Clause 40

Welfare Reform Bill – in a Public Bill Committee on 3rd March 2009.

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Disqualification for holding etc. driving licence or travel authorisation

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 10:30 am, 3rd March 2009

I beg to move amendment 33, in clause 40, page 43, line 39, leave out subsection (7).

It is a pleasure to serve under your chairmanship, Mr. Hood, on this last day of the Committee’s proceedings.

This is a probing amendment; its primary purpose is to probe Ministers on the means by which disqualification orders will be served, to ensure that they are received by those persons that they are aimed at. One organisation that campaigns in that area, Families Need Fathers, has told us that quite a lot of communication from the Child Support Agency, and more recently from the Child Maintenance and Enforcement Commission, tends to go missing. It also said that, to be honest, people tend to be blasÃ(c) about letters from the Child Support Agency.

I should like to probe Ministers on the method by which the disqualification orders will be served, the nature of them, and the procedure to ensure that individuals have actually received notice of the intention to disqualify them from their driving licence or travel authorisation. How would we avoid, for example, the notice turning up in the post, someone being away for a week and discovering on their return that their driving licence has been taken away? I should like some detail about how that will work—will it be delivered by post, recorded delivery, or a visit? Will there have to be some evidence that the document has been received? This is a probing amendment to cover such issues and to ensure that, given the seriousness of this penalty and the fact that it can be imposed by an administrative order, the proper procedures are in place to ensure that the right people receive the notice and that they have been made aware of it before those steps are taken.

For the benefit of the Committee, as general background to the clause, I think the Secretary of State was quite right to point out at Second Reading that this procedure represents a change from the Child Maintenance and Other Payments Act 2008. One of the things that is important, and one of the reasons that we decided to support this, was that in a subsequent clause there is effectively a sunset clause—this will have to be looked at to determine how effective it would be. I know from discussions that my hon. Friend the Member for South-West Bedfordshire (Andrew Selous), who speaks for us on child maintenance issues, has had evidence, albeit anecdotal,  from the United States of America that the threat of those disqualification orders for both driving licences and travel authorisation is apparently a very effective way of changing the behaviour of non-resident parents. Given that effectiveness, it is at least worth trying this approach.

The Bill makes it clear that, after the two-year review period, Ministers have to look at the evidence and lay that report before Parliament and take a decision either to allow this to continue or to stop it. Given that the provisions are time-limited to 30 months and that there is then an opportunity for Parliament to assess whether they have worked, it is worth trying them. If we are going to do it, it is imperative that the Government make sure that it works properly—nothing would discredit this more quickly than a small number of non-resident parents receiving disqualification orders and there being a problem in their delivery, creating a number of injustices. That would be the quickest way to bring this procedure into disrepute, which would ultimately harm the children and the families that it is meant to help. It would be helpful to the Committee if the Minister could clear that up.

Photo of Kitty Ussher Kitty Ussher Parliamentary Under-Secretary, Department for Work and Pensions

It is a pleasure to serve under your chairmanship, Mr. Hood.

I am grateful for the amendment as it gives me an opportunity to provide a little more detail about how a disqualification order would work in practice. I was relieved to hear that this is a probing amendment. I would have been slightly worried by the possibility that this subsection could be deleted because that would have meant that we could take away people’s passports or driving licences without notifying them that that was our intention. I am therefore grateful for the opportunity to explain how it would work.

The legislation is crystal clear: the order cannot take effect until the person receives notice of the order. The legislation does not specify exactly how this should happen, but I am happy to confirm that, in practice, this will be by registered post or by hand delivery. There is a right of appeal, and the legislation makes it clear that, where there are reasonable grounds to do so, the appeal rights can be extended in time and even renewed. We think that is sufficient .

The hon. Gentleman mentioned the possibility that communications from the Child Support Agency might be routinely ignored by precisely the people whose attention we are trying to attract. I am afraid that argument does not wash too well with me. He is right to say that international evidence on the effectiveness of both these measures is quite clear. I was particularly taken by the Australian example, which shows that, strangely enough, when the holiday season comes around there is an increase in the maintenance paid by people who wish to use their passport. That is exactly the kind of thing we will be looking at.

The hon. Gentleman has also rightly said that there is a two-year trial period for driving licences. The international evidence—particularly from various states in America—showed that the threat of being disqualified from driving does seem to have precisely the type of behavioural effect we would want on people who have been routinely ignoring Child Support Agency communications. Since  disqualifying someone from driving has more complicated effects than removing a travel document, we felt it was right to have a trial period. We will be looking at all the evidence, including the effects on the courts and the criminal justice system. I hope that is sufficient detail to enable the hon. Gentleman to withdraw his amendment.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am grateful to the Minister, and pleased that she is able to confirm that there will be a process in place to use either registered post, which requires a signature for delivery, or a personal visit, to ensure that the correct individual has actually received the notice. I think that is right. First, it will help to ensure that there are as few cases of injustice as possible. Secondly, the last thing we want to do is clog up the magistrates courts with lots of appeals that are only there because of administrative foul-ups.

