Draft National Health Service (NHS Payment Scheme - Consultation) (No. 2) Regulations 2022
(1 year, 4 months ago)
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The Minister of State, Department of Health and Social Care (Will Quince)
I beg to move,
That the Committee has considered the draft National Health Service (NHS Payment Scheme—Consultation) (No. 2) Regulations.
It is a great pleasure to serve under your chairmanship this afternoon, Sir Graham. Last year, the Government set out their ambitious health and care agenda through the Health and Care Act 2022, which established systems and structures to reform how health and adult social care work together. By introducing integrated care systems on a legislative basis, there was an opportunity to review and therefore tailor an integrated approach to how the financial frameworks in the NHS worked.
The Act replaces the NHS national tariff payment system with the NHS payment scheme by inserting new sections 114A to 114F into the Health and Social Care Act 2012. As with the tariff, the NHS payment scheme will set rules around how commissioners establish the amounts to pay providers for healthcare services for the NHS, but it will allow NHS England to have a more flexible approach in setting the rules. It does not set the amount of money available, but it intends to ensure that the resources available are used effectively and efficiently.
Before a new payment scheme can be published, NHS England has a duty under the 2012 Act to consult on the proposals for the new scheme. The consultation was as much a requirement with the tariff as it is with the new scheme. NHS England is required to consult each integrated care board, each relevant provider and other such persons it considers appropriate. It opened the consultation on the proposals for the 2023 to 2025 payment scheme on 23 December last year, and the consultation is scheduled to close on Friday 27 January. That brings me on to the purpose of these regulations, which is relevant to how those consulted respond and what it means for NHS England.
The regulations will set the required objection percentage thresholds for responses to the consultation at 66%, which will be reached if the requisite percentage of ICBs or providers object to the proposals. Laying these regulations is a relatively administrative process. The objection percentages are not changing compared with the previous consultations on the tariffs, so we are maintaining the status quo at 66%, which is a proportionate level to ensure that a qualified majority can require NHS England to reconsider its proposals, while minor objections will not stop it. I commend the regulations to the Committee.
Feryal Clark (Enfield North) (Lab)
It is a pleasure to serve under your chairmanship, Sir Graham. Ensuring that patients get the best quality care is in the interests of everyone, and the Labour party will always support measures that seek to achieve that. Although we have some reservations, we will not oppose the regulations today.
The proposed consultation is important because the NHS payment scheme will govern how billions of pounds of taxpayer money is spent. Quality of care and value for money should always be at the core of our health service’s decision making. They are not alternative options or binary choices. They are both critical to the future of our NHS, so we need financial management in the health service to be able to deliver both in parallel. Given the urgency of the crisis affecting the NHS, action to deliver that must come at pace. We have seen during the pandemic what happens when the NHS strays from those principles, and we cannot allow such events to happen again.
The former tariff system, which the regulations form part of replacing, sought to deliver a more competitive environment to drive up quality and improve outcomes for patients, yet too often it was a rigid system that did not allow for the flexibility that individual commissioners needed. Giving local decision makers the tools that they need to improve services in their areas is vital to ensuring that the NHS meets the needs of patients where they are, not where the system thinks they should be.
It is because of that that a rigorous and effective consultation on changes is so important. Done properly, payment schemes can deliver a meaningful impact on patient outcomes. The payment-by-results incentives used by the last Labour Government made a significant impact on elective waiting lists. However, they are not appropriate in every case, and options must be carefully considered. Hon. Members will know that elective waiting lists are now at record levels. Given the reports of Ministers wanting to bring back the payment-by-results incentives in some form, I would be keen to hear from this Minister what plans they have to do that.
Getting these changes right through effective consultation is in the interests of everyone and, crucially, will ensure better outcomes for patients. I look forward to hearing from the Minister how the Government intend to deliver that.
Karin Smyth (Bristol South) (Lab)
It is a pleasure to serve under you, Sir Graham. I am always concerned when a Minister brings forward something that is seen as an administrative process; indeed, we should all be concerned when that happens.
As my hon. Friend the Member for Enfield North said, this matter is very important. I have a couple of questions. As my Front-Bench colleague said, PBR was introduced as part of a quality drive to incentivise the system—to make the system operate in certain ways. I served on the Committee that considered the Health and Care Bill as it progressed through this place last year. I asked the then Minister, the right hon. Member for Charnwood (Edward Argar), several times what system would replace PBR to incentivise the operators in the systems, or the trusts and so on, but no answer came forward. It would be helpful to hear from this Minister, in his wrapping up on the admin process as part of the consultation—we know that was launched on 23 December, at the same time as planning guidance for the NHS, not giving the NHS managers, and so on, much time for a Christmas break—what the Government are thinking in terms of a system that will still incentivise quality of service and efficiency of taxpayers’ money. So far, we do not know what that will be.
