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Welfare Reform Bill

Volume 689: debated on Wednesday 28 February 2007

(Second Day)

If there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Clause 8 [Limited capability for work]:

32: Clause 8 , page 6, line 17, at end insert—

“( ) provide for the presence of an intermediary in necessary cases;”

The noble Lord said: I start the afternoon in a happy frame of mind with a very brief series of amendments. In moving this amendment, I shall speak also to Amendments Nos. 44, 54, 64 and 71—I hope that I got that right this time; I obviously got it wrong towards the end of our previous sitting.

These amendments are intended primarily to confirm what the Minister stated at Second Reading about having a supportive representative at assessments and interviews. I observe that a different Minister will respond to this amendment—and perhaps to the rest of Part 1; who can tell? I am glad that the Government intend to allow a claimant to bring someone along to support them at what could be a stressful and difficult time. There are practical advantages. A blind person who does not know how to read Braille might, for example, prefer to have someone they know rather than a stranger read for them. Similarly, those suffering mental disabilities or learning difficulties might be reassured by the presence of someone familiar. I am glad that the Government appreciate the benefits of having an intermediary and am interested to learn how, as the noble Lord, Lord McKenzie, stated, the Government intend to “encourage” representatives to attend. Do they also intend to continue allowing the presence of an intermediary at work-related interviews, or do they intend to restrict them to assessments only? I beg to move.

The noble Lord has once again raised an interesting matter. Will this include someone with literacy difficulties, such as dyslexia, or who has failed to achieve certain academic standards? In either case, allowing a person to have someone present whom they trust to help, as opposed to an official, would be beneficial. I raise this as a result of a visit I made to Chelmsford prison, where there are many people with very poor literacy, due mainly to dyslexia. They said that one of their difficulties was the inability to admit the problem, which immediately placed them in a confrontational situation that was exacerbated by some of the guards. This may be slightly off the Minister’s brief but such people will go through this system and if we fail them, we will fail a large number who will make their small contribution to the reoffending rate. It would be helpful if we could have guidance about how someone could be brought in, often in an informal manner, to help them through these interviews; that might also allay concerns I may have about later parts of the Bill.

I hope to start this afternoon by being quite brief. I recognise the noble Lord’s concern for the well-being of vulnerable customers. That underlies these amendments, which make provision for an intermediary in necessary cases. I hope that I can persuade noble Lords of the Government’s intentions about encouraging intermediaries or advocates to accompany any employment and support allowance customer.

Considering first the personal capability assessment, we all agree that it is important to gather the right evidence during any stage of the PCA process, whether they determined limited capability for work, limited capability for work-related activity or the work-focused health-related assessment. That is necessary to allow an accurate assessment of the customer's functional limitations and capability.

The need to gather appropriate information also extends to the face-to-face medical examination and the work-focused health-related assessment part of the process. To identify the health interventions that would help the customer into work, we need to have accurate information. Indeed, for this part of the process, the customer's perception of the effect of his or her condition is a key part of the assessment. Healthcare professionals carrying out PCA examinations will be trained, among other things, in appropriate interview techniques, and how to treat customers sensitively and with empathy.

Of course, people with mental health problems or a learning disability, for instance, may find it very difficult to articulate at a face-to-face interview the full extent of their difficulties. We do not want anybody to lose out on benefit entitlement because they cannot give an accurate picture of themselves, their condition and the limitations that it places on their functional ability.

It is entirely reasonable that such people or any other customer should be able to make use of a spokesperson on their behalf: perhaps a member of their family, or a care worker who knows them well. As the noble Lord, Lord Skelmersdale, said, my noble friend Lord McKenzie made it clear during Second Reading on 29 January that the facility for them or any customer to do so already exists. It is already established practice in all examination centres. Customers are informed—I think this is what the noble Lord, Lord Addington, was looking for—when their appointment is confirmed that they can bring a representative or companion with them if they wish.

On work-focused interviews and work-related activity, we will build on our good practice in Pathways areas. There, we encourage intermediaries to join customers when they engage in help and support. We also take steps to make sure that our customers can access our services. In introducing work-related activity, we will build on the support in place in Pathways to Work areas and we will ensure that similar procedures are in place as now. We will also continue to consider how best all our services can be accessed by all customers and, where necessary, we will not hesitate to review procedures.

My note reminds me to add that, yes, anyone can have a representative at any of the interviews that I mentioned. I hope that the Committee will be reassured to know that the presence of intermediaries is both firmly embedded in the normal procedures for providing help and support during the PCA and in Pathways currently, and an integral part of our plans for the future. It is not necessary to make provision for this in the Bill, as the amendments would do, but I welcome the opportunity to put that on record. I urge the noble Lord to withdraw the amendment.

this is an important amendment and I support it. The problem is that the provisions are currently deeply embedded in the documentation. Language difficulties make the situation even more difficult. At the moment, customers—claimants—“can” and “may” bring intermediaries but, because the Bill is introducing a significant cultural change, we should move the system from “can” to “should”. We should encourage people to bring buddies or members of the family with them at all times. Research shows that when people are in a situation with which they are more comfortable, the system has a much better chance of getting the best quality evidence, which it needs to discharge the application. It is not just about ethnic minorities who have difficulty with comprehension of the language; nor is it about medical physical disabilities; it is actually a cultural shift.

