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

My Lords, I thank the noble Lord, Lord Kirkwood, for bringing this matter to the attention of the House and for placing this short debate in its historical context. The Merits Committee does important work and when it brings secondary legislation to our attention, it is generally for a very good reason. This Government have promoted a great many Bills in the past decade that give Secretaries of State extensive powers to make regulations—so much so, that secondary legislation is now often the means by which new policy is announced, rather than merely implemented. Nowhere is that more true than in work and pensions, as the great complexity of the benefit system provides the Government with a fertile field for seeking enabling powers on the grounds of flexibility and responsiveness. This makes it a matter of concern when the Government do not accept a committee's recommendation. In this case, it is the Social Security Advisory Committee, which has recommended that these regulations are unnecessary and even counter-productive. I hope that the Government will be able to give us a full account of the reasons behind their decision to ignore this advice. There is indeed a great need for flexibility in the application of benefit law. Too much control from the centre can make the benefit system prescriptive and unresponsive to the needs of the very people whom it is intended to help. I am worried that this Government's instinct in this case has the effect of reducing the scope of a decision-maker to exercise their discretion in this matter. In paragraph 27 of the Government's response, they say that there has been inconsistency in how the provisions have been applied since the court judgment. The habitual residency test is indeed a complicated matter, but should the Government not be ensuring that their decision-makers are sufficiently trained to make complex decisions such as this? It should not be beyond the capabilities of a Government to produce guidance for them that can be consistently employed. The noble Lord, Lord Kirkwood, drew the House’s attention to the high skill base of decision-makers in this area. The Government should not be taking away a power that could do much, when properly exercised, to help a claimant just because the Government have failed to invest sufficient thought into how the power should be exercised. However, this is not the only reason that the Government have given for disagreeing with the committee's recommendation. Another reason that they gave is that allowing an advance claim opens up the benefit system to increased fraud. Will the Minister explain why the Government have come to the conclusion that there would be a significant effect? I have not come across any evidence in any of the material on these regulations that would indicate this. In fact, the Government's responses seem to be based on very little evidence of any sort. I hope that the Minister will be able to reassure us that these regulations are, in fact, based on thoughtful analysis of the issue rather than a knee-jerk reaction to the Court of Appeal decision. The Government also claim that the power to make an advance claim would open the door to repeated appeals against the decision-maker, should he or she refuse to allow it in a particular case. This statement cannot hold water. As the name suggests, a decision-maker's function is to make decisions. Why would the decision to refuse an advance claim be any more likely to provoke an appeal than any other? Is there any evidence to show that refusals to allow an advance claim for a benefit such as the disability living allowance are appealed against at a greater rate than other decisions? Given that the Child Poverty Action Group's advice to claimants attempting to pass the habitual residence test is to make repeated claims and appeals until the requirements are met, sensible use of these powers would surely reduce the caseload. These regulations cover a matter of great complexity. It is unfortunate that there does not seem to be much data on which to base an informed decision. I look forward to the Minister’s response and hope that he can answer my questions as well as those raised by the noble Lord, Lord Kirkwood. A full answer would do much to address my concerns about these regulations.