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Lord Craig of Radley: My Lords, I do not wish to prolong the matter now but it strikes me that the Armed Forces Pay Review Body's remit is one star and below and we are talking about pensions for all service personnel. Can I leave it that the noble Lord will write to me?
Lord Hodgson of Astley Abbotts: My Lords, before the Minister finishes, can he answer one question? If we have a joint consultative committee for the Civil Service pension scheme, why do we not have one for the Armed Forces pension scheme? Is that not what we are trying to create here?
Lord Bach: My Lords, I think that the answer to the noble Lord's probing question is that it is because we have the Armed Forces Pay Review Body, which has proved itself, as it were, in battle for many a year and there is no need to alter it.
Lord Astor of Hever: My Lords, I am grateful to my noble friend Lord Hodgson and the noble and gallant Lord, Lord Craig, for their support on this amendment. I also thank the Minister for his reply, which was very full and listed some very important points which I should like to consider. I should like to read Hansard very carefully before deciding what to do. In the mean time, I beg leave to withdraw the amendment.
"6CA COST OF APPEALS
(1) A party to an appeal under section 6A or 6C shall be entitled to be paid the costs of bringing or opposing such appeal.
(2) An application for costs payable to a person under this section shall be made in writing to the President of the Pension Appeal Tribunal within six weeks after the determination of the appeal or subsequent appeal, whichever is later.
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(3) In determining the amount of such costs, the President shall assess those on the basis that would be applied to an assessment of costs of High Court proceedings."
The noble Lord said: My Lords, in moving Amendment No. 12, I shall speak also to Amendment No. 13. This amendment is intended to protect the existing rights of a dozen or so individuals whose cases each year are the subject of appeals, on a point of law, from a decision of the Pension Appeal Tribunal. As matters presently stand, an individual is entitled to paid legal representation where leave to appeal has been granted by the president either to the individual or to the Secretary of State.
The Government have been concerned about access to justice. Indeed, their most recent White Paper entitled Transforming Public Services: Complaints, Redress and Tribunals is concerned with that very issue. The amendment ensures that access to justice is retained on an equal footing.
The White Paper contemplates that individuals will not require representation on appeals on points of law. However, the individual is entitled to a level playing field. At a recent tribunal hearingnot an appeal on a point of lawthe Secretary of State was represented by counsel instructed by the department's legal adviser, together with two senior representatives of the Veterans Agency. The claimant was represented by his father and a representative from the Royal British Legion.
In two other casesboth judicial reviewsthe ministry abandoned its case involving the party who was legally represented and pursued the judicial review against the party who had taken no active part in the proceedings and who had no representation. Those are not the actions of a Government who wish to safeguard and protect the interests of individuals who are entitled to proper legal representation.
The Government are concerned about proportionality. In 2002, there were 2,372 appeals to the Pension Appeal Tribunal. Approximately a dozen gave rise to further appeals on points of law. That does not incur disproportionate legal costs and the Government now propose to take away the very sensible basis that has prevailed for ensuring proper and fair representation.
The Government have not adopted the proposal contained in the Leggatt report that there should be a grant of funds to the RBL for the purpose of ensuring that advice and representation can be provided. Rather, the Government's intention is to take away an existing right and benefit in order to save money and to swing the existing balance of representation away from the individual. I beg to move.
Lord Redesdale: My Lords, I support Amendment No. 12, which is also in my name, because it goes back to some of the arguments that were raised on Amendment No. 1. A concern arises that, with the emphasis being on cost savings so that the benefits can be paid for, a certain stringent view on the amount of money that can be paid to claimantsmany of them
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justifiable claimantswill cause them not to be represented and therefore conceivably to have their cases dismissed. That will be unfair to many people who believe that the system will be working for them whereas in an adversarial system it appears that it may well be the case that there will be a different burden of proof with financial consequences if they fail to prove their case.
One issue that should not be forgotten at this point is that those who are trying to prove their case will have suffered some injuryphysical or mentaland therefore deserve all the protection that can be given to them, even if that comes at a residual cost.
Lord Bach: My Lords, I am grateful to the two noble Lords who have spoken in this debate. I propose to resist the amendment. The debate on whether Schedule 1 shall stand part of the Bill will touch on many of the issues. Therefore, as I understand it, it is part and parcel of the same debate and I shall reply, if I may, to Amendment No. 13 as well.