The guidance given in advance of this change must make it clear that people should be encouraged to bring people with them. If you are in any doubt, or you are just feeling nervous about confronting bureaucracy, you should be encouraged; there should not be a permissive power embedded in the fine print. That is a very, very important part of getting this reform right. There is a danger that the officials may think, “Well, we’ve got this covered, because it has always been there and there is nothing wrong with it”. In the past it served well, but the situation is so changed and so complicated that it would pay dividends, and would cost the department nothing at all, to encourage people and to say to them, “You will bring someone with you if you are unsure”. That approach would be a much more positive way of getting the results that we are all trying to seek in this reform.

I support that strongly. It reminds me that in tribunal hearings, if an applicant has a friend or buddy with them, the success rate shoots up—it is significantly higher.

It is 70 per cent, compared with 50 per cent. We are talking here about entitlement to benefits, which is of tremendous importance to the individual. The noble Lord, Lord Kirkwood, has made an important point.

I would support the sentiments behind the noble Lord’s comments. The point that I was trying to make from my speaking notes is that it essential that the best information possible is obtained from customers through the PCA process. If they need and want to have someone with them to support them in that process, there will be a much more successful information-gathering process. We are talking about an enormous cultural change. There will be significant developments in terms of training, personal advisers and other people who undertake the interviews.

It is important to ensure that we are not prescriptive about people having to bring someone with them; sometimes people will not wish to do so. Customers must be made aware when their appointment is being arranged that they can, and are welcome to, bring someone with them to support them. I support the sentiments behind the comments that have been made and it is important that that is put on the record.

It occurs to me that we are all singing from roughly the same hymn-sheet—which is very healthy. The noble Lord, Lord Kirkwood, supported by the noble Baroness, Lady Meacher, said that all this was deeply embedded in the system. The trouble is that it is so deeply embedded that it has become rather obscure over the years, and I am delighted that the Minister has been able to say that in the call for the primary interview, it will be pointed out that the person may bring a friend—I would say, “intermediary”—with them. My only question to the noble Baroness is: how will that point be made? Will the call for interview be in writing or by telephone? If it is by telephone, it is much less likely that permission to have an intermediary will be given on every occasion.

In truth, we have said—or are going to say—that it is important that communication with customers is tailored towards the customers’ needs. Unless I am corrected, I am not sure that we are being prescriptive in that; but I will come back to that matter if I am wrong.

I am grateful to the noble Baroness. As I said, we are all close to singing from the same hymn-sheet. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

33: Clause 8 , page 6, line 17, at end insert—

“( ) make provision as to the timing of the assessment in relation to the assessment under section 9.”

The noble Lord said: I am afraid that we now have the exact opposite. The amendment is far from a quickie, and I apologise in advance for the length of my remarks. I shall speak to Amendment No. 41 as well.

Since carefully reading the debates we had on the first day of Committee, I am aware of the misapprehension I was under when I drafted the amendments. As Ministers will have realised, an amendment to Clause 10 is missing. The ones I have tabled, however, refer to the two strands of the PCA. Amendment No. 33 relates to assessing limitations for work in Clause 8 and Amendment No. 41 relates to assessing limitations for work-related activity in Clause 9. When I tabled the amendments, I was under the impression that these were the two tests that were to be taken on the same day and were causing lobby groups so much worry. I now understand that my amendments should have included the assessment in Clause 10, which deals with work-focused, health-related matters.

Given the enormous confusion that this area of the Bill has led to, I hope Members of the Committee will forgive me if I take a moment to set out my understanding of the assessments in the hope that if I am still mistaken in any aspect of them, the Minister will take the opportunity to correct me. Otherwise, we will have a very long Report stage.

The first interview, or test, is to contain the two assessments laid out in Clauses 8 and 9, each assessment being undertaken by a trained healthcare professional appointed by the Secretary of State, and one taken immediately after the other. This work, I understand from the Minister’s letter of 23 February, is to be contracted out to Atos Origin, the same firm which has designed the computer system and whose staff are to be—or are they already?—trained as healthcare professionals.

This first interview’s primary purpose—possibly its only one—is to assess whether a claimant is eligible for ESA by means of assessing the effect of a long list of fairly general descriptors and whether that same claimant is eligible for the support group by means of a list of 46 functional descriptors. So far. so good.

My understanding of the second interview is a little less clear. This interview will be the first introduction to the work-related activities in which the majority of claimants will be expected to participate. The Government appear to be favouring the idea of having this interview on the same day as the first one to reduce the inconvenience of travelling to the testing centre but also to allow the benefit provider to introduce the claimant to the new system as soon as possible and start early intervention to overcome any barriers to work or work-related activities there might be.

I hope that the above explanation of the assessment is correct and look forward to any clarification that is necessary. However, this explanation raises many more questions, as does much of what we heard on the first day. The noble Lord, Lord McKenzie, explained at cols. 49 to 52 that the second interview—the work-focused, health-related assessment—will be undertaken by a healthcare professional. Information from this assessment will then be provided to the personal adviser who will have different and appropriate skills in overcoming societal barriers, low self-confidence in knowledge of the work available in the area, and so on. That is in marked contrast to what his colleague, Mr Murphy, explained on Monday to the All-Party Group on Disability, when he said that the second assessment would not be undertaken by a healthcare professional but instead would be an opportunity for an employment adviser to become involved.