Having got those assurances on the record, and having heard the Minister elaborate on some of the evidence—and confirming, as the Bill says, that this will be assessed over the trial period and looked at very carefully—I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I beg to move amendment 34, in clause 40, page 44, line 10, leave out paragraph (b).

If there any Members here who were on the Committee of the Child Maintenance and Other Payments Bill—

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The hon. Gentleman says he was—those Members will find this amendment rather familiar. The amendment looks at the definition of travel authorisation: there are two definitions in clause 40. The first is a United Kingdom passport and the second is an ID card. The reason for mentioning this is that, under the Government’s proposals, an ID card is not just a travel authorisation document. The Government plan eventually to use the ID card as a method of accessing a whole range of public services.

The purpose of the amendment is to probe what exactly the Government mean by removing somebody’s ID card. Are they proposing to remove just the travel feature of the card—I am not entirely certain how that would work—or are they proposing to take the ID card away altogether? Given what the Government have said about their future plans—that ID cards will be the way that people access public services—we would not just be taking away travel authorisation; we would potentially be taking away the means of accessing a whole range of public services, including health care and education.

We will not comment in this Committee on whether the Government’s plans for ID cards are wise: that would try your patience, Mr. Hood. However,they must be very clear about how they intend to implement the travel authorisation provisions. Is there a way of having a particular feature of the ID card enabled or disabled, or does the whole ID card have to be taken away? It would be of great assistance to the Committee if the Minister could explain that in more detail.

Photo of Kitty Ussher Kitty Ussher Parliamentary Under-Secretary, Department for Work and Pensions

I am extremely happy to do that. It may reassure the hon. Gentleman to know that the approach we are taking here is exactly the same as that in the Identity Cards Act 2006. That amended legislation  concerning football banning and travel restriction orders where an individual is required to surrender his or her passport. In due course, he or she will also have to surrender their ID card. Our approach is consistent with that legislation and is not ever to deny the non-resident parent access to any public services that could potentially be accessed through the use of an ID card in future.

Section 13 of the 2006 Act ensures that ID cards will not be required as a condition of accessing free public services or the payment of benefit until enrolment on the national identity register is made compulsory by any future Act of Parliament. It is not an issue under current legislation, therefore, but if and when that happens, and where the commission makes an administrative order of this sort, the Identity and Passport Service will replace the non-resident parent’s normal ID card with a version that does not record that he or she is a British citizen. Therefore, the document will cease to be a travel document, but will continue to be valid for use in any other way in which a future Act of Parliament might enable it. The non-resident parent would be able to use the replacement ID card to access public services or any benefit entitlement, but that card will not be suitable for travel within the EU.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

If the replacement ID card does not indicate that the holder is a British citizen, how can it be used as a method of determining whether they are entitled to a range of other public services or benefits, some of which may require that they be a British citizen in order to qualify for them?

Photo of Kitty Ussher Kitty Ussher Parliamentary Under-Secretary, Department for Work and Pensions

It is in order to mirror the provisions were it to be a passport that is effectively annulled under the current legal situation. It is removing that part of the ID card that is equivalent to a passport and a travel document, while retaining all the other entitlements that could, hypothetically, be accessible after a future Act of Parliament. It is residence, not citizenship, that denotes entitlement to public services, so I can reassure the hon. Gentleman that people will not be disentitled to those. They will, however, be prevented from travel. That works in the same way as the legislation applies to football hooligans.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am grateful to the Minister for her explanation. It is rather better than the one we heard when we probed this on the Child Maintenance and Other Payments Bill—maybe that issue had not been worked out then. [Interruption.] That was not a dig at the hon. Member for Warwick and Leamington. He did a generally excellent job of championing that Bill through the House of Commons and turning it into an Act of Parliament. It was just on that particular question that he did not provide anything approaching such an elegant explanation as the hon. Lady has.

Given the hon. Lady’s explanation and as she has confirmed that taking away the travel authorisation part of the ID card is all that is proposed, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 10:45 am, 3rd March 2009

I beg to move amendment 35, in clause 40, page 47, line 1, leave out subsection (3).

Unless the Minister will provide a good explanation to the contrary, subsection (3) seems to be particularly unjust. It means that if someone receives a disqualification order to have either their driving licence or their travel document removed, and subsequently appeals to the court, and the court agrees that there has been a problem and revokes that disqualification, the commission would still be able to receive its appeal costs from that individual. We are talking about a case where someone has received their disqualification, gone to court, and shown that it was not proper or right for them to be disqualified from having either their driving licence or travel authorisation. However, they will still be held liable for the commission’s costs in the appeal process.

