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Lord Ashley of Stoke: I do recognise the practical difficulties outlined by my noble friend. I must say that it is extremely rare for a Minister to offer something better than that offered by someone who has proposed an amendment to a Bill. I appreciate my noble friend's suggestions for investigating and bringing it within the ILF. That would indeed be marvellous if it worked. I look forward to working with my noble friend and discussing this suggestion which will be of enormous value to thousands of deafblind people. I am very grateful. I am absolutely delighted. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 127E not moved.]

Clause 63 [Certain overpayments of benefit not to be recoverable]:

[Amendment No. 127F not moved.]

Baroness Buscombe moved Amendment No. 127G:

Page 70, line 10, leave out paragraph (a)

The noble Baroness said: In moving this amendment, we are seeking clarification from the Minister of the

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interpretation of the word "review" in the Bill. On 28th January 1997, the Secretary of State said in another place:

    "The review process will involve gathering information by postal inquiry and home visits".--[Official Report, Commons, 28/1/99; col. WA321.]

We have a number of questions on this matter. Can the Government confirm that the reviews they have in mind are very similar in kind to reviews carried out at home by administrative personnel from the Benefits Agency or by postal inquiry? If the reviews are going to be of a different kind, we would like to know what procedures the Government have in mind. In addition, Clause 63 refers specifically to the disability living allowance, incapacity benefit and severe disablement allowance. But what about disability working allowance, industrial injuries disability benefit or the disability premiums in income support?

Furthermore, what will happen if someone still owes money from a previous review? Will there be an attempt to reclaim that money? Will DLA claims be dealt with on the same terms and subject to the same regime as beneficiaries of incapacity benefit or severe disablement allowance? What will be the financial consequences and will that depend entirely on the outcome of the reviews?

In essence, we would like reassurance that the review process will be a positive one, such that it will not alienate people while ensuring that it achieves the right objective, which is to make sure that entitlement is fair. We want to safeguard the integrity and effectiveness of the review process. This is a probing amendment and I beg to move.

6.15 p.m.

Baroness Hollis of Heigham: Amendment No. 127G has the effect of removing that part of the clause that defines the word "review". Debates in another place have made it clear that the word "review" can be interpreted in many ways, so I am happy, in response to the probing amendment of the noble Baroness, to make clear the meaning attached to the use of the word in this clause. It was helpful of the noble Baroness to put the amendment in this way.

The provisions of the clause are all about overpayments. It is well established that a recoverable overpayment of benefit can only arise after someone's benefit has been altered to a lower rate, or their benefit has been stopped. The legal mechanism for doing this is a review by an adjudication officer. Awards of benefit are made by adjudication officers and only an adjudication officer, following the proper procedures, can alter such an award by conducting a review.

The Social Security Administration Act 1992 sets out the precise circumstances when an adjudication officer can conduct a "review" and alter someone's benefit. This provision applies whether benefit is being increased or reduced. The definition in Clause 63(5)(a) which this amendment seeks to remove simply lists those provisions that allow someone's benefit to be altered.

There is nothing sinister about this. These provisions allow benefit to be reviewed as a result of a change in someone's circumstances, or the correction of a

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misunderstanding of the facts of the case or because the law was applied incorrectly. Obviously it would be wrong for benefit to continue unaltered in any of those situations.

Such a review could follow from any situation where an award was found to be no longer correct. The term "review" is not linked in any way to any particular initiative such as the benefit integrity project that may have been lurking in the mind of the noble Baroness.

I hope I have explained that, as it stands, the subsection does nothing more than refer to the relevant provisions under which an award for benefit can be changed. The same provisions apply whenever an award is changed, for whatever reason. I urge the noble Baroness to withdraw her amendment.

Baroness Buscombe: I thank the Minister for her very clear explanation of the position and I think she understands the spirit in which my questions have been asked, given the debates that took place in another place. I agree there is nothing sinister about it. We merely wanted to seek clarification as to the proper meaning in this context. I thank the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 63 agreed to.

Clauses 64 and 65 agreed to.

Schedule 8 agreed to.

Clause 65 [Welfare benefits: miscellaneous amendments]:

Earl Russell moved Amendment No. 128:

After Clause 65, insert the following new clause--


(" . In section 137(2)(a) of the Contributions and Benefits Act, at the end insert "so however that regulations may not treat a person who is in Great Britain and who has the right to live in Great Britain for the time being without immigration leave as not being in Great Britain irrespective of where he is habitually or ordinarily resident."")

