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Baroness Castle of Blackburn had given notice of her intention to move Amendment No. 133:


(" . In section 150(2) of the Social Security Administration Act 1992, in paragraph (a), after "beginning" there shall be inserted the words "and, in the case of the weekly rate of the basic pension specified in section 44(4) of the Contributions and Benefits Act and the category B retirement pension specified in Part I of Schedule 4 to that Act, by not less than the percentage by which the general level of earnings is greater at the end of the period than it was at the beginning".").

The noble Baroness said: I do not intend to move the amendment for the time being.

[Amendment No. 133 not moved.]

Clause 38 [Preservation of rights in respect of additional pensions]:

[Amendment No. 134 not moved.]

Lord Higgins moved Amendment No. 135:

    Page34, line 22, at end insert--

(""(4B) The regulations shall be based on the presumption that claimants have received incorrect or incomplete information unless the Secretary of State provides proof that the information the claimant received was correct and complete.").

The noble Lord said: This is a very important amendment which arises from so-called inherited SERPS. We had a Statement on this subject earlier this

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year. There are other amendments on the same subject in the names of the noble Lord, Lord Rix, and the noble Baroness, Lady Greengross. I concentrate on Amendment No. 135 in my name and those of my noble friends. The amendment provides that the regulations with regard to compensation for inherited SERPS,

    "shall be based on the presumption that claimants have received incorrect or incomplete information unless the Secretary of State provides proof that the information the claimant received was correct and complete".

When the Statement was made on 15th March, both the noble Lord, Lord Goodhart, and I had difficulty in ascertaining the precise recommendations of the ombudsman on this subject. We quoted paragraphs 32 and 41 of his report, which we understood to be his recommendation to the Government. Unfortunately, the ombudsman decided, strangely, to express his views by reference to a letter that he had written to the Permanent Secretary at the Department of Social Security rather than to recommend in terms that, given the situation, the Government should do this and that.

On that occasion I asked the Minister:

    "As there is confusion perhaps we could ask the ombudsman what he meant".

The noble Baroness replied, somewhat unhelpfully, I thought,

    "The noble Lord is entitled to ask the ombudsman whatever he wishes"".--[Official Report, 15/3/00; col. 1617.]

So I did, and received a courteous reply from the ombudsman.

I fear that it is still not clear in my mind what he recommends. He seems to feel that he should wait until he receives the detailed eligibility criteria under the scheme and he will then say whether they meet the views he expressed. I always hesitate to criticise officials who cannot answer back, but there again seems a degree of obscurity.

None the less, crucially, there are two points which anyone claiming that he should be compensated because of the sad history of widows' SERPS needs to establish: first, that he was misled; and, secondly, having been misled he took action, or failed to take action, which resulted in his being unable to make adequate provision for his widow at such time as she became bereaved. My amendment seeks to deal with the first of those propositions; namely, whether it is necessary for anyone claiming compensation to establish that he had been misled.

On that subject, the ombudsman's views are clear. He says:

    "In the course of my investigations I suggested to the Department that the onus of proof"--

as to whether one had been misled--

    "was therefore reversed. It was for the Department to prove that someone would have acted differently if they had not been misinformed. It seemed to me that the normal rules of the Department's non-statutory scheme for financial redress for maladministration would be inappropriate".

He continues in the letter:

    "The presumption had to be that anyone who could reasonably claim to be misled and in consequence to have acted, or failed to act, to their detriment had a prima facie case for redress".

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The situation seems clear. Either people did not read the leaflets, in which case they would have assumed that the entitlement to the widows' pension was unchanged. Alternatively, they read the leaflets, in which case they were misled. Therefore we should not go along the route we discussed last year when debating the matter. We should not ask: did an individual telephone the department on a specific date? What did the department say? Alternatively, did he write to the department and receive the wrong answer? Was he merely having a discussion at the local social security office? For the reason I have stated, that should not be required of someone making a claim for compensation. I hope that that is common ground. While we shall not reach a final decision today, I hope that at later stages the Minister will accept that position, or accept my amendment today.