PBR ignored the operation, particularly, of community mental health services and primary care—it never operated for those. Not many mental health services, in particular, asked to be inside the tariff, in order to maximise their own income. Therefore, what in the system will support community, primary and mental health services to drive up quality and ensure that we have efficient use of money?
On the 66% threshold for consultation—I would recommend that figure for many referendums and consultations—will the Minister provide clarity about this point? If, for example, in my area of Bristol, North Somerset and South Gloucestershire, the providers disagreed with the proposals, but the ICB decided otherwise, would the providers make up the 66% differently from the ICBs? That was not clear in the Minister’s comments. Trusts and trust chief executives, particularly, should be free to make a judgment on what works best for them. However, the drive of the 2022 Act—which I support—is about making the whole system use its money more efficiently, and that is where the Government now are, so can trusts in local ICB areas disagree with the recommendations of the ICBs? How is the 66% being calculated?
Will Quince
I thank the hon. Member for Enfield North for her constructive comments and broad support. Several of the issues raised did not actually relate specifically to this debate. We are of course here to discuss the objection percentages. I am conscious that she would like to push further on items including payment by results, but I will just say—not wanting to test your patience, Sir Graham, given the strict parameters of this statutory instrument—that I would be very happy to write to her. Alternatively, there are health oral questions coming up. I stress that if there are proposals that relevant commissioners disagree with, I encourage them to make representations as part of the consultation, which is open until 27 January.
Let me turn specifically to why I believe the 66% is proportionate—I covered that in my opening speech. The 66% is made up of either integrated care boards or providers, and I will happily write to the hon. Member for Bristol South on that. I think the point that she was making was whether there is weighting towards an ICB versus a provider. Is that right?
Karin Smyth
To be clear, the two or three trusts in my patch could all object, but the ICB could support this. Do the trusts have to come within the totality, or will the trusts be counted separately, without getting too mathematical about it? Every trust in the country could oppose this, but the 44 ICBs could support it, for example, in extremis.
Will Quince
I thank the hon. Lady for clearing that up. I think the answer to the question is that if an integrated care board or a provider hits the 66%, that threshold is triggered.
Perhaps it would be helpful if I set out what would happen if the threshold is triggered. Unlike the previous scheme, where the Competition and Markets Authority would be involved, under the new proposals, if the objection threshold is reached, NHS England must discuss the objections with representatives of all organisations that objected. It is in the interests of both them and NHS England to reach a conclusion that is workable for both.
Following the discussion, NHS England must decide whether to amend the proposed payment scheme and reconsult on the amended payment scheme, or to proceed with the scheme, as published, that was consulted on. If it decides to proceed with publication, it must also publish a notice explaining its reasons for doing so and send a copy explaining with the notice to all organisations that objected and therefore met the threshold.
I thank Committee members for their contributions to today’s debate, and I would be very happy to write to or meet any hon. Member who has further questions. I genuinely believe that the objection percentages that we have discussed strike the right balance in allowing real collaboration between NHS England and those that it is consulting on. I commend the regulations to the Committee.
Question put and agreed to.
Energy Bill Relief Scheme Pass-through Requirement (Heat Suppliers) (Amendment) Regulations 2022
(1 year, 4 months ago)
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The Minister for Energy and Climate (Graham Stuart)
I beg to move,
That the Committee has considered the Energy Bill Relief Scheme Pass-through Requirement (Heat Suppliers) (Amendment) Regulations 2022 (S.I. 2022, No. 1280).
It is a pleasure to serve under your chairmanship, Dame Caroline. The regulations were laid before the House on 6 December 2022.
We have already passed legislation concerning the energy bill relief scheme pass-through requirement for heat suppliers, which ensures that benefits from the scheme, known as the EBRS, are passed through to end consumers on heat networks. That legislation also provides for a route to resolve disputes between consumers and heat networks on the pass-through requirement. I say that by way of introduction while wishing all Committee members a happy new year.
I hope that Members will applaud the statutory instrument, which amends the existing pass-through regulations, introducing a requirement on heat suppliers to send a simple notification to provide information to the Secretary of State by 6 January 2023—a date that has now passed. That information, which includes the heat supplier’s name, business address and contact details, will be shared with the energy ombudsman and the Consumer Council for Northern Ireland to support their handling of domestic and microbusiness consumer complaints.
The information will also be shared with the Office for Product Safety and Standards for enforcement purposes. The SI strengthens the OPSS’s enforcement powers, enabling it to request information from suspected heat suppliers to determine whether they fall within the scope of the regulations. The OPSS may impose existing civil sanctions, including a monetary penalty, on heat suppliers that fail to comply with requirements to notify, to join the redress scheme or to provide information. The monetary penalty has been modified, providing for a maximum penalty of £5,000 to provide an effective deterrent to non-compliance.