I am sure that I am not the only Member of the Committee who is confused on this issue. Who are we to believe? Are the Government still undecided who will conduct the work-focused interview? It would be helpful if we could have a definitive statement. I, for one, do not want to have to return to this matter on Report.

The confusion becomes even deeper when we return to how the decision-maker will make his final decision. From what Government officials had said, I was under the impression that information from both interviews would be considered relevant to the eligibility status of the claimant. But if, as I understood the Minister to say last week, a decision on the eligibility of the claimant to the higher support rate is made immediately after the questionnaire and the original interview have been completed, that cannot be right. Which of these is correct? Or will it merely be information from the assessments as laid out in Clauses 8 and 9, as common-sense would suggest?

I am afraid I also have many questions about the decision-maker. Although I asked them last week, they were not answered satisfactorily. I shall have another go. It appears that the decision-maker will take all relevant information and evidence, the notes from at least the first assessment, any information from the claimant’s doctor and so forth, and make the final assessment without ever having met the claimant. Will he be making decisions only on borderline cases? What qualifications will the decision-maker have and how will he or she be chosen? How many of these decision-makers are the Government planning to have? Will there be one for every jobcentre office or will they have little contact with the assessors, let alone the claimants? These questions are critical to the understanding of my two amendments. I seek to maintain some distance between the first interview—I am avoiding the word “assessment” deliberately—in order to distinguish between the three clauses and the two interviews, and the second one.

I think the Government have indicated that it is their intention to hold these two tests, should they be deemed necessary, in as short a time as possible, one immediately following the other early in the 13-week assessment phase. This has caused considerable concern, especially among those working with mentally disabled people who are worried about the possible effect this could have on a claimant. They point out that the first test will be focused on what a claimant cannot do, whereas the second test is designed to look at what he can do. Even if the second test will have no effect on his eligibility, confusion about what it will have an effect on could lead to considerable stress. A claimant may very easily become concerned about being too optimistic in the second test about what work-related activities he could undertake, which would lead the decision-maker to doubt how sincere he was about his limitations in the first test.

I understand the Government’s point that many people with disabilities would prefer not to have to make two journeys when one would do. If a claimant has limited mobility, they would probably rather the interviews happened on a single day, as the Government have suggested. However, this will not be true for everyone. Some may find the interviews exhausting or stressful and would prefer to spread the load over a few days. Can the Government commit to a more flexible timetabling of these interviews where the claimant will be able to signal a preference for having the two tests on the same day or otherwise, as appropriate?

I am afraid there is a further point I wish to make: the Government have indicated that some claimants will evidently be unable to attend either of the face-to-face assessments. This could be because they are confined to hospital. In these cases, written evidence from their doctor will be sufficient for them to be moved straight into the support group. There is some confusion over how widely this will be applied. Will it be the decision-maker who judges the written evidence and makes the decision that further assessments will not be necessary? If not, who will do this? Can the Government explain what criteria will be set for this to happen? Will it only be for those with severe physical disabilities or will those with certain mental illnesses also be considered?

This Committee stage has been, is, and will be dominated by probing amendments. It is unfortunate that although the Bill was discussed in another place for so long, I for one still do not have a clear picture of the system the Government want to set up. I hope that the Minister’s response will clear up the confusions in this area once and for all and I apologise for having felt the need to speak for quite as long on quite so many matters. I beg to move.

I fear that I shall repeat much of what the noble Lord, Lord Skelmersdale, has just said, as I too have quite a few questions about this matter. As he said, there are arguments going both ways as to whether having the two assessments together is a good thing. Citizens advice bureaux have wide experience to draw on in this area and they think that it is unsatisfactory because of the different purposes of the two assessments. However, for any disabled person who is travelling a long way to be assessed, having the two tests on the same day could be beneficial, as the noble Lord said. But for others, it could be confusing and worrying and it may sow distrust between claimants and their personal advisers.

We now have a copy of the letter which the Minister wrote to the noble Lord, Lord Skelmersdale, about this matter after the Bill’s first day in Committee, from which I gather that the pilot of the work-focused health-related assessment, to be started later this year, will help determine whether the same healthcare professional carries out both health assessments or whether they will be carried out by two different people—I think that that is right. However, what about the decision maker? Will that be the same person? Would any part of the first part of the PCA inform the second work-focused, health-related test? Surely the decision on the first test of the PCA would not always be made immediately, so it would not always be clear whether the second work-focused health assessment was necessary. What would be the point of the second test if it was obvious that the claimant was likely to become a member of the support group?

I was going to ask whether a doctor carrying out the second assessment would necessarily be qualified to assess work capabilities and rehabilitational needs, but we now discover that the second test will be carried out by healthcare professionals who will have “health-related” skills. The letter states that they will focus on “health interventions”, so my next question is still relevant. Is a medically led work-focused, health-related assessment necessarily the best way of understanding a person’s anxieties as well as ambitions?

I was also concerned by the sentence in the letter which stated that occupational physicians very often discuss an employee’s sickness absence and the steps that can be taken to get the employee back to work, but a short-term sickness absence is very different from a long-term disability. Above all, those who undergo both tests should be dealt with sensitively and with clear explanations given about the purpose of each test.