The letter continues:

    "The Secretary of State for Social Security has said that he accepts that where there is no documentary evidence it will be for the Department to challenge or disprove a claim".

That is to say, a claim that the individual was misled. Perhaps the Minister will confirm that that is so. If so, I imagine that she will be able to accept my amendment.

The second leg of the argument is whether an individual can claim that, as a result of having been misled, he took action which resulted in detriment to him; or did not take action in particular to make provision for a widow's pension. The amendments in the name of the noble Lord, Lord Rix, and the noble Baroness, Lady Greengross, refer to aspects of that problem.

My impression is that the ombudsman also takes the view that, so far as that is concerned, it is for the department to prove that the individual concerned took some action which protected the position of his widow. I am not entirely clear about that. I shall listen with interest to what the Minister says at this stage in the proceedings. However, so far as concerns the first point, it seems to me that my amendment is very important. I hope that, even at this stage, the Minister can accept it. However, no doubt we shall not reach the final conclusion this evening and shall have to see how we proceed at later stages.

This is a long and sorry tale. It is maladministration on a totally unprecedented scale and, as a House, we need to put the matter right. I am bound to say that the Government have not been unforthcoming on this matter. None the less, it seems to me that the details need to be spelt out in primary legislation. That is why my amendment is worded in the way that it is. I do not believe that it would be satisfactory to leave the matter to regulations at a later stage. That may have been appropriate earlier. However, I believe that by Report stage or, at any rate, Third Reading, we need to be absolutely clear about exactly what the Government propose and, if necessary, vote to establish the right position. I beg to move.

10.30 p.m.

Lord Rix: At the Second Reading of this Bill, I said that I would be putting forward a simple amendment

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to address the ambiguities inherent in Clause 38 as at present it appears on the face of the Bill. Other Members of the Committee have had the same notion and we are now presented with three further options for change and, may I say, improvement. Therefore, I hope that the eventual outcome will be something better than the Government's proposals, welcome though those proposals are.

The amendment of the noble Lord, Lord Higgins, which he explained so clearly to the Committee, reverses the burden of proof as regards information received, although not as regards action taken. It requires the Secretary of State to show that his department provided the kind of information which, we know, in general it failed to provide. My noble friend Lady Greengross, whose amendment follows mine, takes certain key categories of likely sufferers from duff information, or no information at all, and protects their survivors without any requirement to claim under the compensation scheme. In other respects, her amendment and mine are very much alike. That reflects a unanimity of purpose, if not of belief, as to how far the Government may be persuaded to go.

According to this morning's edition of The Times--we have already heard this article quoted by the noble Earl, Lord Russell--the former deputy Labour leader of Plymouth Council, David Millar, blamed his loss of office as a result of the recent local elections by saying:

    "If there was one single issue which did us more harm than any other it was pensions".

As we all know, SERPS is described as an "additional pension", and any confused, retired pensioners who are worried about their surviving spouse's inherited benefits must surely be included among those absentee voters. My amendment both helps the Government out of that particular hole (dug, I may say, by an earlier administration) and operates within the compass of the Government's compensation scheme. However, it reverses the burden of proof--and here it differs from the amendment of the noble Lord, Lord Higgins--for those most likely to have suffered irremediable disadvantage.

I am seeking to write on the face of the Bill necessary concessions which the Government might be minded to put into regulations under the broad and non-specific powers of Clause 38(5). The history of the amputation of SERPS rights is such that I make no apology for opting for a little more certainty and a little less trust. We all remember Virgil's stricture about,

    "fearing the Greeks even when they bring gifts",

or Juvenal's question:

    "Who is to guard the guards themselves?".

Such classic doubts could be put to rest by the adoption of my amendment, which is supported also by the noble Lord, Lord Goodhart, and my noble friend Lady Greengross, for I believe that it encompasses reasonable simplicity and relative justice.

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An injustice having been done, and, to their great credit, recognised by this Government, that injustice needs to be remedied. I believe that my amendment has the virtue of providing that those who have most palpably suffered injustice do not have to stretch their memories, and perhaps their imaginations, in order to reclaim justice.

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