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The provisions of Clause 91 require that whenever an application seeks authorisation for compulsory purchase, the examining authority must hold an oral hearing into compulsory acquisition, and any affected person would be entitled to make oral representations at that hearing. The provisions of Clause 92 require the examining authority to hold an open-floor hearing wherever an interested party notifies it by the deadline that it desires one. It is important to put on record that that is not discretionary. If an interested party wants an open-floor hearing and tells the commission that by the deadline, it will get an open-floor hearing. Finally, Clause 95 ensures that, should a party be prevented from making an oral representation for whatever reason, it can still make a written representation. In that process, all persons with an interest in the application have an opportunity to engage in the examination by giving evidence through either written or oral representations, provided that they have notified the examining authority of their interest within a deadline notified to them by the examining authority. In some cases, where this is permitted by the examining authority, they will also be able to call evidence. This is where we come to the amendments.

The noble Viscount’s amendments refer to the calling of other people—people not registered as interested parties—to give evidence. It would be fair to say that in most planning cases the calling of evidence normally refers to the calling of experts to give evidence. I am happy to set out how we expect that the calling of expert evidence and expert witnesses will be dealt with by the commission.

I begin by stressing that nothing in the Bill would prevent an “expert” registering himself or herself as an interested party to an application and then being able to give evidence in the normal course of the examination, through written representations or oral representations. They may also submit reports from experts who have been commissioned as part of their written representations. But it is worth saying that the whole process of examination at the application stage is predicated on the fact that, from the beginning of the process—the pre-pre-application process—we have built in a series of processes for interested parties to consult and agree with the examining authority how best to hear and test evidence. When a hearing takes place, Clause 93(3) provides that it is for the examining authority to decide how the hearing is to be conducted. That will include a decision about whether a person making representations should be permitted to call particular evidence from a third party. That means that the examining authority has discretion to allow expert witnesses to be called—much as in the current process the inspector has to agree to allow the calling of experts.



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What is the extent of the discretion? These sorts of powers are perfectly standard, not least because examining authorities need to have powers to organise hearings and refuse to allow the giving of irrelevant information. If we are to avoid the possibility of an examination being seriously disrupted, it is right that the examining authority should have the power to call a halt to any representations that are not seriously made or are calculated to obstruct. That is where we looked at Clause 94, which completes the package of necessary powers.

Let me be clear on the noble Viscount’s important point about what rights interested parties will have and how they can exercise them. First, we consider that it would be appropriate for the examining authority itself to be able to call expert witnesses to give evidence on specific points at hearings. The noble Viscount, who was unable to be in his place when we talked about the provision of counsel support to the IPC, would have welcomed on that occasion, as he has today, the strength and extra expert interrogative power that this will give to the examining authority.

It is also worth putting on the record—the noble Viscount already knows this—that Clause 99 provides that a person may be appointed as an assessor to the examining authority to assist in the probing of technical evidence. Therefore, we have bolstered the power of the IPC through the provision of additional legal support and technical evidence. In addition, the examining authority is also able to call expert witnesses when requested to do so by an interested party where the commission feels that it would help it to understand the issues, or so that an interested party has a fair chance to put its case. This is consistent with the fact that we want to get to decisions on applications in a manner that is timely and efficient and an improvement on the present process.

However, I stress that a decision by the examining authority about whether to call expert witnesses cannot be arbitrary or one-sided. Interested parties would be able to make representations to the commission about how the application should be examined at the preliminary meeting—Clause 87—including making the case on whether they will be adequately or fairly treated if expert witnesses are not called to give evidence. They will be able to make subsequent representations that exchanges of written evidence or oral evidence have not properly settled an issue. Therefore, interested parties will certainly have a right to call for expert witnesses if they feel that it would be significant to their case and would help them make their case.

The examining authority will have to take all relevant representations into account before it decides whether it is necessary for a witness to be called to give evidence at a hearing. If the commission unreasonably refuses to allow interested parties to call witnesses, this decision could, of course, be open to legal challenge.