I hope that I will be able to clear up some of the questions around the timing of assessments. In addition to making my remarks today, it would perhaps be sensible for me to write to Members of the Committee after this sitting so that we can be as helpful and as clear as possible.

The revised PCA will assess three separate, closely related things, as the noble Lord, Lord Skelmersdale, has already suggested: limited capability for work; limited capability for work-related activity; and the work-focused health-related assessment. These three assessments deal with different issues and consequences. The first deals with entitlement to employment and support allowance generally; the second deals with whether a person will receive either the support component or the work-related activity component; and the third identifies the residual capability that a person may have and how best to help them build and improve those capabilities.

As these three assessments test three different things and provide for different consequences, they must be set out, as we have already noted, in different clauses in the Bill, and the Bill must identify them as separate assessments. In practice, however, they will operate as three different strands of one overall assessment process. We have no wish to place additional burdens on our customers by requiring them to attend multiple examinations if that can be avoided. The Committee has already noted that point.

It is our intention that both the assessment of limited capability for work and the assessment of limited capability for work-related activity will be carried out during the assessment phase. That is to ensure that those customers who are eligible for the work-related activity component or the support component get the rate they are entitled to as soon as the assessment phase comes to an end, without delay.

To pick up on a point made by the noble Lord, Lord Skelmersdale, there will be flexibility about the timing of the work-related health-focused assessment. That is an important point to note. We believe that we will be able to identify the vast majority of people with limited capability for work-related activity; that is, those who are going into the support group on the basis of paper evidence. Those people will not then be required to go on and have the final part of the assessment. However, we cannot be confident of identifying everyone in that way. We will therefore need to be free to arrange a medical examination to determine the limited capability for work-related activity. That is to ensure that no one is unfairly denied access to the support group.

Where we need to examine a customer to test whether or not he has limited capability for work under Clause 8 and we also need to examine him to test whether he has limited capability for work-related activity under Clause 9, the customer will, as I have said, be called to a single appointment. Both assessments will be carried out at the same time in one single examination, with the same healthcare professional. From the customer’s perspective it will be a single, seamless process.

I shall pick up on some of the important points that have been raised. First, with regard to Atos doctors, as I think I have referred to them in the past, Atos employs trained healthcare professionals on a contract basis. My honourable friend Jim Murphy was talking in another place about another phase of the whole process that we have not discussed in this mini-debate; that is, the work-focused interview. That will be undertaken by the personal adviser, not a healthcare professional. That is the person who has the ongoing customer-handling relationship in Jobcentre Plus.

My memory being such, can I stop the Minister there? Is it only the personal adviser who has been appointed, and perhaps an intermediary, who will be present with the claimant at that meeting?

At the work-focused interview? Yes, it is the personal adviser plus their intermediary. Just for the record, the work-focused health-related assessment will be conducted by a healthcare professional, ideally with an occupational health background.

Decision-makers are employees of Jobcentre Plus. They have the delegated responsibility from the Secretary of State to apply the law in making decisions about benefit entitlement. If noble Lords will forgive me for going into a bit of detail here, decisions on claim and applications are made by the Secretary of State. Jobcentre Plus discharges the Secretary of State’s decision-making role to a suitably trained member of staff, known as a “decision-maker”. Routine, straightforward decisions, such as the gathering of information to complete claims, are made on Jobcentre Plus sites. However, more complex decisions—for example, benefit suspension—will be made by a smaller number of more highly trained staff in the benefit delivery centre. Those specialist decision-makers have greater experience and specialise in particular benefits. The important point to make here is that those decision-makers are experts in the application of knowledge about benefits; they are not healthcare professionals. They know about entitlement and how entitlement decisions should be made. They use the reports given to them by Atos Origin healthcare professionals to make decisions. I hope we are getting there on that. Reading the Bill, I appreciate how difficult it is to get a picture of how it will work. I apologise if it is not coming across as simply as possible.

The noble Baroness, Lady Thomas, asked whether the timing of the work-focused, health-related assessment might cause a conflict of interest between customers. I would argue that that will not happen. The work-focused, health-related assessment is a key development that will transform the PCA from a negative assessment focusing simply on functional limitations to a more positive one focusing on residual capability and how it might be improved. The work-focused, health-related assessment will advise the personal adviser looking after the customer on the kinds of health-related interventions that would benefit the customer, such as a condition-management programme. It will enable the adviser to ensure that the customer sees results. I think that it is a really positive move.

I apologise for speaking at such length. The noble Lord, Lord Skelmersdale, picked up on the role of the decision-maker—I think I have already covered that—and the issue of flexibility in applying Clause 9. As I said, based on the customers’ specific health needs at the time, we can be flexible about the timing of appointments for the work-focused, health-related assessment that happens after the first joint Clause 8 and Clause 9 assessment. I therefore urge the noble Lord to withdraw the amendment.

The noble Baroness talked a good deal about “healthcare professionals”—a phrase that recurs a good deal in the Bill. I may be old-fashioned, but I know what a doctor is and a nurse is. I even know what an occupational therapist is. But what is the definition of “a healthcare professional” in the Bill? Is a certain amount of specific training and experience required? I will understand if the noble Baroness prefers to write to me on that. It is important that we know exactly what constitutes a healthcare professional.

