Welfare Reform Bill

Lord Mackay of Clashfern Excerpts

Monday 28th November 2011 Grand Committee

[Baroness Lister of Burtersett]

My Lords, I have happily added my name to this amendment because I think it is very important. The noble Lord, Lord Ramsbotham, has moved it so ably that I wish to make only one point.

The Minister constantly evokes responsibility on the part of claimants and, similarly, everything that is written about the Bill emphasises the responsibility of claimants. The amendment would help to ensure that officials exercise their powers in a responsible manner. There needs to be a quality in the contract between claimants and officials. I am not suggesting that officials should be fined or receive a civil penalty if they get it wrong. However, the amendment would help to ensure that officials consider the impact on living standards and the knock-on effects of likely debt and exercise their power as responsibly as possible.

[Lord Mackay of Clashfern]

My Lords, there is, in my view, a principled reason for having something of this kind. However, I am not sure whether the noble Lord has necessarily got it right and obviously he wishes to discuss the detail with the Minister and his officials. For instance, I wonder whether the amendment would have caught the two examples that he gave. Subsection (1)(f) states that the Secretary of State shall consider,

“evidence of the impact that a sanction or penalty may have on the ability of the claimant to fulfil obligations to third parties including those relating to the fulfilment of benefit entitlement conditions”.

We are saying that before imposing a sanction you should ascertain whether the obligations to third parties,

“including those relating to the fulfilment of benefit entitlement conditions”,

prevented the attendance or whatever it was that is being sanctioned. It is not the sanction that does it; it is the fact that the sanction should not be imposed because of the obligations the claimant already had.

[Baroness Sherlock]

My Lords, I would like to add just one point for the Minister to think about in his response. The noble Lord, Lord Ramsbotham, made a very powerful case. If the Minister does not like this way of doing things, could he help the Committee to understand how he can guarantee that his officials will undertake what seem to me to be the eminently reasonable strictures contained within the clause? If this is not the way, then what is?

Amendments moved by the noble Lord, Lord Kirkwood, and others in Committee have drawn the attention of the Committee to the fact that many of the people who will be receiving this benefit are living on the breadline. They are living on incomes which are so tight that what may seem to be relatively small sanctions can tip somebody into misery, as the classics will tell us. Could the Minister therefore consider how we in this Committee and in the House can have the confidence that nobody in that situation will be plunged potentially into despair by having a sanction applied without due consideration being taken of the impact on their physical and mental health, and indeed on the well-being of any children in their family, as described by the noble Lord, Lord Ramsbotham?

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Moved by

[Lord Mackay of Clashfern]

113DA: Clause 131, page 101, line 19, at end insert—
“( ) In section 6 of the Child Maintenance and Other Payments Act 2008 (provision to allow charging of fees by the Commission), after subsection (2) insert—
“(3) Nothing in regulations under subsection (1) shall impose a liability on a parent with care for the payment of fees to the Commission where that parent has taken all reasonable steps to establish whether it is possible or appropriate to make a maintenance agreement (within the meaning of section 9 of the Child Support Act 1991), and where, having taken all such reasonable steps, it is either not possible or not appropriate for the parent with care to do so.””

[Lord Mackay of Clashfern]

My Lords, in view of the Prime Minister’s speech, to which the noble Baronesses referred, I thought it right to write to him to give notice of the amendment which I am moving. I copied the letter to the Secretary of State, to Maria Miller and to my noble friend Lord Freud. I got a very substantial reply from Maria Miller quite recently, explaining to me first, that the Government’s point of view was to try to get people to reach agreement; secondly, that various improvements were to be made in the system for getting money off the recalcitrant parent; and thirdly, that the amounts likely to be charged to the parent in question in my amendment would be rather small. Unfortunately, on the main point the letter appeared to hold to the previous position, which is why I am moving this amendment.

So far as I am concerned, I am perfectly happy with an arrangement in which, in the words of the statute, before the commission or its substitute accepts a person as an applicant, the commission may,

“before accepting an application under those sections, require the applicant to take reasonable steps to establish whether it is possible or appropriate to make such an agreement”.

I am entirely in favour of that: the less that the CSA, or its successor, has to be used, the better.

