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Social Security, Housing Benefit and Council Tax Benefit (Miscellaneous Amendments) Regulations 2007

rose to move to resolve, That this House calls upon the Government to revoke the regulations laid before the House on2 May (SI 2007/1331). The noble Lord said: My Lords, I am pleased to move the Motion to revoke standing in my name on the Order Paper. I propose to confine my remarks to two separate areas and hope that I shall not detain the House too long. I hope that the ministerial team will agree that this is an important debate. It is necessary to give people who watch these matters outside this place comfort that the Government are taking careful note of everything being said and done, and that the elaborate and well established processes for consultation and scrutiny are being honourably used and considered in the Minister’s department. There are important checks and balances on government powers. Ministers have profound powers to amend regulations, and they should do so only with appropriate care and concern. They should make changes only when their arguments are compelling and there is evidence that requires the change. The House owes a debt of gratitude to a series of stakeholders—to use that terrible jargon word—in these matters. The provenance of the regulations which the Government have brought before us is the Bhakta case and the judgment originally made by Mark Rowland, a distinguished commissioner. He, with all his experience, noticed a synergy with Regulation 13 of the Social Security (Claims and Payments) Amendment Regulations 1992 in terms of the ability to make an advance claim and advance award within three months, subject to discretionand other considerations. Commissioner Rowland therefore allowed the advance claims test and award to be homologated into his decision in Bhakta. Having read through the papers at the weekend, I think that it is important to note that the case, which, in the way in which Commissioner Rowland brought it forward, provided an interesting conjunction of powers and events, was encouraged and supported by the Court of Appeal. I think that people would rather cut their grass at the weekend than study Court of Appeal judgments in some of these matters because the law is not easy—in this short debate I shall certainly not stray into habitual residence and the merits thereof at any great length, the Minister will be pleased to know. The Court of Appeal was very encouraging of Commissioner Rowland’s approach. That influenced me, because the Court of Appeal is careful about how it supports or otherwise new developments that come to it from decisions made by commissioners at a lower level in the process. The Court of Appeal’s judgment and consideration were supported by the consultees from whom the Social Security Advisory Committee solicited comments. There were not a huge number of respondent consultees, but they all sat neatly in line and in point with the decision by the commissioner and the resultant argument in the Court of Appeal. In addition, the Social Security Advisory Committee, a distinguished body of experts in this, with a positive relationship with the department—that is valued—took the view that there were arguments to be made with regard to the consultation that the department sponsored on these regulations. The committee found that the case was well founded. The new Merits of Statutory Instruments Committee has done us all a service in drawing these regulations to our attention, and the House owes it a debt in that regard. I hope that the Minister is not surprised that this debate is happening tonight. The noble Lord, Lord Taylor of Holbeach, on the Conservative Party Front Bench, and I both came to the conclusion that there was something here to debate. If only he and I thought that, it would be quite important, but the people to whom I have just referred are all of the same view: that the regulation is otiose and unnecessary. It should be noted that in the whole scrutiny and consultation process the Government failed to win a single friend, which is significant. It does not always happen, though sometimes it does, but they are without friends in this case. The Government get high marks for going through the process. It was all done impeccably, but they did not win any of the arguments. The House should pay attention to that. It would be churlish not to acknowledge that the Government did not completely ignore what was said. That was very valuable, and it is important that the commitment to improve the information flow is applauded. That was absolutely right. An awful lot of false steps can be prevented at the appropriate time if information is provided—not just written information; sometimes it needs to be oral advice and support, too. Information is essential to ensure that people understand what is going on, because the regulations essentially affect people coming from outside the United Kingdom, who are sometimes a bit bewildered about all the circumstances in their life. Subjecting them to the rigours of the habitual residence test without support and help is unconscionable and I warmly welcome the statement that the Government have made in that regard. Not everyone studies these detailed areas of social policy law as closely as the Front-Bench spokesmen for the Official Opposition and my party, but advance awards are not common in any benefit and never have been. Regulation 13 was developed in the run-up to the Social Security (Claims and Payments) Amendment Regulations 1992. That was done for the mutual benefit of the department and the claimants, at one and the same time. Those taking advantage of the provision would mainly be DLA-type claimants, when foreseeable circumstances can be seen changing clearly over a three-month period. The provision is now established, but it is a minor part of the provisions to support people in the benefit system. We do not know—the House may like to know, because it is a factor—but I strongly suspect that we are not talking about significant public expenditure, either direct or indirect, in opportunity costs, extra bureaucracy or anything of that kind. If I am wrong about that, I should like to be told. If the Minister does not have the information readily to hand, I am sure that both Front Benches would like more information on that. There cannot be many cases, and I do not think that it would cost a lot if this regulation were left unamended. The Minister himself has a role in this. I know that he has been snowed under with legislation, and I really do not envy him his task, but I hope that he is still there in a fortnight, otherwise we will have to start again with somebody different, and we do not want that to happen. If I can put in a word for him at any point, he just needs to give me a ring. Ministers have a role in this, because the policy-makers have a very different responsibility in the department for trying to keep things tidy, if I can put it that way and not be too pejorative. Ministers have a wider duty: they have to demonstrate good faith and act in the interests of claimants. It may be cheeky to say that this is one