Pensions Act 2014 (Consequential Amendments) Order 2016

Debate between Lord Kirkwood of Kirkhope and Baroness Drake

Thursday 8th September 2016 Lords Chamber

[Baroness Drake (Lab)]

My Lords, it is unfortunate that there has been an oversight in providing a right of appeal in respect of certain decisions on NI credits for the new state pension, but clearly it is recognised that this SI seeks to correct that.

However, I am a little confused because, as I understand it, the decisions potentially impacted by the oversight in relation to the appeal relate to credits for, in certain circumstances, people caring for children under 12, carers and spouses and civil partners of members of Her Majesty’s Armed Forces. It would be helpful if the Minister could clarify exactly which classes of credits were impacted by this appeal oversight, because it is difficult for the layperson to work it out. In particular, will he say whether that category or class of credits includes applications for credits from those caring for at least 20 hours a week, including grandparents?

The concern has to be over the extent to which the omission of a right of appeal may have affected individuals’ access to such credits and whether this SI addresses that sufficiently. Again, it was quite complex trying to follow what exactly was the answer to that question. Is it possible for the Minister to confirm or indicate the number of claimants who have been denied a right of appeal to date as a result of this omission—that is, the population denied that right rather than those who sought, in the absence of that right, to appeal?

The oversight concerning an appeal embraces all decisions on the relevant credits made between 6 April 2016 and the date when these regulations restore a right of appeal. The Explanatory Memorandum refers to minimising,

“the period when there is no right of appeal”,

for these certain classes of credits, but I am not sure how that impacts the individuals who may have sought to exercise a right of appeal during the period. Does this mean, for example, that all those who made applications for such credits which failed will automatically be written to and told that they now have a right of appeal? I am not quite sure how they will be addressed under this SI. It would be helpful to have that clarified.

As the Explanatory Memorandum observes, some credits are posted automatically while other credits must be applied for: for example, the credit for caring for at least 20 hours a week. The omission of an appeal sits alongside what appears to be government reluctance to report on the success of measures to improve the take-up of claimable benefits. The noble Baroness, Lady Altmann, as Pensions Minister, commented that it was regrettable that the number of carers claiming for NI credits was still so low—so I will take this opportunity to ask the Minister whether it is possible to be advised on how many carers claim such credits and the number the DWP estimates could be eligible for such credits, so that we have some idea of what the noble Baroness, Lady Altmann, was referring to when she referred to the regrettably low number of claimants.

My final point is on the uprating of the new state pension and the consequential adjustment to income-related benefits. Sections 150, 150A and 151A of the Social Security Administration Act refer to uprating by no less than earnings or prices. There is no reference to the triple lock in the new state pension. I cannot miss this opportunity, given that there has been much speculation and comment about the longevity of the triple lock, not least from the Government’s previous Pensions Minister. Can the Minister confirm the exact extent of the Government’s commitment to retaining the triple lock?

Given the introduction of universal credit, over time the adjusting of income-related benefits to take account of the uprating of the new state pension will largely be in respect of awards of universal credit and pension credit. The experience of the poorest pensioners will continue to be influenced by the extent to which the uprating of the pension guarantee credit is comparable to, or less generous than, that applied to the new state pension. Can the Minister confirm the Government’s policy for the uprating of pension credit, not least over the course of this Parliament?

[Lord Kirkwood of Kirkhope (LD)]

My Lords, I will make a short contribution to this debate. I think the House is grateful to the Minister for coming forward with these two corrections to omissions. It is reassuring to hear, if I understand the Minister accurately, that these things have been caught in time, so that there has been no real loss to individuals. Like the noble Baroness, Lady Drake, I would like more reassurance, because it was quite a complicated explanation. I think the Minister said that no results in terms of loss of appeals to national insurance credit were discernible.

It would be valuable if the Minister could take careful note that some of us might like to come back to monitoring this in the uprating debate next spring, so that we will have a better chance to look at all the downstream consequences of the changes. In addition, I would like to hear a little more reassurance about paragraph 12 of the Explanatory Memorandum, Monitoring and Review, which says:

“We will not monitor these changes specifically, but will do so through established customer feedback processes”.

