APPENDIX 8: CHILD MAINTENANCE AND OTHER
PAYMENTS BILL — GOVERNMENT RESPONSE
Letter to the Chairman from Lord Mackenzie of
Luton, Parliamentary Under-Secretary of State, Department for
Work and Pensions
1. I am grateful for the detailed consideration
the Committee has given to the Child Maintenance and Other Payments
Bill in your Third Report for the 2007-2008 Parliamentary Session.
I am pleased that the Committee is content with the overall approach
we have taken in the Bill.
2. With respect to the Committee's specific recommendations,
the Departments position is as follows. I will deal with each
of these recommendations in turn below.
Objectives and functions of the Commission - clauses
3(2) and 11(2)
3. In paragraphs 4 and 5 of the report, the Committee
draws attention to the fact that the objectives of the Commission
are made by reference to children who live apart from one or both
parents, and that there is a regulation making power which allows
the Secretary of State to set out when a child is to be considered
as living apart from a parent or not. The Committee raises a concern
that this power could widen the objectives of the Commission.
We do not consider this to be the case. The regulation making
power can only be used to set out the circumstances that constitute
"living apart" for the purposes of child maintenance.
It does not change the meaning of child or parent. The power to
define when a child is living apart from a parent is only there
because the stand-alone provisions in the Bill are not covered
by the provisions relating to shared care and special cases provisions
which currently set out the rules about when a child is or is
not living apart from a parent for the purposes of the Child Support
Act 1991. We anticipate that this power will be used to ensure
that the free-standing provisions in the Bill and the provisions
under the 1991 Act interact sensibly. The power to make provision
for special cases setting out where a child is or is not living
with a parent for the purposes of the statutory scheme is contained
in section 42 of the 1991 Act. For new scheme cases (and, by extension,
the amended statutory scheme under the Bill), this power is subject
to negative procedure. Given that it is likely that these powers
will be exercised together in future, the department considers
that negative procedure for the Bill provision is also appropriate.
4. The Committee also raises a concern over the
power to add to the Commission's functions as necessary for achieving
the objectives, which it considered to be a wide power in the
light of the view that the power to define living apart might
widen the scope of the objectives. As set out above, we do not
consider that this widens the scope. In addition, we would point
out that it is not uncommon to include such a provision. Recent
examples of legislation where functions may be added include:
- The Gangmasters Licensing Act
2004 contains a provision enabling the Secretary of State to confer
functions in regulations on the Gangmasters Licensing Authority
(see section 1(2)(f)). This is a wider provision as it is not
limited in any way (e.g. to objectives, etc) and is subject to
negative procedure.
- Section 116(2) of the Education and Inspections
Act 2006 allows the Secretary of State to assign further functions
to the Chief Inspector in connection with performance of functions.
This power is not subject to any form of parliamentary scrutiny.
5. None of these powers is subject to affirmative
procedure. We therefore consider that negative procedure is appropriate
here.
Fees - clause 6
6. In paragraph 6 of its report, the Committee
suggests that clause 6(2) of the Bill should be aligned with section
47(2) of the 1991 Child Support Act, to specify who may be liable
to pay any fees charged by the Commission. The Committee also
suggests that the Bill could contain an additional power, subject
to affirmative resolution, allowing further categories of people
to be added to the list of those liable to fees.
7. We have considered the Committee's suggestion
but would prefer not to make this amendment. Firstly, we do not
consider such an amendment to be necessary. All regulations which
set out details of a charging regime, including those under clause
6(2), are subject to affirmative resolution, so there is already
a requirement for Parliament to approve any legislation which
creates a category of persons liable to pay fees under clause
6 of the Bill. Secondly, it may lead to undue complication - for
example, the terms "non-resident parent" and "person
with care" are applicable where there is a current maintenance
calculation. If the Commission were imposing a charge in a case
where it was collecting a debt but there was no current assessment,
then different terms such as "liable person" would need
to be used.
8. The new provision is drawn more broadly than
Section 47 of the 1991 Act and is intentionally more flexible,
as it needs to provide for a wider range of circumstances and
achieve more objectives than the charging provision in the 1991
Act.
9. We do not expect fees to be introduced in
any form immediately, and believe that the Commission should be
allowed to take a key role in setting the details of a charging
regime, to help achieve its objectives. This includes specifying
who is liable to pay any fees. The details will be subject to
Ministerial agreement and Parliamentary approval. It is for this
reason that this level of detail has not been included in the
Bill.
Monitoring of curfew orders - clause 26 (new section
39O(4))
10. The Committee recommends, in paragraph 8
of its report, that the first exercise of the power in new section
39O(4) should be subject to the affirmative procedure. We accept
this recommendation. I will be tabling an amendment to change
the procedure from negative to affirmative in the first instance.
I regret that I am unable to include a draft of this amendment
with this letter.
Transfer of arrears - clause 32 (new section 49A)
11. In paragraph 9 of its report, the Committee
expresses concern that the person with care's consent to the sale
of the debt is not on the face of the Bill, and recommends that
a limitation by reference to such permission should appear on
the face of the Bill unless further justification is provided.
We are accepting this recommendation. I will table an amendment
placing the requirement that the parent with care's concern is
sought on the face of the Bill. I regret that I am unable to include
a draft of this amendment with this letter. It is intended that
the amendment will be tabled at Report Stage.
12. In paragraph 10, the Committee expresses
concern that the power in section 49A(4) (b) might be used to
prevent a debt purchaser from recovering the debt.
13. We believe that in certain circumstances,
the Commission should be able to prevent the collection of debt
by the purchaser. We believe that this could be necessary if in
the Commission's view the safety of the person with care or the
welfare of relevant child(ren) was put at risk by the actions
of the purchaser. This might occur, for example, where the purchaser's
efforts to recover the debt resulted in threats to the person
with care or child.
14. If a company were to purchase debt from the
Commission it would do so in the knowledge that the Commission
would be able to prevent that debt being recovered. We would expect
any contract for sale to make provision for that possibility.
15. The regulations made under this power will
provide protection for the person with care and the child, by
ensuring that the Commission retains some authority over transferred
debts.
Pilot schemes - clause 38
16. In paragraph 11 of its report, the Committee
recommended that affirmative procedure is appropriate for the
introduction of pilot schemes. We accept this recommendation.
I will table an amendment to provide for any regulations which,
by virtue of the new section 51A (to be inserted by clause 38),
have effect for a limited period to be subject to the affirmative
procedure. I regret that I am unable to include a draft of this
amendment with this letter.
Mesothelioma: lump sum payments: conditions of
entitlement - clause 44
17. In paragraph 12 of its report, the Committee
recommends that the regulations prescribing the conditions for
entitlement to a lump sum payment for mesothelioma in clause 44
be made subject to the affirmative procedure in the first instance.
We accept this recommendation. I will table an amendment changing
the regulation making procedure from negative to affirmative in
the first instance. I regret that I am unable to include a draft
of this amendment with this letter.
Conclusion
18. I trust that this letter has clarified the
intentions behind the provisions which the Committee has highlighted,
and that the Committee is reassured by the greater detail which
I can here provide.
19. It may interest the Committee to know that
we intend to table a number of other Government amendments at
Committee stage. I enclose a brief summary of these amendments
alongside this letter [Not printed]. I would also, of course,
be happy to discuss the amendments with the Committee.
20. I have provided copies of this letter to
Lord Skelmersdale, Lord Kirkwood of Kirkhope, and other peers
interested in the Bill, and am placing a copy in the Libraries
of both Houses.
January 2008
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