Kevin Brennan (Cardiff West) (Lab)
Suppliers were required to notify by 6 January 2023 but, as the Minister pointed out, it is now 9 January 2023 and we are being asked to approve the SI today. What will be the status of a supplier that failed to notify by 6 January but does so before the instrument is approved by the House?
Graham Stuart
As I said, the instrument was laid before the House back in December. I cannot provide the Committee with an update at this precise moment, but I know that the information has been flowing in. If, through some wondrous form of refreshment, I am able to give the hon. Member further information about the precise legal status and the fines and so on, I will of course do so.
The SI also amends the existing regulations to reduce the administrative burden on heat network companies. It removes the requirement for heat suppliers to provide information about the calculation of the benefit when they first notify end users about the scheme, while retaining the requirement to provide those calculations in the next bill.
The EBRS, and the corresponding pass-through regulations, have been introduced as a critical component of support for consumers on heat networks, and the scheme complements other support that the Government are providing with energy and the cost of living. We expect that the notification requirements will facilitate the consumer complaints handling process and that strengthened enforcement powers will result in more heat suppliers passing on the EBRS discount to their customers, which is of course our aim. I commend the regulations to the Committee.
Dr Alan Whitehead (Southampton, Test) (Lab)
It is a pleasure to serve under your chairmanship, Dame Caroline. What the Minister says sounds convincing if we take it just in the context of what is in front of us this afternoon. However, it is a little less convincing in the context of what the Minister himself said about the legislation that passed just a little while ago—SI No. 1101—and the whole basis for the pass-through scheme, as far as heat suppliers are concerned.
We should perhaps remind ourselves that the purpose of that legislation was to ensure that, where heat suppliers were in a position to receive support from the energy bill support scheme, and the customers of those energy suppliers, be they district heating networks or whatever, were not directly responsible or able to access the money coming from Government via bill support schemes in general, the pass-through schemes would ensure that the equivalent of what they would have got had they been regarded as wholly domestic customers under the bill reduction scheme would come to them. Indeed the explanatory notes to SI No. 1101 make it clear that the purpose of that regulation was to ensure that there was equivalence between domestic customers receiving the money, whether straightforward bill payers, through their meters, or those people who were immediate receivers of the money coming from Government to support energy costs—in this instance by money though the energy support scheme to energy suppliers.
That was all laid before the House, I think at the end of October, and indeed came into force less than 21 days after it was laid before Parliament, because, as the explanatory memorandum of that SI said, it was
“laid before Parliament less than 21 days before coming into force due to the urgency of ensuring that support for heat network consumers is available this winter through the pass-through of the Energy Bill Relief Scheme.”
That is a very important sentiment, and, indeed, when we discussed it in the House at the time, we accepted that there was a need for that urgency.
Now, we have a further SI, an amendment to the first SI, which we were told, at the time, was urgent to ensuring that network consumers get their money. It is before us, having been laid before Parliament on 5 December and implemented on 7 December, and, as the explanatory memorandum for this SI says, it is
“being laid before Parliament less than 21 days before coming into force due to the urgency of ensuring that support for heat network consumers is available this winter through the pass-through of the Energy Bill Relief Scheme.”
The wording is identical to that of the previous SI.
What appears to have happened, as far as this SI is concerned—and why it is also urgent—is that the Minister’s Department apparently forgot, when putting the original regulations through, that, actually, there is no complete register of heat suppliers in place that would enable the original legislation to be carried out properly. That is actually rather remarkable, because the Energy Bill, which the Minister and I were talking about briefly just before our proceedings started this afternoon, has a whole passage about the regulation of the sector, noting that it is not regulated very well at the moment. Indeed, the explanatory memorandum on this SI—and on SI No. 1101—indicates that it is recognised that the sector
“is not…comprehensively regulated and there exists no complete record”.
Yet the original legislation went through without a word about why the Department did not know who the energy suppliers were and the fact that that made the whole legislation pretty redundant and very difficult to implement. What we have in front of us now is a very rapid and, shall we say, somewhat scrabbled arrangement to try to rectify that original problem, which, as I said, appears to exist because the Department forgot that a rather central part of the method of actually getting money to customers was heat suppliers, who should be known to the Department in order to make them pass the money through.