I wonder what that means and how meaningful it is when these changes might be affecting tiny numbers, but the tiny numbers might be significantly affected. I am a bit nervous about leaving this to customer feedback. Will the Minister take that point on board?

On another process point, I have always been amazed at the extent of the expertise available to the professionals in the department, the Pensions Directorate and the Pensions Agency, its predecessor. They were expert at coping with this immense detail. The regulations contain two omissions, and that is two omissions too many. They may be relatively minor in their extent, but, as I keep saying to the Minister, the ministerial team has to make sure that there is enough resource in the department to ensure that parliamentary draftsmen get all the details they need, so that omissions are not made in future. The department continues to suffer staff cuts in a way that puts unreasonable pressure on the experts who are good enough to provide us with the regulations that we consider here in Parliament. Will the Minister reflect on that?

It may be that these are two completely one-off exceptions. I hope that it is not the beginning of a trend. Those of us in Parliament who look at these things will be watching very carefully. I do not blame the professionals in the department: if they are underhanded in terms of dealing with the immense volume of ineffably complicated minutiae of legislative proceedings and provisions, they need all the help that they can get.

Again, I welcome the fact that this seems to have been picked up in time, but if the Minister could give us some more reassurance about winners and losers, even if it takes him over the coming months until the next uprating in the spring, I am perfectly content to support these regulations. I support the points raised by the noble Baroness, Lady Drake, but I am perfectly happy to support these regulations and allow them to go forward.

Welfare Reform and Work Bill

Debate between Lord Kirkwood of Kirkhope and Baroness Drake

Monday 7th December 2015 Lords Chamber

[Baroness Drake (Lab)]

My Lords, I support the amendments in this group, because Clause 11 removes eligibility for the child element of child tax credits for the third and subsequent children and Clause 12 introduces the two-child limit for receipt of the child element of universal credit for families making a new claim. Families with three or more children could lose up to £2,780 per year for each additional child, and may also face the loss of the family element of tax credits—currently £540 per year per family.

Like other noble Lords, I am deeply concerned about the impact of these changes on the families of friends and kinship carers. Some 22% have three or more children in their household—about 29,000 families. That is why these amendments seek to exempt kinship carers from the two-child limit. Otherwise, future carers voluntarily taking on vulnerable children will hit a financial barrier to support, even where the third child is disabled. Yet these carers will still incur significant costs and may face financial distress from taking on these children. Kinship carers provide vital support for some 200,000 children when parents are unable to care for them, often because of urgent circumstances. The children frequently have emotional difficulties, often because they have been living with parents who are drug-dependent or who have abused or neglected them.

The Family Rights Group estimates that exempting carers from the two-child limit would cost £30 million. Yet these carers already save taxpayers the cost of placing the children in care. To restate the figures referred to by the right reverend Prelate the Bishop of Portsmouth, the cost of keeping a child in care for a year is £40,000. The cost of care proceedings is £25,000. The savings that the 132,000 kinship families deliver by voluntarily caring for these 200,000 children run into billions. The disincentive effect of the two-child limit needs to deter only 200 kinship carers from caring in the future for three or more children, and the £30 million saving would be wiped out. That is without counting the human cost to the children.

This disincentive effect on kinship carers is compounded by the benefit cap, which will be set at an increasingly lower level. Kinship carers are not entitled to paid leave while children are settled; they care for the children at their own cost. Some 49% have to give up work when the children move in, or reduce their earnings, because they need to take time to settle a distressed child—often a requirement imposed by the social worker, for good reason. Children can arrive with no notice, after a late evening call from the social worker asking the carer to take the children. The impact of the two-child limit on the kinship carer is deeply unfair, and could act as a disincentive to care for the children. It will impact on future carers, whether working with modest incomes or not working. It will impact harshly on carers who already have their own children, or who are young themselves and want to have their own children—such as the family that Grandparents Plus is in touch with, a sibling carer and his partner who are raising four brothers and sisters since their father’s death as well as their own baby.

Let us look at the reasoning for withdrawing support for any child beyond the first two. The impact assessment advises that the Government expect the limiting of the child element of child tax credit and universal credit to the first two children to,

“encourage parents to reflect carefully on their readiness to support an additional child”.