Perhaps I could ask one or two questions. The Minister is doing extremely well explaining a very difficult set of circumstances, so she should not feel held back in any way. I think that we are all struggling with this. Incidentally, she provoked in my mind a question which, although it refers to Clause 8, is none the less important.

I refer to the derogated authority and duty given to the personal adviser to make the decision. In some of the early models—way back in the ONE programme, the original pilot back in the late 1980s for Pathways to Work—consideration was given to outsourcing this element of the programme all the way down to the personal adviser level. You could use the word “privatising” if you wanted to use slightly more pejorative language. Some of the Bill’s later provisions contemplate making substantial and challenging changes. Are the Government suggesting that this responsibility will be discharged by personal advisers who are anything other than fully paid-up and signed-up civil servants in Jobcentre Plus offices? The advisers will be performing a very onerous and important duty.

I am asking questions under this group of amendments for the following reason. If we disaggregate the different aspects of the PCA and address them under Clause 8, on capability for work, or Clause 9, on capability for work-related activity, the danger is that the psycho-social dimension will be lost to the medical assessment although it is so important in making the change work. I understand all this talk about “health professionals” and agree it is better if they are doctors. But whoever is trained and asked to discharge this duty and consider these questions should not—and must not if this is to succeed—be restricted to a medical assessment per se. There must be a much more broadly based assessment of what is going on.

If Clauses 8 and 9 are separated, I think that the psycho-social dimension goes down the middle. There is a real danger that, if this is compartmentalised and it is all done by healthcare professionals who think that they have to address restricted areas of the overarching question, then the very important and ground-breaking work will be lost. I refer to work that is done, for example, at the unit at Cardiff University run by Mansell Aylward. The department knows him well because he used to be the medical director and so he should know a thing or two about some of this stuff. He has been doing very important work that underscores the importance of a holistic approach and not one where everything is separated out into different little bits and allocated to health professionals, who all think that they are doing the right bit according to the British Pharmacopoeia or whatever. You lose the overarching importance of getting the totality of the question confronting the individual properly addressed in the original information-gathering process.

Before the noble Baroness answers that, the noble Lord, Lord Kirkwood, has made a very valid point. We will shortly move on to Clauses 10 to 15, which concern conditionality. One worry—certainly it is a concern of mine, my noble friends and indeed the Joint Committee on Human Rights and others—is that conditionality might depend on a decision by someone who is not a direct employee but, rather, a contracted-out employee of the Secretary of State. That would be wrong, and perhaps the noble Baroness will include it in her thinking.

So much to say, so many pieces of paper. The definition of a health professional is picked up on page 21 of the regulations. I shall not read it out but it is helpfully defined there, and it is useful to have that brought to our attention.

To pick up on the question of the psycho-social dimension, I think that the drafting requirements of the Bill conspire against us in having to compartmentalise out.

I know, and that is why I am trying to make the description as clear as possible. It is very important that, from the customer’s point of view, the assessment is one process and that it is conducted sensitively and very much tailored to the customer’s needs—he may need someone to accompany him to the interview or he may need help in understanding the implications of the information that he is given. However, I cannot over-emphasise the importance of the role of the personal adviser. It is important that we do not confuse that with the role of the decision-maker, to which the noble Lord, Lord Skelmersdale, referred. The person who makes the decision is employed by Jobcentre Plus and has a responsibility delegated by the Secretary of State to make decisions about entitlement. That is the “techie” making the decision.

The relationship with the customer takes place through the personal adviser. The personal adviser, who will stay with the customer throughout his journey, could well be contracted out and will receive specific training. The person who understands the needs of the customer and receives information from the work-related health assessment can identify what will make a difference for the customer and help him to get closer to the workplace. I hope that, by explaining the difference between the decision-maker and the personal adviser, I have helped the Committee.

With regard to Cardiff University, great note is taken of the work that the noble Lord, Lord Kirkwood, highlighted. There is a wide body of research that we will discuss later today. The department is very committed to promoting independent research, evaluating the effect of the pilots and new initiatives as they roll out, and indeed learning and ensuring that that learning is not wasted. I hope that in my answer I have covered the questions that were raised and that it is clear that I recognise the importance of this debate.

I am very grateful to the noble Baroness for pointing out that the definition of a healthcare professional is on page 21 of the draft statutory instrument. It might be helpful to the Committee and to her if I read out what it says:

“‘health care professional’ means a member of a profession (whether or not regulated by, or by virtue of, any enactment) which is concerned (wholly or partly) with the physical or mental health of individuals”.

What on earth does that mean? “By virtue of any enactment or not” presumably means that they do not have to have any professional qualifications. I think that that needs to be reviewed carefully. For example, I should have thought that Miss Carole Caplin doing whatever she does for Cherie Blair would qualify, and I should even have thought that you could argue that any masseur would qualify. I do not think that the definition is good enough. I ask the Minister to have a look at it and to come forward with a proper and more detailed definition.

The noble Lord, Lord Oakeshott, will have plenty of time because Amendment No. 111 in the Marshalled List deals precisely with his point. It might be a little confusing for all of us if he were to be answered now; perhaps he will agree to wait. I do not know what the Minister thinks.