Unfortunately, experience has shown that there are some people with an obligation to their children who are not willing to make such an arrangement. When I first became Lord Chancellor I distinctly remember receiving a number of heart-rending letters from people who had obtained decrees in the magistrates’ court and the defendant had disappeared. The people writing could not do anything about tracing the defendants. They did not have the necessary resources. It is difficult enough for a large international group to trace somebody who wants to hide. For a lady on her own—and usually it was a woman who was writing, although that does not necessarily follow—to try to find somebody who wants to hide from his obligations is an impossible task. That was one of the motivations I had in supporting, with my noble friend Lord Newton of Braintree, the 1991 Act which set the CSA on its rather troubled course.

The principle of it was perfectly reasonable. The only difficulty was to implement the full policy, because some additional policy considerations were put on to it, which made the formula and its application rather difficult. The situation we are in now is that the Government are supporting the view that, if possible, parents should reach agreement about their children. As I say, I entirely support that. It is the principle behind the Family Law Act 1996, which I was responsible for bringing to Parliament and which went on the statute book, but so far, as far as this part of it is concerned, remains unimplemented. I entirely agree with that. However, when a woman, as a typical example, has taken all reasonable steps and done all that she can to reach an agreement but cannot manage it, I do not agree that she should be charged by the CSA for her application. I entirely agree with the power given in the 2008 Act to require fees to be paid—that was perfectly reasonable and was to be done by regulation—but I want to make an exception to that power which would prevent fees being levied on a woman in the position I have just described. That is utterly unfair. If anyone is to pay for that, surely it should be the person who has caused the difficulty by trying to escape from his moral obligations. There is no question of the woman getting benefit from this—she is acting on behalf of her child.

In her letter, Maria Miller mentioned that they were raising the level of child support. So be it, but the last thing you would want to do with the enhanced level of child support—which, I assume, is considered necessary for the support of the child—is to use it to pay a fee to the CSA. I do not understand how this can be justified. It is purely a matter of justice and fairness and nothing else. It is a short point and very easy to state. With that, I move my amendment.

[Lord Newton of Braintree]

My Lords, I know other noble Lords have attached their name to this amendment but I crave the indulgence of the Committee for a few minutes. As my noble and learned friend Lord Mackay said, we were in cahoots on this 20 years ago. We are in cahoots on it today and I support him totally in what he has said and what he is proposing.

At one stage I thought it was a pity that this group of amendments had not been placed with the next group. I did not agree with everything that was said on the previous group, but I do not have the courage to say who I disagreed with and so I will keep my head down on that. I should like the Minister to explain to me sometime—not tonight—the overarching coalition philosophy that links the Public Bodies Bill proposition that Ministers should take all decisions and the NHS Bill philosophy which says that Ministers should take no decisions. He can think about that and come back to me at his leisure—which might be in about three years’ time.

I, too, am grateful to Gingerbread for some helpful briefing. I wish to cover some historical points, one of which indicates that I have some sympathy with one of the noble Baronesses facing me—namely, the noble Baroness, Lady Sherlock. My noble and learned friend has used characteristically more emollient language than I, but the original CSA proposals were made difficult by two things: one was that the Treasury wanted too much money out of it too soon; the second—and there have been echoes of this in the discussions today—was that the political classes, and I include myself in that, did not understand what they were dealing with.

There are four people in this Room who are former MPs—one of whom is in a Trappist position because she is the Deputy Chairman—my noble friend the former Member for the Cities of London and Westminster; my noble friend the former Member for—I forget what it was called but it was the Borders.

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[Lord De Mauley]

I shall include that in the letter I will send out. In the light of what I have said, I hope that I can persuade my noble and learned friend not to press his amendment.

[Lord Mackay of Clashfern]

This is Grand Committee and therefore there is no other option open to me at present. However, I must confess to not understanding how it is thought to be just that an absent father’s neglect of his obligations to his children should be paid for to any extent by the children, which is ultimately what it amounts to. That is unfair in principle. I raised it with the Prime Minister—I could go no higher than that—as going against his own speech. As has been said, that speech was very clear. As I understood it, the Fathers 4 Justice people were inclined to think that it was extreme, but I think that its kernel was entirely justified. I cannot see for the moment—I expect to remain of this view—that it is fair to charge the children when one of the parents neglects his or her responsibility. The other parent is left with the children, looking after them, I am sure, to the best of their ability. I cannot see why they should be charged once they have complied with the Government’s new condition of going to the CSA.

I accept entirely that that is a very useful condition and I think that it is very reasonable. However, once it has been complied with, I cannot see that the person who has complied with it should, on behalf of her children, be punished by having to pay. I have no option but to withdraw my amendment tonight, but I think the noble Lord will understand that unless some change of heart occurs, I may raise it again. I beg leave to withdraw the amendment.

Amendment 113DA withdrawn.