Of course, such a statement is a nonsense—in fact, contrary to common sense—in the context of kinship carers. The need is not to get such carers to reflect carefully on their readiness to care for the vulnerable child. To the contrary, public policy needs to support such carers in their readiness to care for an additional vulnerable child. That is better for the children and secures savings for the state by not placing them in the care system. Kinship carers are not the birth parents of the children, but voluntarily embrace their care. The Government stress that the limits on benefits beyond the first two children is a behaviour-related measure, because,

“encouraging parents to reflect carefully on their readiness to support an additional child could have a positive effect on overall family stability”.

However, such reasoning is incoherent when applied to kinship carers. Encouraging carers to pause and reflect on the disincentives in the Bill on taking responsibility for a vulnerable child could, perversely, have a negative effect on the family stability available to the child. Kinship carers should not be disincentivised; they should be supported.

During the passage of the Children and Families Bill, I listened to a BBC radio programme examining the experiences of kinship carers and interviewing a lady who recounted the night—she remembered the date, having celebrated her birthday with her own two children—when her doorbell rang around midnight. She opened the door to see a police officer, a social worker and two distressed children, her sister’s children, at risk of domestic violence. She told movingly of how she had raised those children along with her own two, and had struggled, with little support from the local authority services, and of how proud she was of the recent graduation of the little girl on her doorstep that night. That alone was a powerful story but she went on to recall how, a few years after that night, the doorbell rang, again late at night. This time, the policeman and the social worker were holding her sister’s baby. The interviewer asked if she was tempted to decline to take the baby in view of the lack of support that she had received previously. I remember the incredulity in the woman’s voice at the question, and the power of her answer to the effect of: “How could I abandon a little baby just because I had been poorly treated?”. She brought up five children, two that she gave birth two and three that she embraced. I ask the Minister: if someone like that lady were faced with a similar scenario in future, under this Bill, what behavioural response would the Government be seeking to achieve from them with the two-child limit on benefits?

If the Government disincentivise kinship carers, the people they will hurt are vulnerable children. I doubt that that would pass the public litmus test. The Minister has previously demonstrated his understanding of the importance of kinship carers to vulnerable children, so I ask him to commit to considering that kinship carers be exempted from the two-child limit on benefits. It does not make sense, either for the interests of the child or in terms of public expenditure.

[Lord Kirkwood of Kirkhope (LD)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Drake. The House owes her a debt because of the exemplary work that she has done over many months and years on the subject of kinship caring. Her speech will repay careful study, and I shall look forward to doing that when the Official Report is printed.

This is going to be a harder Committee stage in social security terms than some that we have had in the past. This is basically a Bill that reduces money but does little else of interest. However, it is a very important one. I noticed that the very mild-mannered noble Lord, Lord McKenzie of Luton, characterised it as the most wretched Bill that he had ever seen in his life. That is a considered view from a moderate man, so we need to be careful about how we take our proceedings forward.

The Bill dramatically changes the money and resources available to the social security system. I am sure that everyone understands that there is a case in periods of austerity for making special arrangements to deal with immediate and urgent circumstances. However, we need to be careful that we are not making changes that, as if by magic, get woven into the social security fabric in perpetuity. What I am most worried about—this is really a discussion for clause stand part on Clauses 11 and 12—is that the two-child limit is going into universal credit. That is a matter of great concern to me. I say in passing that the noble Earl, Lord Listowel, was contrite earlier about having been too nice to the Government. Indeed he was, but I am pleased that he has put the record straight.

The department has certainly done a very good job, because the universal credit situation could have been a whole lot worse, which would have overshadowed all these proceedings in Committee. The way we contrive to support people is important, particularly those with larger families; it is mainly ethnic minority communities which have that culture, which we know predisposes them to risk of poverty, and we need to take that into account along with everything else as we go forward.