We heard the Minister mention in his opening comments the Office for Product Safety and Standards—I am not sure whether that office is familiar to other hon. Members; it is not particularly familiar to me. It was apparently going about its business in a reasonably innocent way and has suddenly been told that it now has to keep a database of notifications and it has to administer potential monetary penalties of £5,000 for failure to comply. According to a quite extraordinary note in the explanatory memorandum on this SI, the OPSS, which did not know about this before,
“will also have power to request information from a person they suspect to be a heat supplier before imposing a compliance notice on them or accepting an enforcement undertaking from them.”
We now have to go around requiring the OPSS to sus out suspected heat suppliers and find out whether they really are heat suppliers and, if they are heat suppliers, whether they should comply with the arrangements that are in the legislation already; there are welcome penalties for not complying.
Perhaps I can put it to the Minister that this is all rather rushed, bodged and very last-minute for a scheme that should have been up and running and operating properly as quickly as possible, as the explanatory memorandums on both SIs say, in order to get the money to customers over the winter period and as early as possible. My question to the Minister—not that the Opposition will stand in the way of the legislation this afternoon—is: how has this happened? How has it happened that this sudden and bodged SI has come forward this afternoon to make good something that should have been in the legislation in the first place, so that the scheme operated as well as it could from the beginning? How much time has been lost—in terms of getting money to customers—as a result of this scheme being incomplete in the way it was?
I have another question for the Minister. As time goes by, we are getting closer and closer to the point at which the energy bill support scheme will cease to operate. By the end of March this year, there will not be an energy bill support scheme for industry in the way there will continue to be one for domestic customers. Yet it is the purpose of this SI to get to the equivalent of those, to what are effectively domestic customers, through heat networks for example, the full benefit of support that should come their way as domestic customers. We may have some elucidation this afternoon—in the fairly immediately forthcoming statement in the Chamber, which I will rush down and try to listen to—of whether there will be support after 31 March through the EPS scheme. If there is, will it be the same as the support that there is at the moment? If it is not, will we have to have further legislation in place to try to pass something that will be quite different to what there is at the moment?
Let us not forget that we are essentially talking about the imperative of getting those domestic customers the full amount of the bill support that is due to them because of the circumstance that they are in. They are domestic customers but, because of the arrangements with their heat supply, they do not appear to be so in terms of how the legislation works. Will those domestic customers have to be re-legislated for, as it were, after 31 March if the EBS scheme changes in the meantime? We have already lost a lot of time, for the reasons I have outlined, in getting that support through to customers. Will we end up having a very short window of support that will then be dashed away from customers after 31 March?
I would be grateful if the Minister could elucidate that, but I suspect that we may have to hear the statement this afternoon to find out what will be in place and how it impacts on the legislation in front of us. Those are two quite important questions, but there is certainly no wish on this side of the Committee to impede the progress of the legislation.
Kevin Brennan
I have three quick points to put to the Minister. I know he is extremely assiduous in preparing for these statutory instruments and knows his brief well.
First, the impact assessment refers to the fact that the Department does not intend to consolidate the relevant legislation at this time. Will the Minister clarify why that is the case? It might make sense—particularly given what my hon. Friend has just elucidated—to try to tidy all this up into one piece of consolidated legislation. What is the reason for not doing it that way?
Secondly, the explanatory memorandum refers to the fact that
“The Department for Business, Energy and Industrial Strategy is updating guidance to explain these Regulations in further detail, which will be published shortly after the instrument is laid.”
As the Minister said, the instrument was laid before Parliament on 6 December. Will he tell the Committee if that guidance has been prepared, published and made available to the businesses and consumers who are affected by the statutory instrument?
My third point refers to my earlier intervention on the Minister, which I wonder if he can clarify. On these occasions, I am always interested in whether what we are doing not only has an impact, but could have an impact. As the Minister and I have said, the statutory instrument was made on 5 December; the Government laid it before Parliament on 6 December, and it came into force on 7 December without the consideration of this Committee.
Small businesses, referred to in the Minister’s speech and in the explanatory memorandum to the statutory instrument, are affected. They could be subject to £5,000 fines if they are not in compliance with the instrument. Am I right in saying that even if Committee were to reject this instrument, it would make absolutely no difference to the fact that it has already come into force? Our proceedings this afternoon are one of these parliamentary pantomimes we go through, where hon. Members have no influence because, even if we vote to reject a statutory instrument, the Government have already used their Executive powers to bring it into force—in this case, on 7 December.
That is not a technical point. My question is: could small businesses end up being fined £5,000 for not complying with the deadline of 6 January for making the necessary notifications under this statutory instrument, even though it was not scrutinised in Committee until today, 9 January? What is the answer to that question? Does it make no difference, however we vote? And even though the Government say the instrument is light-touch regulation for the very reason that small businesses are affected, could some small businesses in our constituencies end up being fined £5,000 under an SI that MPs did not even properly scrutinise until after the deadline with which they have to comply has come into force?