The noble Earl said: This amendment seeks to abolish the habitual residence test instead of merely modifying it in response to the judgment of the European Court of Justice in the Swaddling case that it is illegal. The habitual residence test since 1994 has been supported by the Court and Treasury Party and opposed by the Country Party, no matter which type of political clothing those parties might wear for the time being. I do not intend to make anything of that but it is my contention, and has always been my contention, that, on this particular point, the Court and Treasury Party happens to be mistaken.

The habitual residence test was introduced as a centrepiece for a party conference speech in order to deal with the dangers of what is described as benefit tourism. If benefit tourism is a term of art, it is very definitely a term of modern art. It has a distinctly abstract quality. I remember the Minister at the time outlining the case in the form of a long series of quotations from an article in Time Out. I asked whether that was still the policy of the Department of Social Security, that it did not base its policy on anecdotal

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evidence. I have as yet received no answer to that question and I would tonight like to repeat it because no other evidence has yet been put before us on this allegedly mischievous phenomenon. As with other sins, we do not know exactly what it is, but we all know that we are against it.

Anyone who was in the House at midnight last night dealing with the Immigration and Asylum Bill will know that getting through our immigration laws is not particularly easy. Anyone who has dealt with debates on the actively seeking work rules will also know that the application of those can be extremely stringent. Where we have one test for entry and another test for life after entry, I have never been convinced that there is any need for a further test.

The test says that you should not receive means-tested benefits if you are not habitually resident in this country. If benefit tourism is a term of modern art, habitual residence is not a term of art or even of law; it is a term of literature. It has no precise legal meaning. That is why, throughout the history of the test, there has been a great deal of difficulty in defining it. It is why the rates of failure in the test, with almost identical pools of applicants, have sometimes been as high as 80 per cent in one place and 20 per cent next door dealing with very similar applicants. Where the test is that wide open, where the legal concepts are that undeveloped, the scope for subjective judgment is very high indeed, which shows up both on the particularly high rate of success in appeals and in the fact that a very high proportion of those who have failed the habitual residence test have been from ethnic minorities.

All our information on this is from sources such as the National Association of Citizens Advice Bureaux. Governments have been particularly careful not to compile statistics on institutional discrimination within the administration of the habitual residence test. But after the Lawrence case, we should think carefully about this, especially since one of the places where the test bites most severely, which in my understanding is not addressed by the new changes in the guidelines, is in extended families from the British Asian community. In cases where an arranged marriage is in prospect, very often there is an extended visit--of many months in some cases--to the family of the prospective in-laws. People regularly return from such visits and are told that they are not habitually resident, which sets a great many marriages off on the wrong foot. I do not think that that does any good.

The lack of a precise legal definition is one of the problems. It was that hurdle over which the Government fell in the case in the European Court of Justice. The court held that the Government had altogether misdefined "habitual residence". The Government-- I welcome what they have done as far as it goes--have changed the test in response to the European Court of Justice in order to say that anyone who has lived in this country and anyone who was born in this country and has a continuing connection should be treated with favour. That does not go all the way. Someone who is taken out of the country as a young child and comes back a number of years later may be held not to

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be habitually resident. That answer was given by Mr Timms to my honourable friend Mr Rendell. I see that the Minister shakes her head. When two Ministers disagree, I venture to doubt. I hope that that is not improper.

I declare an interest in this case because many years ago it happened to be my own. I have therefore always felt particularly strongly about it. Because the legal concept is so uncertain and because there are so many minefields, what the Government have done will not be enough to keep them out of further legal trouble. I am glad that people who are clearly British, including the niece of a former Leader of the House who was caught by the test, will now be able to pass it. That is a very necessary mercy and I welcome it. On the other hand, this must increase the risk that what is done may discriminate between British and other European Union nationals and may therefore fall foul of the Treaty of Rome. There is also the risk that it might be held to discriminate on grounds of race, which is equally illegal in this country. In any case, if people have passed our immigration requirements, and if they actively seek work, do we really need another test? At present it saves the Government only £18 million. Is it really worth all the hardship, all the aggravation and all the legal confusion and danger which it causes? I beg to move.

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