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House of Lords

Monday, 24th May 1999.

The House met at half-past two of the clock: The LORD CHAIRMAN OF COMMITTEES on the Woolsack.

Prayers--Read by the Lord Bishop of Hereford.

Habitual Residence Test

Earl Russell asked Her Majesty's Government:

    Whether they will revoke the habitual residence test, in the light of the judgment of the European Court of Justice in the Swaddling case that it is illegal.

The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham): My Lords, we have previously explained that our review of the habitual residence test would need to take account of the judgment of the European Court of Justice in the Swaddling case. This was given on 25th February and we have been assessing its implications, not just for Mr. Swaddling, but for those whose circumstances are similar to but do not exactly match his case. We shall bring forward our recommendations for the future soon, certainly no later than the Summer Recess. I shall be delighted to write to the noble Earl when this happens.

Earl Russell: My Lords, first perhaps I may have the pleasure of wishing the Minister many happy returns. I also thank her for the promise of jam tomorrow. Is the Minister aware that the concept of habitual residence is so imprecise and uncertain in law that the Government should not be confident, even though I have no doubt that they are, that they will avoid a further such judgment in future? Does she also recall that in opposition her party commented so severely on this test that it is difficult for it to continue it without appearing to be lily-livered?

Baroness Hollis of Heigham: My Lords, first I thank the noble Earl very much. However, if he really had had my best interests at heart today of all days he might have postponed his Question until after the European elections. To deal with the first part of the Question, the noble Earl is absolutely right. This is a very complex area, for two reasons. First, unlike most other countries we do not have a written constitution and therefore a clear definition of what a British citizen or national may be. Secondly, given a country with a long imperial past we have at least six different statuses of British national under British immigration law, all with different rights. The noble Earl is correct about that. For that reason, he and I when in opposition joined together and said that there must be a review, and that is what has happened. The Swaddling case went to the European Court in February 1997, just before we came into power, and was determined two years later in February 1999. In the light

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of that we are seeing to what extent the habitual residence test could and should be thoroughly overhauled.

The Lord Bishop of Oxford: My Lords, acknowledging that there are many grey areas and that this is a difficult matter, can the Minister explain how the habitual residence test bears upon, for example, aid workers who work overseas for a long period of time and members of Asian families who may go to the Asian subcontinent for a long period, perhaps to get married, before returning to this country?

Baroness Hollis of Heigham: My Lords, the right reverend Prelate is exactly right in identifying those groups. I read the judgment in Swaddling yesterday. It makes clear that, first, it should help UK nationals who work abroad, like Mr Swaddling and missionaries. When they come back they do not have to live here for an appreciable period of time in order to establish their rights to income-related benefits. Secondly, it will also help UK nationals with overseas links, particularly people from ethnic communities in this country. Thirdly, it will help UK nationals who return, perhaps because of misfortune like a broken marriage or ill-health. Fourthly, the Swaddling judgment should also help those UK nationals who were taken abroad as children to establish right of residence. We expect it to have a substantial effect on people who so far have had a shadowy claim to establishing right of residence here.

Earl Russell: My Lords, can the Minister say what the habitual residence test can do that the "actively seeking work" rules cannot do better?

Baroness Hollis of Heigham: My Lords, the habitual residence test entitles people to a range of income-related benefits: housing benefit, council tax benefit, income support, some disability benefits and JSA. After six months one is entitled to child benefit as of right. Even if one fails the test it does not prevent one from residing here, finding a job and making national insurance contributions towards contributory benefits. The Swaddling judgment will ensure that anybody with an established connection with the UK does not have to serve a period of time--in Swaddling's case, about eight weeks--before he or she is entitled to income-related benefits. But there are still very many people with fairly nebulous or sketchy connections with the UK who want to come to this country, and we must balance their wishes for financial support against the rights of the taxpayer.

Lord Campbell of Alloway: My Lords, is the Minister able to give some form of undertaking that if the law is changed as a result of the Swaddling case it will have no effect on revenue law?

Baroness Hollis of Heigham: My Lords, the Swaddling case will reduce the savings that would otherwise come from benefit reductions. Nonetheless, under the habitual residence test at present if people are ineligible for income-related benefits they have rights

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under the National Assistance Act and the Children Act. The test has not generated many savings. At present savings are about £18 million a year. The Swaddling judgment may reduce the figure to half that sum. However, we wait to see the full read-across implications of Swaddling to the range of people who apply for habitual residence in this country.

Hepatitis C Infection

2.42 p.m.

Lord Morris of Manchester asked Her Majesty's Government:

    What recent assessment they have made of the special needs of people with haemophilia who were infected with hepatitis C during NHS treatment, and the dependants of those for whom the infection proved fatal.

The Parliamentary Under-Secretary of State, Department of Health (Baroness Hayman): My Lords, the Government made a thorough assessment in 1998 of whether it would be right to introduce a special payment scheme for people with haemophilia infected with hepatitis C through NHS treatment. We concluded that this would not be appropriate and that such patients should continue to obtain support as necessary through the benefits system in the same way as other NHS patients who have suffered non-negligent harm.

Lord Morris of Manchester: My Lords, the Secretary of State for Health said last July that the social stigma of HIV and the danger of infecting partners were "important considerations" in granting special payments for HIV infection which do not apply in the hepatitis C cases. Can my noble friend point to where that was officially stated when the Major Government announced their HIV compensation scheme? Is my noble friend aware that governments elsewhere see no such distinction, and that Canada, Italy and Ireland already have special financial schemes for hepatitis C infection? How many NHS patients infected with hepatitis C have since died of liver disease? And when can we expect a response to the Haemophilia Society's urgent request for a public inquiry?

Baroness Hayman: My Lords, I understand the strength of feeling. The campaign that the Haemophilia Society waged was moving and forceful. However, we concluded that a public inquiry was not the way forward and would not help prevention of future transmission. That has been covered by advances in screening and the ability to make blood products safer. I recognise the belief that there is a comparison with the HIV special payments. But there are also comparisons with large numbers of other patients who have suffered non-negligently as a result

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of treatment given as the best at the time. It is a difficult area but we do not believe that it would be appropriate to offer special compensation.

Lord Clement-Jones: My Lords, can the Minister confirm that this is a clear breach of a pre-election pledge given by her party? Can she explain why countries such as Australia, the US, Ireland, New Zealand and Germany--the noble Lord, Lord Morris, mentioned others--have circumstances which are quite different from the United Kingdom?

Baroness Hayman: My Lords, it is difficult enough to answer for one government. I am not sure that I should answer for six others. Recompense for non-negligent injury varies from country to country. In this country it has been well established that we do not compensate for non-negligent harm caused through NHS services. Although that is difficult for people who have suffered a great deal, we have to recognise the implications as regards resources available for patients at present were we to adopt a different attitude.

My noble friend asked about the number of haemophiliacs infected. It is estimated that some 4,000 people were infected with hepatitis C through NHS treatment. About 90 of those have died; and about six or seven are awaiting liver transplants.

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