Alan Brown (Kilmarnock and Loudoun) (SNP)
The good news is that it seems the Government are trying to get support to those who are supposed to get it, which must be welcomed. The bad news is that policy is clearly being made on the hoof, so can we expect further SIs, or have we seen all the instruments associated with the energy bill relief scheme? It is indicative of the summer lost to the Tory leadership campaign, when Government was put on pause, followed by the Government going into meltdown after the new Prime Minister came in and the effects of that causing further problems.
As the hon. Member for Cardiff West pointed out, paragraph 2.1 of the explanatory memorandum gives the deadline date as 6 January. What is the legal standing of that deadline? Is the clock ticking for companies that have not reported being deemed non-compliant? If so, what sort of grace period will they be given? How long will they have before compliance notices are issued? Once a notice has been issued, how long will companies be given to comply before a fine may be imposed?
How many suppliers do the Government think are in operation? The Minister spoke about getting a refreshed answer, as it were. Is he now able to tell us how many have reported yet and how many are expected to report overall?
How is all this going to be squared up? Who is assessing the suppliers who have reported to make sure that they have accurately gauged the number of people who are due the support and passed it through? They could make a report in good faith but still get it wrong, or people might not get the support passed on to them that should be.
In the wider energy bill support scheme, there is a known issue involving people with prepayment meters either not getting the vouchers or not cashing them. What are the Government doing about that?
In Northern Ireland people are automatically getting a payment of £600—£400 payment support plus £200 alternative fuel payment. Why are other non-domestic customers having to apply to get those payments? Why is it done automatically in Northern Ireland? The Minister is looking a bit confused, but I hope he will be able to answer my question.
Graham Stuart
I thank the hon. Member for Southampton, Test for his typically informed but, I have to say, somewhat over-lengthy way of asking why we made a mistake. Rarely have I heard that question stated at such length. The point is that we did not get it right first time, and we have moved at pace across the whole complex world of energy systems to ensure that we look after people this winter. The challenge for me and the Department was to make sure that we moved at speed and to balance getting it right with moving at pace. Given two years, we could have had a perfect scheme, but we did not have that option. We had to look to get the right balance while moving at pace to deliver for people.
The hon. Gentleman asked what delay there was. As has been said, the regulations were laid on 6 December and came into force on 7 December; I do not think that there has been any delay. Heat networks have been providing us with information and we have been getting on with it. That is what we seek to do. The regulations came into force the day after they were laid, and the fact that the debate on them is today—to respond to the question put by the hon. Member for Cardiff West—has no bearing on the legal situation. The Committee means that, under the affirmative procedure, the SI does not fall, as he knows from his many years in Parliament. The law has been clear since then, and I am glad that Members in all parts of the Committee support it.
Suppliers that have not notified will be in breach of the regulations. Notified or not, all suppliers must enact the pass-through. If they do not, their customers may approach the ombudsman in Great Britain or the Consumer Council in Northern Ireland, which will confirm whether they are a heat supplier via the OPSS and then take action against them to ensure pass-through.
Consolidation was raised. That is where we have one set of regulations that revoke all the old ones, instead of a string of amending regulations. It is rare to consolidate after one set of amendments, but we can consider that for future rounds.
On the delay in making the SI, we engaged with suppliers, councils and others to ensure that it was workable. Again, there is always that balance between moving at speed to provide the support this winter and getting the legalities and practicalities right.
Graham Stuart
Really? Does the hon. Gentleman want to intervene after speaking for so long?
Dr Whitehead
Briefly, I just want to emphasise something that the Minister does not seem to have taken on board. He said that a mistake was made, but it was such a basic and egregious mistake—to pass a piece of legislation without knowing who is being legislated for—that some questions ought to be asked. Was it simply the speed at which things were done, or was there a fundamental misunderstanding of how the scheme would work?
Graham Stuart
I think the hon. Gentleman knows that he utterly mischaracterises the regulations. We legislate all the time for every kind of group in business and society without a database of who they are. We have simply come forward with supplementary regulation, which we are agreeing to today, the better to ensure that the consumer groups that I would have thought he supports enthusiastically are empowered and given the information they need to protect consumers. It is not some egregious error; this is a positive addition. The law applies to those that run heat networks, regardless of whether we know who they are and have their address. As it happens, in order to make it more practicable and quicker to intervene, we are discussing the regulations we have laid. They are supplementary to what was sound legislation in order to deliver a sound policy. Because I know he is an honest man, I think that the hon. Gentleman, on reflection—were he to do that this evening—might think that he somewhat mischaracterised the regulations.