I am very happy to support the suggestion of the noble Lord, Lord Skelmersdale, but of course I take the point very seriously. I will do as the noble Lord suggests and come back to the Committee.

To round off this discussion, I was absolutely delighted to listen to the Minister, who, second time around, to my mind made a rather better fist of things than did her temporary boss.

That is an expression that noble Lords may have heard me use before, because all politicians are temporary at all times, so the noble Lord, Lord McKenzie, should not take that remark amiss. As I said, I thought that she made a far better fist of it; perhaps it is easier the second time around and easier also for officials to get behind the purport of my sometimes rather obscure questions. If they are obscure, I apologise.

I am also very pleased that the noble Baroness offered to write a letter setting out in a slightly abbreviated form what she has just said; for example, that the support entitlement and residual capability will be comprised in the shape of one interview. That is important. I do not think any of us understood that; I most certainly did not.

I am delighted to hear that decision-makers are civil servants. I am not sure that many people in jobcentres would appreciate reading the noble Baroness’s extemporary remarks describing them as “techies”, but be that as it may. The more complex decisions in benefit delivery centres are not to be contracted out, and that is a great relief. I am also delighted about the flexibility of the interview timing, which, as I pointed out when I spoke originally, many people feel is extremely important, whether it is to be extensive or intensive. Different people will have different views and different needs, and I am glad that the department appreciates that.

I think that I finally have this matter straight and, on that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

34: Clause 8 , page 6, line 22, at end insert—

“( ) as to the duties of third parties to provide relevant information and evidence and the manner in which it is to be provided;”

The noble Baroness said: I shall also speak to Amendment No. 35. The purpose of Amendment No. 34 is to ensure that doctors or consultants—I was going to say “relevant healthcare professionals” but I changed it—provide the necessary information in a timely manner. As many as 30 per cent of reports about claimants from GPs are not returned in time for them to be considered during their PCA. If the report arrives after the PCA has been carried out but before the decision-maker has made the decision based on the PCA, the GP’s late report will be taken into account. But the decision-making process will not be held up, I gather, to await the GP’s report. However, if the decision is appealed, the report will be taken into account. Surely more effort should be taken to make sure that the GP’s report, or consultant’s report, is received by the time the PCA is undertaken. GPs have 10 working days in which to return the form. The average GP will receive only about one or two such requests a week, if that.

The other matter I am concerned about is the up-to-date examination by the GP of the claimant. Although GPs are asked on the form when they last saw their patient, I wonder whether their reply is taken into account and whether they should be given more time to examine their patient if that patient has not been seen recently. The reason it is important for this matter to be addressed is that there are a great number of appeals, many of which are successful. If the rules were tightened for a swift return of the GP’s form, or for an extra few days to be allowed solely to enable the patient to be examined by the GP, much time, effort and money could be saved. I beg to move.

I give modified support to the amendment because the GP’s letter will be vital. It occurred to me to wonder, rather than having the GP’s or the consultant’s letter subsequent to the application and the first—possibly the only—interview, why should not the claimant be armed with it when he first attends?

The amendments are concerned with the requirements on third parties to provide the Department for Work and Pensions with information. The noble Baroness, Lady Thomas, has proposed amendments inserting a power to impose duties on third parties to provide the department with relevant information and evidence to support the PCA process.

We already have legislation which imposes duties on general practitioners and employers to provide information in relation to claims for incapacity benefit. GP obligations to provide information are contained in their contract, the content of which is set out in the National Health Service (General Medical Services Contracts) Regulations 2004. We will make appropriate amendments to these regulations to provide for employment and support allowance. Meanwhile, we will be amending Sections 130 and 132 of the Social Security Administration Act 1992 to include employment and support allowance, ensuring that a duty is imposed on employers to provide us with information.

On the points the noble Baroness, Lady Thomas, made in moving the amendment, we recognise that a minority of GPs do not provide the information required, but we are working to explain the importance of this information and that it is in their patients’ best interests that they provide it quickly and accurately. We are also working to improve and simplify the forms and processes used to ease the burden on GPs, as they have an enormous work commitment.

We do not think that the amendment adds to what is already in place, but we understand the concerns behind it. There will be customers about whom we wish to request information from health professionals other than GPs, such as community psychiatric nurses, community-based physiotherapists or healthcare professionals working in clinics such as pain clinics. That important new development could be helpful to customers, particularly as experience has shown that those professionals are willing to supply that information when requested. In many cases, they will be better placed to provide updated information on their patients than the patients’ GPs, for the reasons that have already been stated.

We do not want to be prescriptive about how this information is gathered and we want to retain the freedom to contact different individuals and organisations in different ways, depending on the circumstances. It would not be possible to cover all eventualities in regulations, and doing that would restrict our ability to gather the information in the most appropriate and effective way and in the best interests of the customer. Furthermore, when considering the duties that we impose on third parties, we always need to balance the need for information against placing undue burdens on healthcare professionals or businesses.

I hope that I have given some reassurances to Members of the Committee on the matter and that they will not press their amendments.

Before the noble Baroness, Lady Thomas, withdraws her amendment, where in Schedule 3 is the alteration setting up the regulation to which she referred to? I am sure that someone behind her has the answer readily to hand. My second question refers specifically to the amendment. When is the medical information required? Is it after, during or before the interview? That was the original purport of my intervention.