The Minister needs to listen carefully to the case for exemptions. The Committee will be faced, certainly at the later stages of proceedings on the Bill, with deciding to what extent what the Government are trying to do is reasonable in the long term as well as in the short term. As far as I am concerned—I put it bluntly on the record and cannot make it any clearer than this—I am willing to work with the Government to mitigate some of the sharp edges of the Bill as regards the savings that they hope to make. If the Government are willing to make concessions and think carefully, which the Minister in the past has demonstrated he can successfully do, and if he is willing to go away and look at some of these exemptions we are talking about today, I would be much more disposed to decline to support attempts on the Marshalled List to vote against Clauses 11 and 12 standing part. I will approach the Bill in that way. I will not be unreasonable; I perfectly well understand the financial exigencies that we must face and the continuous battle the department has with the Treasury—it would be unrealistic not to accept that. However, the onus is on the department to look at ways of mitigating some of the changes in the Bill, because it needs to be changed.

I said at Second Reading that I wanted to pursue preventive spending. After the cases that have been made, by the right reverend Prelate and others, I find it hard to believe that a saving of £30 million would not risk a much greater public cost in other silos within Treasury spend across central government as a whole. Therefore the question asked by the noble Baroness, Lady Sherlock, on whether the Government have done any work about what it would cost if we reduced the support to kinship carers in this way is important.

The situation we face as a Committee will be difficult to reconcile unless the Government are able to answer some of these questions, certainly about spending money and investing to save in future. I certainly hope that the Government will think very carefully about some of the powerful speeches that have been made, in particular on kinship carers.

Pensions Act 2011 (Consequential and Supplementary Provisions) Regulations 2014

Debate between Lord Kirkwood of Kirkhope and Baroness Drake

Wednesday 9th July 2014 Grand Committee

[Lord Kirkwood of Kirkhope (LD)]

My Lords, I am pleased to have the opportunity to contribute to this technical debate. I declare an interest as chairman of the defined benefit superannuation scheme of the General Medical Council, so unfortunately I know nothing about money purchase schemes. I did try, honestly—I took home the 36-page judgment of the noble and learned Lord, Lord Walker, and read it carefully until Germany scored the second goal. I still do not understand the noble and learned Lord’s reasoning, but I am sure that it is sound.

I hope that the Minister can help me. I understand that we are dealing with two sets of statutory instruments. The department deserves credit for taking on board the suggestion made by the Secondary Legislation Scrutiny Committee of teasing out the negative from the affirmative. That is always good practice. However, I do not know where the transitional regulation, Regulation 1711, comes from. I assumed that it would have been sensible to have taken these together because they talk about the same thing and are all part of a piece. However, I may have missed something and the Minister might be able to put me right on the procedure that is involved.

This is a small but important issue and anyone who looks at it will be reminded of the ineffable complexity of our pensions system. I have to say that although this is the right thing to do and I am content with the regulations, they form another layer of complexity—because they have to. If money purchase is not defined in this way, it would leave a terrible amount of uncertainty. If people do not understand a valid, watertight description of money purchase, chaos will ensue. Lots of schemes could get into even greater difficulties in the future.

We always have to be careful about retrospective provision. These regulations go back to 1 January 1997. I understand perfectly why and, in the circumstances, that is justified, but, as I say, we must always be careful about retrospective provision. However, I think this is the right tactic. It is not perfect because retrospection never is, but the stated case is accepted, certainly as far as I am concerned. Clarity is the order of the day, as much as we can achieve it in pension provision.

I have a couple of questions for the Minister. Some of these things are imponderable because the data are not available in money purchase schemes to the same extent as in defined benefit schemes, but the number of affected schemes has been listed as being around 800. Is there an update on that figure and is there now a better definition? Has the number gone up or down since these matters started to be drawn up by the department? I also want to try to understand what the costs of non-compliance would amount to. What is the worst that could happen? If everything that can go wrong does go wrong, what would happen to hybrid schemes such as these which involve money purchase in a way that we have to change through these regulations?

As the chairman of a superannuation scheme myself, the key and overriding priority of a trustee is to protect the members’ benefits. Are there any circumstances where benefits afforded to members could be prejudiced by these changes? I have looked at the very helpful Explanatory Memorandum. Paragraph 19 explains the provisions of,

“transitional measures to assist affected schemes in three ways”.

The first bullet point talks about,

“retrospective protection so that schemes do not have to revisit past decisions”,

and goes on to conclude that,

“there is very likely to be no detrimental material impact on member benefits”.