As to what will happen after 31 March, we will make arrangements after His Majesty’s Treasury announces its review of the EBRS for what goes on after that date. Also, for the betterment of the information available to the Committee, on the question whether microbusinesses will be fined £5,000 if they do not notify, that maximum monetary penalty will apply only if a heat supplier fails to comply with a compliance notice or enforcement undertaking relating to failure to comply with the notification requirement. I hope that provides the hon. Member for Cardiff West with reassurance that there is not some automatic imposition of a £5,000 fine on a particular micro-supplier.
Kevin Brennan
That is useful clarification. Clearly, to be fined such a sum for a simple oversight under very new and rapidly introduced legislation would be a big burden on a very small business. If I missed this, I apologise, but did the Minister say whether the updated guidance referred to in the regulations has now been published and made available to businesses?
Graham Stuart
I am delighted to confirm that the guidance has been published. The hon. Gentleman will be reassured by that.
Alan Brown
What is the anticipated timeframe for the compliance notices to be issued? How long will companies be given to comply with the notice before the risk of a fine actually being imposed on them?
Graham Stuart
I am not aware of the precise timings, but as I say, I hope that the Committee will be assured that a process will be gone through. I am pleased that heat networks have been providing the information. Before we laid the regulations, we reached out and had a meeting with 200 heat networks. We reached out through various organisations to ensure that that was as well known as possible.
Alan Brown
So that we get exact information, will the Minister at least write to the Committee to advise us what the timeframes will be, what the process is for issuing compliance notices, and what the timescales are for complying?
Graham Stuart
Whether they are absolutely set or an administrative choice in part, I do not know. If we have further information that it is useful to share with the Committee, I will certainly do so.
The hon. Gentleman also raised the issue of Northern Ireland versus Great Britain. The energy markets in GB are very different from those in Northern Ireland. We have had to design bespoke measures at pace for each. Northern Ireland is a diverse market with a higher percentage of customers on alternative fuels. Other factors mean that it is most efficient to do things in that way there. I am pleased to reassure him, however, that most of those who are eligible for the alternative fuel payment in Scotland, for example, will receive it automatically, though some will necessarily need to apply. We have a system of automatic payment to some, but in addition others need a portal application with phone support.
With that, I hope that we have done more than adequate justice to this fairly simple set of legislative changes to ensure that we have the information needed in the right hands so that we make sure people are protected.
Question put and agreed to.
Resolved,
That the Committee has considered the Energy Bill Relief Scheme Pass-through Requirement (Heat Suppliers) (Amendment) Regulations 2022 (S.I., 2022, No. 1280).
Draft Pensions Appeal Tribunals (Late Appeal) (Amendment) Regulations 2022
(1 year, 4 months ago)
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The Minister for Defence People, Veterans and Service Families (Dr Andrew Murrison)
I beg to move,
That the Committee has considered the draft Pensions Appeal Tribunals (Late Appeal) (Amendment) Regulations 2022.
May I say what a pleasure it is to serve under your chairmanship, Ms Nokes? I declare an interest as a current reservist and a past beneficiary of the war pensions scheme.
The statutory instrument will change the rules allowing late appeals against decisions under the various armed forces compensation schemes in Scotland and Northern Ireland. The purpose of these changes is to align the rules for Scotland and Northern Ireland with the current rules in England and Wales. It is worth emphasising that that alignment, although it is the right thing to do, will in practice materially affect only a very small number of appellants.
The schemes provide compensation where persons have sustained illness, injury or death wholly or partly as a result of service in the regular or reserve armed forces. Claims made under the rules of the various schemes are decided by the Secretary of State for Defence, and claimants who do not agree with the decision have a right of appeal against most substantive decisions.
Before 2008, all such appeals were made to pensions appeal tribunals, which operated across the United Kingdom under the provisions of the Pensions Appeal Tribunals Act 1943. Following the 2008 courts and tribunal reforms in England and Wales, a war pensions and armed forces compensation chamber of the first-tier tribunal was created in England and Wales with its own rules, made under an Act that extended to England and Wales only. The pensions appeal tribunals in Scotland and Northern Ireland continued to exist under the provisions of the original 1943 Act.
As I said, claimants who disagree with decisions by the Secretary of State may appeal those decisions, and they have 12 months in which to make that appeal. There is also provision for what is known as a “late appeal”—an appeal made more than 12 months after the original decision, but within 24 months.
As a result of the 2008 reforms in England and Wales, a late appeal is accepted by the first-tier tribunal unless the Secretary of State objects. If the Secretary of State does object, the tribunal has the power to consider the matter and admit the appeal if it is fair and just to do so. However, the provisions of the 1943 Act still apply to the tribunals in Scotland and Northern Ireland. Until recently they did not allow tribunals in those jurisdictions to treat late appeals with such flexibility, and tribunals could do so only in specific circumstances set out in regulations.