Before the Minister replies and before I withdraw the amendment, perhaps I may say that I remain unhappy about the suggestion that the decision-making process may be held up if the GP’s report has not been received. That would be ridiculous. If a doctor has sat on by the report for, say, 10 days, he should be penalised.

We will have a further discussion on this matter later when we debate appeals. The issues that the noble Baroness raised will be picked up in our discussions about timely information gathering. On Schedule 3, perhaps I may give the noble Lord a note following this meeting of the Committee. No?

It sounds as if there is a certain amount of confusion. It was interesting that the Minister said that the department was working with doctors and at some stage I would be grateful to know exactly what that means. The situation is not satisfactory and all of this should not be left to the appeal process, because that would be expensive and a terrible waste of time. There must be some tightening up.

In terms of working with GPs and health professionals generally, ideas are being looked at for improving the flow of information, making forms easier, using electronic communication and working closely with GPs through the provision of information and training materials to help them to understand how they can help their patients by getting right behind this. That is the “carrot” side of things.

It is also possible, by monitoring the performance of GPs and involving Atos Origin doctors, to encourage them to speed up the process of information provision—and the department’s medical adviser could be brought in to encourage GPs and suggest that their PCT could be in touch with them with regard to their contractual obligations if they do not improve. All those discussions are going on to promote a positive engagement with GPs. So far as I am aware, they are doing quite well in promoting engagement. Of course, it is not just about GPs; other health professionals have an enormous amount to offer and have shown real willingness to engage and help their patients by providing ready information.

To answer the question of the noble Lord, Lord Skelmersdale, about when the information is required, it is mainly required before the assessment, but if it is required afterwards the decision-maker will take it into account, provided that the information is obtained in advance of a decision being made.

I am advised that we need a separate process for information to go from the GP to the Atos Origin doctor’s assessment.

I am sorry to plug away at this, but does that mean that the first interview will not normally be held until the information is received? Is that one of the reasons why the whole operation is to take 12 weeks?

I am advised that we have to be extremely mindful of the possibility of fraud if people bring information with them directly. There is a real need to ensure that there are auditable trails of communication between the healthcare professional and the assessment process.

I can understand that, but my supplementary question, if the Minister remembers it, was whether one of the reasons for the whole operation taking 12 weeks was that the first interview cannot be held until after the medical information is received direct from—the trouble is that we are talking about two different healthcare professionals, and it is getting very complicated—let us call this one the “medic”, and then perhaps we will be able to make some sort of distinction.

While the Minister is thinking about her reply, I have one quick question. Can the decision be overturned at any stage before an appeal? Suppose that the medical report comes in, let us say, five days after a decision has been made, can it be changed at that stage, or must it then wait for the long process of an appeal?

The point about the reassessment of claims before the appeal stage is important. One of the key issues, when we come on to talking about appeals, is that the department has been advised that it could be more vigorous about gathering information in advance of appeals. Guidance has been issued on that, in order to use all avenues to ensure that where new information becomes available following a decision, all opportunities for reassessment are taken in advance of appeals.

Coming back to the timing of the provision of information, of course it is ideal to have as much information as possible before the assessment in Clauses 8 and 9 takes place. There are lots of reasons why information may not become available after a person has experienced incapacity. It may take some time for that person to adjust to their new situation. Lots of factors may influence what brings them to make a claim. The ideal is to have as much information as possible at the point of assessment, but where that information is not available, ideally it will come into the system as quickly as possible to avoid it becoming available only after a decision, when there would be a reassessment.

The most important thing is that we encourage health professionals to understand the benefits to their patients of getting behind the flow of information and making it happen as quickly as possible. It is only by that engagement in the process and by making it as easy as possible for all the professionals involved, by the use of electronic media or simplified forms, that patients, who are customers in the benefits world, will be able to access benefits and support that, we hope, can make a real difference to their quality of life.

I thank the Minister very much for that long reply and the noble Lord, Lord Skelmersdale, for joining in what has been a useful debate. I do not think that I have heard the term reassessment before, which was very interesting. In the light of our full discussion, I beg leave to withdraw the amendment.

35: Clause 8 , page 6, line 25, at end insert—

“( ) as to the manner in which a person may be notified of a requirement to attend such a medical examination as the regulations may require.”

The noble Baroness said: I shall speak also to other amendments in the group.

The amendments, which are supported by a number of organisations, including Rethink, Mind and Mencap, are intended to ensure that claimants with mental health and other problems will not be denied full benefits because their symptoms result in communication or procedural failures. I should declare an interest because I am chairman of East London City Mental Health Trust. I am therefore aware of the impact of benefit failures for our service users and our staff.

I am so sorry, but I was mindful of the time. As has already been noted, the Welfare Reform Bill envisages that claimants will be invited to attend assessments and, if assessed as having limited capability for work but not limited capability for work-related activity, was subsequently be required to attend a series of work-focused interviews.

As someone who has had personal contact over many years with people with severe mental health problems, I confess to being very pessimistic about the likely consequences of that conditionality being attached to benefits for that group, despite the assurances given by the Minister in response to Amendment No. 32. I have no doubt that others, such as blind people, will also be extremely vulnerable in the new environment. However, I shall direct my remarks to people with mental health problems simply because that is where my experience lies.

