This is a test to see whether anybody is keeping an eye on what we are up to. Amendment No. 74 seeks to include within the scope of things against which one can appeal the matters covered by clause 27(2)(a). Perceptive Committee members will have noticed that there is no clause 27(2)(a), but had amendment No. 68 been agreed there would have been. The amendment remained on the Amendment Paper because the Chairmen were so confident that amendment No. 68 would be accepted. Let us regard it as a probing amendment.
Within the scope of decisions that can be appealed against, it would seem from my aided reading that the recovery of overpayments—a decision that an overpayment has been made and that it needs to be repaid—is impossible to appeal against because it is not within the scope of clause 36. The purpose of the amendment was to see whether that was the intention, or whether one can appeal against overpayments. If one cannot appeal, we feel that one ought to be able to.
On the subject of appeals and related matters such as penalties, I ask the Minister to reply on record to a
question of which I have given her prior notice. On Tuesday, the Financial Secretary responded to one of my questions about cases in which people can face penalties for not supplying information:
''The initial penalty under the provisions is not at the Revenue's discretion because only the commissioners may impose it.''—[Official Report, Standing Committee A, 22 January 2002; c. 201.]
I have been advised that that may not be consistent with the rest of the Bill. It seems that penalties for not supplying information are at the board's discretion because it imposes them, and penalties will only get near the commissioners if there is an appeal, which we are discussing in clause 36.
It has been put to me that that was probably an inaccurate statement of the position regarding the imposition of penalties, and it would be helpful if the Paymaster General would clarify whether her right hon. Friend meant what he said in that case because the transcripts of what we say are sometimes used in appeals and court cases, and it would be unfortunate if an inaccurate impression had been given.
The guts of the amendment are that one should be able to appeal against a decision on an overpayment.
I can politely refer to this as a consequential amendment to clause 27. The hon. Gentleman withdrew amendment No. 68, and I suppose that he will withdraw today's amendment, but I shall not refer to that because he has been gracious in his comments.
The hon. Gentleman asked for clarification on the statement made by my right hon. Friend the Financial Secretary in Standing Committee on Tuesday. I shall put this on the record, but it may be helpful if I write to the hon. Gentleman as well given his point about ensuring clarity. My right hon. Friend's statement was not incorrect, and I shall explain why. The discussion was about penalties for failing to provide information, which are set out clause 30(2), and the initial penalty to which he referred is set out in clause 30(2)(a).
Paragraph 3(1) to schedule 2 makes it clear that the board must commence proceedings for a penalty to be imposed under clause 30(2)(a). In other words, it must ask the commissioners whether they are prepared to impose such a penalty. Only the commissioners can impose it. The board cannot impose a penalty for continued failure to provide information under clause 30(2)(b) unless, and until, the commission has imposed an initial penalty under clause 30(2)(a). The board's action is consequent on the commissioners' starting the process. As the provision references across the Bill, it would help not only if I put that explanation on the record, but if I wrote to members of the Committee.
On appeals and overpayment, I want to double-check that there is not a semantic difference. In an assessment on overpayment, the claimant can appeal against the decision on entitlement from which the overpayment arises, so the difference is one of semantics. It is decisions on entitlement that will produce either the underpayment or the overpayment.
I understand exactly what the Paymaster General is saying. Let us suppose that, having been given a revised assessment, the board got the sums wrong in taking one entitlement away from the other,
and that a query arose not about the assessment but about the calculation of the overpayment. Could one appeal against that?
Yes, because that would be part of the entitlement assessment. I think that the hon. Gentleman is talking not about a case where a mistake on actual entitlement is made, but where the error is produced by bringing together the facts of the entitlement. If the facts are disputed, that is a matter of appeal. Again, perhaps it would be helpful to write to the hon. Gentleman and other members of the Committee on the matter, as I have a feeling that we are talking about technicalities and the meaning of words, rather than the intention behind the provision, which the hon. Gentleman wants to clarify.
I am grateful for that helpful response to the issues that I raised. I am talking about a circumstance where everyone agrees with the new entitlement and with the board, including up to the point at which a new assessment is made, but where the assessment implies that an overpayment has arisen and the board makes an error in calculating the overpayment. I understand the spirit of the Paymaster General's explanation but I am not absolutely sure that the clause under discussion deals with this issue. I look forward to her written explanation.
I will look closely at the matter before I reply to the hon. Gentleman. If he has identified what is politely called a lacuna, I shall consider whether it needs to be addressed.