Perhaps I may deal with the two situations to which the amendment concerning the cost of appeals would apply. I shall deal, first, with appeals from the Pension Appeal Tribunal to the Social Security Commissioners. A party appealing a decision of the Pension Appeal Tribunal will now go to the Social Security Commissioners. I should first note that most appeals before the commissioners are dealt with on paper without an oral hearing. I shall have more to say about that in a minute.
When a hearing is required, the Office of the Social Security and Child Support Commissioners will provide for the costs of those attending a hearing, such as those relating to travel and accommodation. With regard to legal costs, the Legal Services Commission provides a range of services to help claimants to prepare an appeal to the commissioners, subject to means and merits tests. For example, the Legal Help Scheme can provide up to £500 worth of advice from a solicitor. Of course, various advice agencies, such as the National Association of Citizens Advice Bureaux, provide advice for free.
That leaves the question of costs for legal representation. Outside of exceptional circumstances, legal aid is not available for legal representation in a tribunal hearing. That is because tribunal hearings are very different from a court. They are intended to operate without legal counsel. That applies equally to the department, which would not generally expect to have legal representation.
The new tribunal system is intended to be accessible and user-friendly. It is intended that people can bring their cases before a tribunal without the delay, cost and formality of a court proceeding. Commissioners are well used to unrepresented appellants and run hearings accordingly by asking questions of the parties and any attendant experts. I remind the House that the process is inquisitorial and removes the need for counsela need which is clearly present in the High Court.
There will, of course, be some rare occasions where it will be appropriate to fund legal counsel for a tribunal hearing. If necessary, representation before
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the commissioners may be publicly funded through an application for a grant of exceptional funding. That can be granted where an applicant meets the standard means and merits test and the matter is of a significant wider public interest, has overwhelming importance to the client or where representation is needed to ensure a fair hearing.
The second part of the amendment concerns appeals from the commissioners to the higher courts. Appeals to the Court of Appeal in England and Wales and Northern Ireland or the Court of Session in Scotland will fall under their existing cost and legal aid regimes. Our legal aid system recognises that appeals to a court require legal representation. A person before a court may qualify for full legal aid, subject to means and merit testing. That enables legal representation for persons unable to fund it for themselves. Of course, noble Lords will know that courts have the power to award costs as they see fit.
As the existing system already provides for full legal aid and award of costs when appropriate, I do not recognise the need for any changes. In short, the Bill modernises the appeal process to make it faster, cheaper and, most important of all, more accessible for claimants. Our justice system already provides for the reasonable costs of claimants, and tribunals are intended to operate without legal representation.
In my notes on the Schedule 1 debate, I repeated much of what I have already said, but I should make a couple of points about tribunals. Having two levels of tribunals, as we intend, provides a quicker, more user-friendly and more cost-effective service to the parties involved in comparison with the court system. Tribunals have a number of strengths in the consideration of administrative disputes.
First, on participation and fundingfor example, in cases where a hearing is requiredconcerns have been expressed about "inequality of arms". I can assure noble Lords that the system is designed to avoid just that situation. It has to be remembered that the system is designed for lay and unrepresented appellants. The commissioners go out of their way to accommodate the parties and to explain the relevant matters of law.
In a hearing the presiding commissioners will investigate the issues, as I have said, in an inquisitorial manner, not relying on arguments of opposing counsel. The department would generally not expect to have legal representations at tribunal hearings. As I have said, there are rare occasions when it will be appropriate to fund legal counsel. If necessary, representation may be publicly funded through an application for a grant of exceptional funding.
Secondly, the tribunal system has special expertise. There is some misunderstanding about the Social Security Commissioners. They are extremely senior lawyers. The statutory qualification for their office is a 10-year general qualification or to be an advocate or a solicitor in Scotland of at least 10 years' standing. They offer considerable expertise in resolving appeals from the Pensions Appeal Tribunal. Many will have had previous experience in the Pensions Appeal Tribunal jurisdiction and it is they who will initially be
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assigned to hear appeals from the PAT. To distinguish such appeals, we shall call them the "Pensions Appeal Commissioners" when hearing appeals from the PAT. Of course, I want to make it clear that there are not many of them compared with other general matters of social security.
The third point, which I believe I have already covered, is that the strength of a tribunal system is its accessibility; it can be much more accessible than the courts. But we have changed the system so that there is an appeal, for the first time, on a point of law from the commissioner to the Court of Appeal and, if necessary and with leave, to the House of Lords in its judicial capacity. In short, we believe that what we are suggesting in terms of access to justice for claimants will be well met by the new system that is being adopted.
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