that I would have sent back, but it is a matter for the Minister and his conscience. Knowing him well enough, I know that he will have thought about it, but I think that he has got this wrong. I fear that, because people from abroad are such a sensitive subject, there may have been some pressure in the advice that he has had and that the tabloid press, which does not like people from abroad, may have had something to do with that. I hope that is not the case. The Minister will make his own arguments in a moment. I want to say two or three things about the merits of the legal case, because they are intrinsic to the decision facing the House this evening. I will not get drawn into the habitual residence test, because it is ineffably complicated; I do not think that would serve the interest of the House this evening. We are dealing with what Commissioner Rowland put his finger on when he asked whether ““the mere passage of time”” amounted to ““a change of circumstances””. I think he found correctly on that point. I do not think that the mere passage of time is necessarily a change in circumstances. That is what led him to homologate Regulation 13 into the Bhakta case, and that is why the Government decided to make the change that they have this evening. The Bhakta judgment determined that an advance award was not precluded for that reason, and that was sound reasoning. As the House may know, the habitual residence test involves two different elements. It must demonstrate settled intention to reside and an appreciable period of time. Those are easily understood Queen’s English concepts, but at law they are endlessly contestable. The point that I want to make about the habitual residence test is that it is beyond doubt that a series of detailed personal individual circumstances have to be gone into. There is no doubt about that in my mind. I have only done one or two cases, because in my former constituency of south-east Scotland I never had a big caseload in this area. If all the facts of each individual case are relevant and necessary, a rigorous examination, which is already required for that reason, is perfectly capable of making a judgment about the potential for change over the next three-month period. That is basically what the Court of Appeal found, and that is why there has been so much opposition to the Government’s move to revoke the regulations. There are three reasons why the department has said that the regulations must go in relation to people coming from abroad. First, they are too complicated. If they are too complicated for people from abroad, maybe they are just too complicated and maybe Regulation 13 needs to go. You cannot have it both ways and say that a DLA case can be foreseen over a three-month period but the case of someone coming from abroad is too complicated. I do not accept that reasoning. That is a judgment that must be made, but I have come down on the other side of the argument from the Government, if that is one of their arguments. The second case that is made is that decision-makers cannot speculate. I know enough about the DWP to know that there is a specialist unit of people who do this difficult work. They have been trained over many years—since 1992—to do this important work. This is not a question of anyone in any part of the United Kingdom suddenly being faced with this. It is specialist work and in the cases that I know about it has been handled with expertise and great sensitivity. It is not uniquely difficult to predict what will happen over the next three months in any case. Particularly in habitual residence cases, the prospect is entirely within the competence of the professionals who are already doing the work in the department. In any case, the Court of Appeal found that the test was reasonable foreseeability. There is no certainty and there can be no guarantees, because people’s circumstances change endlessly. For that reason, to say that decision makers cannot speculate is a very weak argument. Finally, the department is founding its case on the fact that there would be a greater propensity for fraud. I do not know where the evidence for that is, either way. If we are going to take that kind of approach for regulations of this kind—that it might lend itself more to abuse—I cannot for the life of me fathom why that should be the case. Again, if I am missing something, I would really like to hear some substance to that argument. I saw the statement made in the papers of the SSAC consultation, but I saw nothing that supported it to any extent that gave me pause for thought. Most significantly—I ask the Minister to take this away and to think about it—Regulation 13 seems to bestow a ““discretionary power””. Both of those words are important. It is possible for the decision maker to say, ““Yes, in three months’ time or within that period you will achieve eligibility””. But when that day dawns, without any more due process and without recourse to further inquiries or anything else, if the circumstances have changed—and there is an onus on the claimant to report such changes—it is possible for the same decision maker to say, ““No, I have changed my mind””. This is not something that gives the game away and cannot be retrieved without a heavy reinvestment of bureaucratic administrative time, it is a discretionary power that is capable of being used by the decision maker and could be used without let or hindrance if he felt that a mistake had been made and that circumstances had changed. The department must be very careful that people will not say that it just cannot be bothered anymore with such decisions, that it is all a hassle and that the people in the department are thinking nothing other than, ““This is too much trouble, let’s just get rid of it””. I do not believe that, but that is what people are starting to say. It is a potential reputational issue for the department if serious stakeholders are beginning to say that. There are those who say that that is happening because we are dealing with people from the furth of the United Kingdom and we are discriminating against them. That is not part of my case, but it is what people are saying and that should be of concern to the Government. At the end of the day, the Child Poverty Action Group, which has studied these matters more closely than the rest of us, says that welfare rights advice will change if this Motion is not accepted and the Government stick to their proposal. The advice to people will be, ““If you do not have access to the advance claim provisions in future, we advise you to claim every week; and every time that claim is rejected, appeal until a significant period has passed””. There will be weekly claims and, when they are rejected, weekly appeals. How that would help anyone in terms of the bureaucracy within the DWP defeats me completely. This is a counterproductive regulation. I can see no substance in the Government’s argument and I look forward to what they say in their defence. Moved to resolve, That this House calls upon the Government to revoke the regulations laid before the House on 2 May (SI 2007/1331). 21st Report from the Merits Committee.—(Lord Kirkwood of Kirkhope.)