Although I hope the noble Viscount will be reassured on that point, I understand that, given that the Bill cannot carry the weight of detail, it would be useful to have other reassurances on the record. Therefore, the procedural rules made pursuant to Clause 96 will set out in greater detail the general requirements on how examinations are to be conducted. These rules will be in a statutory instrument which is consulted on in the

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usual way and laid before the House before it takes effect. We envisage that these rules might provide, for example, a power for the examining authority to call witnesses where it considers that that is necessary for the adequate examination of an application or so that an interested party has a fair chance to put its case and to respond to requests from interested parties that it should do so. I hope that this also meets the noble Viscount’s concern in Amendment No. 90 to provide that it is for the examining authority to decide whether a witness may be questioned at a hearing by another person. The reference in Clause 93(4) to,

would cover circumstances where a witness is called to give evidence.

On questioning witnesses at hearings, it is worth mentioning again that under the proposed new clause set out in government Amendment No. 94 the chair to the commission may appoint a barrister, solicitor or advocate to provide legal advice and assistance to the examining authority. That, of course, includes the ability to conduct oral questioning at a hearing.

I have gone into this matter in detail because I was invited to put it on the record. I hope that that is helpful. I hope noble Lords will be assured that the provisions of the new clause will ensure that decisions of the commission on whether to allow the questioning of expert witnesses by another person will be based on legal advice of the highest quality. It will also ensure that where the commission decides not to allow questioning by another person, it will have the ability properly to probe the evidence itself. The noble Viscount has done the House a service in enabling me to put that on the record. I hope he will feel satisfied with the safeguards I have mentioned.

Baroness Hamwee: My Lords, will the Minister make a distinction between the procedural matters of allowing examination and the testing of evidence and dealing with vexatious people, which is in the Bill? She knows that I feel the weight of what is in the Bill and the lead that the commissioners will take from what is spelt out. There seems to me to be an imbalance in those two things.

Baroness Andrews: My Lords, I am thinking aloud—I think that is allowed at the Dispatch Box now and again—but the vexatious reference is probably included in the Bill because it is normally provided in statute. However, how one conducts the detail of examination is left to the instruments, which allow us to spell it out in detail. However, if I can find a better explanation, I shall provide it to the noble Baroness in writing.

Viscount Colville of Culross: My Lords, the House, and probably the public at large, will be greatly enlightened by what the noble Baroness has said. It certainly deserves to be carefully read. I do not think that anything like this has been spelt out before. Consequently, this must have been worth while. The only thing on which I urge her to reflect is that it is much more likely that these sorts of things can be properly thrashed out at a specific issue hearing than at an open-floor meeting, because the subject matter is of a nature that would make it not an open-floor meeting but a cleared-floor one almost immediately. These are very technical and

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difficult subjects which bore most people to death. Therefore, it is much better to deal with them under Clause 90 than at an open-floor hearing. I shall read what she said. If, as I believe—she nodded—this is the first time this matter has been spelt out, it will be of much more general interest than just to me and those who have taken part in this debate. I thank her very much for giving us the advantage of her explanation. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 93 [Hearings: general provisions]:

[Amendments Nos. 90 and 91 not moved.]

Baroness Hamwee moved Amendment No. 92:

92: Clause 93, page 48, line 35, leave out “, exceptionally,”

On Question, amendment agreed to.

Clause 96 [Procedure rules]:

[Amendment No. 93 not moved.]

Baroness Andrews moved Amendment No. 94:

94: After Clause 99, insert the following new Clause—

“Legal advice and assistance

(1) The person appointed to chair the Commission may, at the request of the Examining authority, appoint a barrister, solicitor or advocate to provide legal advice and assistance to the Examining authority in connection with its examination of the application.

(2) The assistance that may be given by a person appointed under subsection (1) includes carrying out on behalf of the Examining authority any oral questioning of a person making representations at a hearing.”

On Question, amendment agreed to.

[Amendment No. 95 not moved.]

Clause 100 [Interpretation of Chapter 4: “interested party” and other expressions]:

[Amendments Nos. 96 and 97 not moved.]