The Lord Chancellor established a war pensions and armed forces compensation advisory steering group to pursue consistency in the procedure for appeals across the United Kingdom. It concluded that existing late appeal processes may—possibly—disadvantage appellants in Scotland and Northern Ireland. The request to make these amendments came from the presidents of tribunals in Scotland and Northern Ireland, and the devolved Administrations have been consulted on, and have approved, the draft regulations.
In 2021, amendments to the 1943 Act were made that would allow us to align the rules under which late appeals are accepted in Scotland and Northern Ireland with the current rules in England and Wales. The draft regulations seek to amend the Pensions Appeal Tribunals (Late Appeals) Regulations 2001 to remove the current anomaly and align the rules on late appeals across the United Kingdom.
Rachel Hopkins (Luton South) (Lab)
It is a pleasure to serve under your chairmanship for the first time this year, Ms Nokes. May I wish a happy new year to you, the Clerk and everyone on the Committee, including the Minister? I look forward to working well with him and to being part of an effective Opposition over the coming year as we work towards truly making the UK the best place to be a veteran.
As has been outlined, the regulations align the late appeals process in Scotland and Northern Ireland more closely with the position in England and Wales, so we will not oppose them. However, having read the documentation and listened to the Minister’s speech, I would like to raise a few points and questions. I declare an interest as a former civil servant and I am particularly interested by the explanatory memorandum, which leads to some of the points I will make.
New regulation 3 provides that
“late appeal will be treated as made in time if the Secretary of State does not object.”
Will the Minister outline the criteria that would result in the Minister, or the Secretary of State on the Minister’s recommendation, objecting to a late appeal? The regulations as amended allow a tribunal to hear an appeal
“in the interests of justice.”
Does the Minister have any further information about the criteria that would lead the tribunal to decide that it is
“in the interests of justice”
to hear the late appeal that has potentially been objected to by the Secretary of State?
I note from the helpful briefing that the pensions appeal tribunals in Scotland and Northern Ireland were invited to comment on the draft legislation, and I heard the Minister say that the devolved Administrations have approved them. Were any comments received from the appeal tribunals in Scotland and Northern Ireland? Will the Minister outline their position on the draft legislation?
I note that there has not been a public consultation on the instrument, but have there been any interactions, discussions or requests for feedback on the late appeal process by veterans’ organisations or charities that support veterans through the tribunal process? Even in my short tenure so far as the shadow Minister, I have spoken to a number of veterans who are frustrated by the process of application and subsequent appeals. It is important for us to hear the voices of veterans and the charities supporting them in our consideration of the new regulations.
As the Minister mentioned and as set out in the explanatory memorandum, the number of additional late appeals that the pensions appeal tribunals in Scotland and Northern Ireland may allow to be brought as a result of the regulations is expected to be low. However, an impact assessment was not undertaken. Will the Minister clarify what analysis was undertaken to evidence that the impact will be low? Will the Minister tell us the percentage of late appeals that were successful in England and Wales, perhaps in 2019, 2020 and 2021, in order to compare that figure with the number of late appeals in Northern Ireland and Scotland? It would be great if the Minister could provide that information; if he does not have it now, I am happy to receive it in writing.
Will the Minister provide a breakdown of the forms of injury or illness relating to applications and potential objections, and therefore to appeals? I am particularly interested in appeals that relate to mental ill health. Many veterans find such appeals difficult to make in light of decisions around mental ill health. That issue has been raised with me and we all need to be alive to it. If the Minister has a breakdown of such information I am happy to receive it in writing.
I mentioned the views of veterans’ charities and reflected on the change between the two systems. Since the implementation of the tribunal reform in 2008, which created the two systems, how satisfied have the veterans’ charities been? That might help us understand how the whole process is operating. As I said, since I have been the shadow Minister over the last six months or so, many veterans have raised concerns about the process with me due to the wait time for a decision or dissatisfaction with a decision that conflicts with medical advice. Does the Minister intend any further reforms to the compensation system? It will be interesting to know.
We are pleased that the Government have finally agreed to medallic recognition for nuclear test veterans, but what recourse will be available to nuclear test veterans and their family members whose appeals were rejected due to difficulties in demonstrating that an illness, injury or death were caused by service at an atomic testing site? Again, I would be grateful for any feedback we could have today, or I would be happy to receive that in writing.
As I have said, we will not oppose the regulations or push them to a vote. However, we have some questions. It would be helpful to look at the compensation and appeal systems, which will be of interest to veterans and the public. I look forward to the Minister’s answers.