That is a nuanced subordinate clause, and perhaps it has to be so. I would rather have the truth than be given a more definitive statement that was easier to understand and more reassuring. However, that is a key question for me. If I could be given some reassurance on that point, I would be even happier than I am at the moment.

Finally, I think that the consultation was exemplary. I looked at the document very carefully and the department did everything it could. The consultation was responded to well and those who did respond are experts who know the exact consequences of these changes. For me, that has lifted a great deal of concern and apprehension about the effects of these changes. These regulations reflect circumstances that no one could have foreseen and the Government have responded to them in the best way they can. The situation is still a bit fuzzy at the edges, but I hope that the Minister will give us an assurance that the appropriate officials who understand these things will monitor the position so that we can be assured in the fullness of time that the assumptions we are making of very little or no loss of benefit to individual members are found to be what happens in practice in the future.

[Baroness Drake (Lab)]

My Lords, I declare my interests as a trustee of both the Santander and Telefónica pension schemes.

This statutory instrument has been on a rather interesting journey. In part it supersedes draft regulations published in May, which were withdrawn and subsequently divided into two in order to separate provisions required to go through affirmative procedure from those required to go through negative procedure. It has therefore been a little confusing to try to anticipate the affirmative provisions to be relaid in the form of a pared-down instrument, as this SI was not laid until last Thursday. Having said that, I appreciate that dealing with the uncertainties and complexities that flow from the Supreme Court decision in Bridge cannot have been straightforward for the Government. I compliment the drafters of the Explanatory Memoranda and the impact assessment, who tried to provide clarity as to what the Government intend and why, in what to most normal people would seem a rather dense and complex set of requirements.

The two regulations have separate Explanatory Memoranda, but they share a common impact assessment, so one can assume that certain key assumptions and conclusions underpin both orders. I refer in particular to the fact that, having considered the consultation responses, the department has changed its policy on retrospection for non-compliant schemes. Decisions taken by schemes between 1 January 1997 and the coming into force of Section 29 will be validated, except in two limited circumstances that relate to winding up and employer debt, where there is a risk to members’ benefits.

The department has been persuaded that it would therefore be unduly burdensome to require schemes to revisit past decisions, which could give rise to expensive administrative costs that could deplete scheme assets and therefore the ability to fund members’ benefits—that is the argument put by the Government—and that the impact of members’ benefits of revisiting past decisions since July 2011 would be negligible. In summary, the Government are persuaded that with two exceptions, Section 29 will come into force only with prospective effect; there will be retrospective protection for schemes and past decisions will be validated.

However, in coming to that view and giving that retrospective protection to decisions made, the department is unable to quantify the impact of the regulations on schemes likely to be affected. There are no data available at an industry-wide level. The consultation did not elicit sufficient data at scheme level to allow the department to produce reliable estimates of the impacts on schemes and on members—and indeed, on employers. The department engaged further through the pensions regulator’s annual survey and the wider pensions industry to enable some quantification of costs and benefit. However, insufficient information was forthcoming.

A question must be, therefore: are the Government right to be persuaded, and indeed confident, that except in the defined limited circumstances that they have identified, there is negligible risk to members’ benefits in validating decisions taken by schemes before the coming into force of Section 29? Should there be more exceptions to the retrospective validation? How do the Government give themselves the level of confidence they need to give that retrospective validation? I will illustrate my concern with reference to a couple of examples.

The very important rules which govern any attempts to change pension rights or entitlements are detailed in Section 67 of the Pensions Act 1995, popularly referred to as “Section 67 rights”—an often quoted phrase because of its protected nature. During the course of the consultation on the regulations arising from the Pensions Act 2011, stakeholders advised the department that there could be schemes which had inadvertently changed their benefits from non-money purchase to money purchase; for example, by removing a guarantee from a cash balance scheme because of their interpretation of the law in force at the time. In doing so they may not have secured the members’ consent as is required.

The department has taken the view that schemes should not be required to revisit these decisions and that it would deem that the requirements of Section 67 of the Pensions Act 1995 had been satisfied where the actuarial equivalence requirements were met before such a scheme modification took effect. But those actuarial equivalence assumptions may not hold good over the longer term, and the issue remains that a guarantee or some other right has been removed without consent. The Section 67 requirements have not been met and the beneficiaries may be worse off.