Baroness Andrews moved Amendments Nos. 98 and 99:

98: Clause 100, page 52, line 18, leave out second “or”

99: Clause 100, page 52, line 20, at end insert—

“(g) a National Park authority;

(h) the Broads authority.”

On Question, amendments agreed to.

[Amendment No. 100 not moved.]

Clause 101 [Cases where Secretary of State is, and meaning of, decision-maker]:

[Amendment No. 101 not moved.]

Clause 102 [Decisions of Panel and Council]:

[Amendment No. 102 not moved.]

Lord Patel of Bradford: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that Report begin again not before 8.29 pm.

Moved accordingly, and, on Question, Motion agreed to.



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Social Security (Miscellaneous Amendments) (No. 4) Regulations 2008

7.28 pm

Baroness Thomas of Winchester rose to move to resolve, That this House deplores the way that the Social Security (Miscellaneous Amendments) (No. 4) Regulations 2008, laid before the House on 15 September, cut the backdating period for pension credit, housing benefit and council tax benefit in most cases from 12 months to three months, and were:

(a) presented with inadequate evidence to support the policy; and

(b) laid during the Summer Recess to come into force on the day Parliament returned, thus not allowing Parliament to consider them before they came into effect; and

calls on Her Majesty’s Government to revoke the regulations because they are likely to increase the number of evictions, and cause particular hardship to older pensioners and those with mental health impairments (SI 2008/2424).

The noble Baroness said: My Lords, this Motion is couched in unusually fierce terms, but I believe that the criticisms of both the manner in which these regulations were laid and the policy they encapsulate are justified. I shall speak briefly about both the policy and the process. I am well aware of the time constraints of this dinner-hour debate, although I think I am right in saying that there is no formal time limit.

Among other things the regulations reduce the backdating rules for the payment of pension credit, housing benefit and council tax benefit from 12 months to three months, although the Government have now agreed for a short period to stage the reduction of the backdating period for working-age claimants to six months for housing and council tax benefits.

The Merits of Statutory Instruments Committee, of which I am proud to be a member, has issued its sternest warning—that the instrument may imperfectly achieve its policy objective. I shall come back to just what that policy objective is in a minute. The committee’s view was reinforced by the powerful report of the Social Security Advisory Committee, which recommended unequivocally that the change of policy should be abandoned, as it was in 2000.

The reason for the recommendation is clear. During its own very short consultation, in the shocking absence of a formal consultation by the department, the SSAC had an unprecedented number of responses from all over the country and from such well respected organisations as Citizens Advice, the Child Poverty Action Group, Crisis, Centrepoint, Age Concern, the RNIB and many others. They also included many local authorities from relatively affluent areas, such as that covered by Cambridge City Council, to the poorer areas covered by, for example, Bradford Metropolitan District Council, and scores of housing associations, which were all alarmed by the impact that the change would have on their clients. They all point to the weakness of the department’s evidence base for the change in policy, leading the SSAC to say:



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“We have concluded that the department has offered neither adequate evidence to support its case for change nor a convincing proposal for mitigation of the potential negative impacts of the change”.

The Government even admit that their own data in this field are inadequate. To an inquiry by the Child Poverty Action Group to the housing benefit strategy division, the answer was:

“You asked about figures. Prior to April 2007, no information was collected from local authorities on the number of claims for backdating or the amount of backdated benefit paid out to HB/CTB claimants. Following the introduction of a new data source, this information will become available in the future, but at the moment, there is insufficient data to be able to estimate the number of claims or the amount spent on backdating”.

No wonder the department did not want to risk a formal consultation with stakeholders, which should be the driver of policy, as the Merits Committee made clear. Even the department recognises that there may be impact on some customer groups, but it thinks that publicising the change of policy and encouraging take-up will be good enough to mitigate the change. So why are the Government hell-bent on changing the backdating rules, against the advice of all the groups that are, as it were, at the sharp end? The Government say that the change is needed as part of a wider simplification package to make the administration of the benefits less complex and better target resources. That is welcome in itself, but it is not relevant to most of the people who need the benefits.

