the introduction to her response to my noble friend she made two points. First, she said that guidance would be given to officers of the board. Secondly, she said that were my noble friend's amendment accepted on every occasion, special expertise or the advice of experts would be required. Surely, that is not true because the ball is very firmly in the court of the officer of the board. Subsection (2) provides:
- "Where it appears to an officer of the Board that a matter before him involves a question of fact requiring special expertise ..."
Baroness Hollis of Heigham: I wonder whether we are chopping words here. Clearly, if the advice that the officer needs to draw upon is available by written guidance, the question is whether that is "expert" or "expertise". That appears to be the difference between the two. I am not sure what point the noble Lord seeks to make. Where there is a frequently occurring problem, we expect it to be covered in the normal guidance and that will provide the expertise required. I suspect that that will relate largely to employment law. There may be many more individualised cases that are medically or disability-based where that expertise is not available to the officer of the board because he has not had medical training. He will be expected to seek such advice as is appropriate.
But we do not seek to lay down expert advice, in the sense that a person must always be required to come in, where it can be covered either by written material or the costs are disproportionate to the money in dispute. I am not sure that there is any difference. The noble Lord may want to read the answer carefully. If he is still concerned perhaps he will write to me. If he still feels he has not had a response to his question, he has at least two further opportunities to move amendments in order to deal with this issue.
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