It seems to me that this is not just. If the commission seeks a disqualification order and is successful, it is not unreasonable that it can recover its costs. However, if the person appeals and is successful, the commission should have to bear that cost. Clearly, if the person appeals and is unsuccessful, which demonstrates that the commission took the right steps, it does not seem unreasonable that they should bear the cost. However, if they are successful it is not at all just that they are expected to bear the cost of the commission’s behaviour.

It could be that the commission was completely unjustified in seeking to disqualify the person from having a driving licence or travel authorisation and had no grounds to do so, and the person appealed to the court to put that right; I do not see why the person should be expected to pay the costs. Given that this whole piece of legislation is about getting more money from non-resident parents to their families, in a case where it is not shown that they have behaved in a way that warrants removing their driving licence or travel authorisation, taking money from them seems perverse. Will the Minister explain why this apparently unjust measure is contained within this otherwise perfectly acceptable clause?

Photo of Kitty Ussher Kitty Ussher Parliamentary Under-Secretary, Department for Work and Pensions

I am happy to explain why this subsection is there, and I do not think it is unjust. The key to it is this: it is something that the courts may do. They may award costs to the non-resident parent on appeal. It is not something they necessarily have to do.

The hon. Gentleman is quite right. If the non-resident parent has followed all the rules and it transpires on appeal that they should not be disqualified from using their passport or driving licence for one of the reasons that is set out clearly in legislation—for example, their children’s welfare would be affected, they need it for their livelihood or they have not wilfully refused or culpably neglected to pay maintenance—then it is at the discretion of the court not to award costs to them.

Let me turn this around. You can construct an argument where even if one of those criteria is met—the non-resident parent could be one of the people that the hon. Gentleman characterised in a previous amendment, who perhaps is routinely ignoring any correspondence or attempt to communicate and find out the facts from the Child Support Agency. The parent may well need their driving licence in order to earn a living, but has never bothered to communicate that despite numerous attempts to ascertain the situation. It is only when presented with the last possibility to ensure this does not happen that  they actually engage. At this point, I think it would be wrong that the taxpayer should pay the costs. In such cases, it should be at the court’s discretion—it should have the option of imposing costs. The fact that a non-resident parent may have to pay costs—which is obviously something that would be communicated to them at an earlier stage—would also help prevent manipulation of the appeals process. It would raise the stakes slightly, so perhaps fewer cases would come unnecessarily to court. That would also be a good use of taxpayers’ resources.

It is not always the case that the non-resident parent would have to pay costs, but I can envisage circumstances where a court acting with the discretionary powers we are giving it may consider it fair to award costs to the non-resident parent. That is why the subsection is in the legislation.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

That was not a terribly good explanation. It sounded remarkably as though the Minister is talking about using the appeal costs as some sort of punishment. If she wants to have a form of punishment in the legislation, it should be explicit; the costs of the appeal should not be used as a back-door method of punishment. I am concerned about non-resident parents who have done nothing wrong but end up having a disqualification order sought against them, who successfully appeal against the order because the commission has taken the incorrect steps, and then find that they have an award of costs against them.

In addition, there is nothing in the Bill to suggest that the commission’s appeal costs are in any way reasonable. Will the Minister go away and consider whether the commission’s appeal costs ought to be reasonable, and come back to us, perhaps on Report? We do not want the commission, using taxpayers’ money, to spend a lot of money on these processes, at the end of which non-resident parents who have done nothing wrong and have successfully won their appeal are hit with a significant bill. That is the danger with this type of legislation: if we are not to create a lot of martyrs, it is sensible to ensure that these powers are used proportionately.

The Minister is correct that the subsection just gives the court the ability to award costs—obviously we are depending on the court’s looking at all the facts of the case and being reasonable. Given that that safeguard is in there, and given the Minister’s explanation about where she thinks this power is likely to be used, I am quite happy to seek leave of the Committee to withdraw my amendment. But I would like to ask her to go away and have a look to see whether any check is needed—whether in the legislation or the regulations—on what the commission is allowed to spend on appeals, to make sure that it is reasonable.

Photo of Kitty Ussher Kitty Ussher Parliamentary Under-Secretary, Department for Work and Pensions

So that we can satisfy ourselves that unreasonable costs will not be put on non-resident parents appealing, even when there is no fault on the commission’s side, I would be happy to have a look at the issue and perhaps write to the hon. Gentleman.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

That is very generous of the Minister. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Paul Rowen Paul Rowen Shadow Work and Pensions Minister

Before we go on to agree on the clause, there are a couple of comments that I would like to make and a few questions I would like to ask the Minister, to which I hope she can respond.