Many of the respondents to the SSAC consultation suggested better ways of simplifying benefits. The chief executive of Homeless Link in London made a very good point when she said:

“The recent controversy over a ‘tidying up’ of the 10p tax rate shows how proposals which seem to be a neat simplification and to affect relatively low numbers can, when they hit low income groups, have a wider and unanticipated impact”.

Another curious reason given by the department is that it wants to reduce the intrusion into a claimant’s financial affairs. That simply does not hold water. If claimants were unhappy about such an intrusion, why would they claim in the first place when they know that it is part of the process?

I shall now look briefly at why these particular benefits are backdated at all, when other benefits cannot be backdated. The rationale for the 12-month backdating of pension credit was that it was a new benefit that was only brought in five years ago and was not widely known about. The Government believe that this is no longer the case. However, there are still many pensioners, possibly as many as four out of 10, living in poverty who are not claiming pension credit, in spite of government efforts to reach people who may have an entitlement. That is something the Government themselves have admitted. They also admit that the change in backdating rules could affect older claimants more and those with mental health problems or physical disabilities. In passing, it is worth pointing out that the Households Below Average Income report, which was published by the department on 10 June this year, points to an increase in pensioner poverty in 2006-07, most of the older pensioners, not surprisingly, being women.



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Citizens Advice says that it is often called in when pensioners are literally running out of savings for everyday living, and it says that the 12-month backdating can be a lifeline for such people. There are two other groups of pensioners whose circumstances mean they do not immediately engage with the benefits system when they could be eligible; those whose partner dies, with all the upheavals that brings, and those who suddenly find themselves looking after grandchildren, perhaps following a family break-up. In the last instance, unless the new backdating rules are abandoned, this will almost certainly lead to more child poverty.

I turn now to the perhaps more pressing effects of the change of policy on working-age claimants of housing benefit and council tax benefit. In 2006-07, citizens advice bureaux dealt with over 8,000 inquiries relating to housing benefit backdating and over 5,000 inquiries relating to council tax benefit backdating. Those benefits, by their very nature, are targeted on the most vulnerable, because of the requirement to show good cause before a claim is even considered; and ignorance of the system is not good cause. Many groups make the point that housing benefit is different from other means-tested benefits, because it is paid to meet a defined liability rather than day-to-day living expenses, and it therefore requires more flexible backdating provision. If the benefit is paid direct to the landlord in arrears, there is often a delay before the claimant knows that their benefit has ceased and that they have to take action to reclaim. Even if the client is found to be missing just the odd week or two of housing benefit several months before help is sought, that is enough to tip the client into arrears and possible eviction. Court proceedings for eviction are often the trigger for a client to seek advice. Is it really going to save the public purse if the most vulnerable are made homeless?

Those people have been easily identified as being those who, on the whole, lead chaotic lives and who may have mental health problems, learning or language difficulties, those who may be victims of domestic violence, those on remand in prison, those sectioned under mental health legislation and those who have been in hospital. Those made homeless through these tougher backdating rules will have to be rehoused, unless they are to end up on the streets; no wonder so many housing associations have expressed alarm. There is, of course, a special concern where children are involved, as they will be, with all the knock-on costs to education, health and children’s services that this will entail.

I shall now turn very briefly to the process by which these regulations came into force. They were tabled during the Summer Recess to come into force on the first day back, thus not allowing Parliament the chance to debate them before implementation. Yes, technically, it is within the rules, because praying time for negative instruments only starts when Parliament is in session, so in theory instruments can be voted down and the policy halted. But when the Government know that an instrument is particularly contentious, one cannot help feeling that they were trying to sneak it in under the radar. Tabling a controversial statutory instrument during a parliamentary recess to come into force on the day that Parliament returns makes a mockery of

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one of the main purposes of Parliament, and certainly of opposition parties, which is rigorous scrutiny of the Executive.

The Merits Committee report was extremely critical of the fact that the usual comprehensive impact assessment was not carried out so that we could all be convinced that the change in the backdating rules was a worthwhile exercise. In the end, the committee decided that none of the reasons that the Government seemed to be putting forward as the policy objective fitted in with one of the main aims of the Department for Work and Pensions, which is,


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