Dr Murrison
It is worth pointing out that 24% of decisions made on the armed forces compensation scheme are in fact appealed—a significant number. Most of those come within the 12 months, so what we are talking about is what happens if people bring an appeal outside that time, between 12 and 24 months, and the answer is very few. If I give the hon. Lady a few figures, that will go some way to addressing the points that she made. From the data that I have, since 2019 Northern Ireland has received eight late appeals, of which seven were accepted and one was rejected by the president. Scotland has received four late appeals, of which two were accepted and two are still pending awaiting reasons for lateness from the appellant. In the past 12 months in England and Wales, there have been no late appeals. I hope that gives a sense of the extent of the matter that we are dealing with today.
In terms of breaking down by cause, illness or injury, I will reflect on the hon. Lady’s request. When we get down to these small numbers, there is a danger that we might start identifying the causes for people appealing, and it might be that that information is protected. Perhaps the hon. Lady will allow me to reflect on that, but if I can be helpful, I will be.
On the wider reforms to the armed forces compensation scheme, there is the quinquennial review that is currently under way. I expect that to report in the spring, and we will then have to make a decision on whether the scheme is fit for purpose or whether it needs to be changed.
The matter of nuclear test veterans and others is kept under review by the independent medical advisory group, whom I have met, and it examined the epidemiology of various conditions. So far, the data regarding nuclear test veterans gives us some cause for reassurance. That data is kept under constant review, given the passage of time, to make sure that individuals have not been disadvantaged because of their military service.
On the grounds for objection to an appeal by the Secretary of State, the truth is that the Secretary of State does not object. Even if he did, it could be overturned by a tribunal. That has been a consistent feature. I have asked officials whether we have any records of the Secretary of State objecting, but we could not find any. In terms of the criteria and why this is going to be helpful to people in Northern Ireland and Scotland, it introduces flexibility. At the moment, the only way to make a late appeal is on the grounds of a set of very defined circumstances. This removes that constraint and it is important to say that this is at the request of the presidents of tribunals in Northern Ireland and Scotland and the Lord Chancellor’s advisory group. This is something that they have identified as causing the playing field to not be as level as it should be and is therefore seen to be erasing a potential disadvantage that people living in Northern Ireland and Scotland making an appeal for a late application may fall under. The point of this is to erase that incongruity but, as I said in my opening remarks, the expectation is that the number of people who will be affected by this is very small, and I hope the figures that I have given serve to illustrate that.
Barry Gardiner (Brent North) (Lab)
Can the Minister clarify a point? When my hon. Friend the Member for Luton South was talking about the Secretary of State not objecting, she was referring to new regulation 3, under which it would be possible for the Secretary of State to object if a late appeal was made, but also possible for the pensions appeal tribunal to then overrule that, in effect, and make its own judgment. I just wanted clarification from the Minister, who was absolutely right in saying that the Secretary of State could not do that to date, but would be able to under the new regulations. Therefore, the clarification that my hon. Friend sought is still needed.
Dr Murrison
The Secretary of State could object, but he would have to state his grounds for objection. The reality is that he has not objected so far as we can determine and, in any event, even if he did, his objection could be overruled by the appeal process. I hope that makes it clear and that is not altered by this particular measure.
Going through the list of points that the hon. Member for Luton South made, I hope what I have said explains the position because it is the tribunals and the advisory group set up by the Lord Chancellor that has called for this—the advisory group set up to ensure that there is congruity between the arrangements in Scotland and Northern Ireland and the arrangements in England and Wales. This has been driven by those two sets of authorities, so the answer is that they would be commenting on a measure that they themselves have decided to push for. I hope that is helpful.
I think the hon. Lady’s point about consultation was reasonable, but there has to be some proportionality in this and, given that there really is no conceivable objection to this from a user point of view, it is difficult to see anything in this that could possibly disadvantage any set of veterans. I will be quite clear with the hon. Lady: our consultation has not exactly been extensive on this matter. I hope that is helpful. I cannot possibly see how any of the service charities, Cobseo or any group of veterans could object to the playing field being levelled in the way that has been described, particularly since this has been driven by the presidents of the tribunals and the Lord Chancellor’s advisory group. If there was any suggestion that anyone was going to be relatively disadvantaged, we would have to have done, as the hon. Lady said, a piece of work around wider public consultation, but, on the grounds of proportionality, that would be unnecessary in this particular case.
The hon. Lady asked about an impact assessment. I hope she is reassured by the numbers. They really are tiny and it is not entirely clear that these changes would affect those numbers in any way historically. This has been identified by the presidents of the tribunals and by the advisory group set up by the Lord Chancellor to address what appears to me to be a theoretical disadvantage that residents of Scotland and Northern Ireland may face. It is for that reason that this measure has been introduced. I hope that is helpful.
Question put and agreed to.