First, it is clear from the Child Maintenance and Other Payments Bill that the Department already has the ability to disqualify and take away licences and passports. In the House of Lords on 13 May 2008 the Lord McKenzie of Luton made the following statement:

“I therefore acknowledge your Lordships’ concerns relating to that provision and accept that the prevailing view at present is that the decision should be made by the courts.”—[Official Report, House of Lords, 13 May 2008; Vol. 701, c. 963.]

I would like to ask the Minister what new evidence has come to light that, since that statement, it has proved necessary to remove the reference to the courts. Give that the Child Maintenance and Enforcement Commission has only been operational since October last year, perhaps she would tell us how many applications have been made to the court and whether there is evidence that that process has proved slow and unsuccessful.

The second question that I would like to ask the Minister concerns the implementation of the orders. Who will actually be implementing the order and at what level in the structure? There is concern that very junior civil servants might issue these orders. What internal checks will exist to ensure that it is the last resort and that proper checks have been made before an order is issued?

In addition, there is a wider concern—I admit that it applies more to CMEC’s predecessors—about the number of orders that the Child Support Agency already gets wrong. One of the issues in the clause is that, although the court can discuss whether disqualification is appropriate, it is not allowed to discuss whether the sum that is being talked about is correct. A concern about the CSA—rather than CMEC, because the CSA has been in operation longer—is the fact that it often gets it wrong. I am sure members of the Committee have examples from their own constituency casework of the CSA getting a maintenance order figure wrong and, following a challenge, having to revise it.

My final question was also raised by Fathers for Justice. When a driving licence has been withdrawn, what action will the Department take if that parent loses his job or is unable to do his job? There have been examples of the withdrawal of licences having disastrous effects, not only in respect of people’s livelihood but in respect of their ability to see their children.

I shall be grateful if the Minister will answer those points.

Photo of Kitty Ussher Kitty Ussher Parliamentary Under-Secretary, Department for Work and Pensions

I am grateful for the opportunity to answer the points raised by the hon. Gentleman. On his final point, I am interested that he quotes evidence from Fathers for Justice; I do not see it particularly as a credible organisation, but obviously the hon. Gentleman does. I do not know whether he or Fathers for Justice have read the legislation, because the Bill makes it quite clear that, if the document concerned is required for the non-resident parent to earn his livelihood, it should never be removed; and if its removal would have an effect on the welfare of a child, whether it is the child in question or other children of whom he is the parent or with whom he is associated, then it will not be removed.

Moreover, the onus of proof will be on the commission to demonstrate that the parent is wilfully and culpably refusing to pay child maintenance. That is quite a high level of proof, and is one of the safeguards in the legislation showing that this provision will not be used willy-nilly by junior clerks in the organisation. There will be quite rigorous internal mechanisms, and the outstanding debt would have already been checked when the liability order was made—which must be done before tougher forms of enforcement can be considered.

The commission will obviously complete any outstanding maintenance assessment action on each individual case where it is relevant to the level of arrears. The caseworkers will be trained in the new legislation to guide them in the decision-making process. The non-resident parent will have been given notice of the fact that a liability order is being considered, and they will have the opportunity at that stage to make representations. So if an error has been made, or if they fall into one of the categories on the face of the Bill, they will have an opportunity to pick that up at an early stage. I am therefore certain that this is not something that will be used lightly or inappropriately, and I wish Fathers for Justice had the same view.

The hon. Gentleman’s first point related to the history of last year’s child maintenance legislation. We did say that we would continue to consider which decisions needed to be made by the courts, and which needed to be made administratively. In the intervening period of time, more international evidence has come to light that makes it clear that it is an extremely effective policy. Between July 2006 and August 2008, for example—this is extra data that we did not have during the passage of the previous legislation—an additional 11 million Australian dollars was collected in child maintenance payments brought about by the use of around 1,800 prohibition orders relating to Australian travel documents. A review of a sample of 124 cases where such an order had been made indicated that 88 per cent. of customers had continued to pay the right amount of child support 12 months after the order had been lifted, whereas they had previously simply disengaged with the process.

We think that makes the case for legislating even clearer than before. But I also have to say—I am repeating the point made by my right hon. Friend the Secretary of State—that, in a sense, we had no option but to withdraw our proposals on administrative disqualification of a travel document, because the main Opposition party had made it quite clear that it would not support the rest of the Bill unless that was removed. There was a touch of realpolitik in it that was extremely regrettable. I am very glad that the main Opposition party now appears to have done an elegant U-turn, hopefully enabling this clause to go through. I hope that that is sufficient to allow the Committee to agree to clause 40.

Question put and agreed to.

Clause 40 accordingly ordered to stand part of the Bill.

Schedule 5 agreed to.

Clauses 41 and 42 ordered to stand part of the Bill.