That group has particular communication needs which present real challenges to benefit offices. I often think that I am glad that I am not one of the officers trying to tackle those very difficult problems. The reality at present is that Jobcentre Plus may be doing an excellent job with many of its clients but, sadly, it simply does not have the skills to deal effectively with people with mental health problems. Social workers tell me that they and others working in community mental health teams spend a great deal of their time troubleshooting—for example, preventing people being evicted from their homes because of the failures of the benefits system, principally arising from the communication failures between Jobcentre Plus staff and the claimant.

Service users’ symptoms or side-effects may leave them unable to focus on practical issues like the need for money or making sure that their rent has been paid. They may well fail to take the initiative to ask for a form to complete, to read the instructions or to fill in the form when it arrives. In short, people with mental health problems are unlikely to communicate consistently and effectively or to pursue the necessary set of procedures to attain what they need. Furthermore, people with severe mental illness may have an unexpected crisis on the day of an assessment or interview, and hence not turn up. If they are too ill to attend the interview, they almost certainly will not let anyone know why they have not arrived.

One of the most challenging problems for the benefits authorities is the fluctuation of symptoms. Perhaps people feel reasonably well on one day and will phone Jobcentre Plus to be told that they will be invited in for a medical assessment for benefits, but the next day they may become depressed again and for the succeeding week or weeks they may be in a bout of depressive illness and unable to function. But the jobcentre staff member has a note that the person phoned up and is due to come in for an assessment. All would seem to be well. When the claimant then fails to appear for the assessment and the jobcentre worker checks their notes, they are probably going to misconstrue the situation and the risk to the individual’s benefit is perfectly obvious. It is no one’s fault, but the system even as it stands does not cater for that kind of problem.

Even under the existing relatively benign system, problems arise when a service user changes their circumstances. That is a very particular point of difficulty. Perhaps, for example, they take up a job but fail to keep it and need to restore their benefits urgently. According to the linking rules, this should happen without a problem, and I am grateful to the Minister for his letter about those rules. However, I have to say that it does not actually address the issues I have raised about them, so perhaps we could have a discussion outside this Committee. The fact is that problems arise because the symptoms of the individual’s illness or the severe side-effects of the medication in the early stages of a relapse—when they have suddenly lost a job because they have become ill—mean that they do not answer letters or respond to phone calls, and the benefits are simply not paid. Too often, what actually happens is that the landlord threatens eviction, and on we go from there. Social services are contacted, or indeed members of my staff.

However, my big worry is that communication failures under the new system will create this kind of life crisis without there being any change in an individual’s circumstances. If they get to the point of receiving benefits, there will then be yet another interview, another challenge and another set of hurdles. So one of my concerns is the sheer number of actions and contacts that will be necessary in order to achieve and then retain an adequate income from the new ESA. Every claimant will have to negotiate one or more work-focused and health-related assessment, work-focused interviews once a month, and in time to arrange and attend work-focused activities. In our world, you have to break all that down and think of how many activities each of those things involves: responding to a phone call, opening a letter, reading the instructions, filling in a form, finding an envelope and a stamp to go on it, remembering to post the letter when all that has been done—if the individual ever reaches the point of doing it. These are actions which most of us hopefully can manage without too much difficulty, but you have to consider all of them as risk points every time there is a requirement for an interview or other action. In a bureaucratic world, we can simply forget the enormity of all this.

The methods of notification and communication will need to be sensitive, repeated where necessary, and involve checks to ensure that the claimant has really understood the position and is well enough to take the requested actions. To do this properly will require even more resources than the Pathways to Work pilots which, although as all noble Lords know, have been successful for a lot of people with physical challenges, have not been successful for those with mental health problems. It seems that there will be one of two outcomes: either people’s benefit will be set at or reduced to the jobseeker’s allowance, simply because they will fail this whole gamut of measures; or they may be granted employment and support allowance and then simply be neglected by the contractors who take on this work. In the latter case they will presumably remain on benefit indefinitely without any kind of help. But let us assume for a moment that the contractors will attempt to engage with this client group, in which case a failure to undertake any one of the actions that I have referred to will potentially put the claimant’s benefit in jeopardy.

I return to my conversation with the Jobcentre Plus manager responsible for operating this system. I hope that noble Lords will forgive my returning to this—I mentioned it on Second Reading—but it is so relevant to what we are talking about now. When I asked her what happens to people with mental health problems when they come to her needing to restore their benefit, she said: “Quite honestly, what usually happens is that the police pick them up and they are taken back to hospital. We cannot really help. We don’t understand mental problems. There is no doubt that mentally ill people really suffer in the system”. She was referring to the current system without the conditionality envisaged in the Bill and without these repeated requirements to attend at various junctures for various assessments and interviews.

We should be aware that even those who are ultimately judged as entitled to membership of the support group, and thus not subject to any conditionality, may nevertheless, as I understand it, be required to undertake a work-focused interview after eight weeks—I think that that is correct. These will be severely disabled claimants, yet they too must show good cause—within five days, as I understand it—why they failed to comply with those requirements. Perhaps the Minister can assure us that a failure to comply with that requirement will not affect the support group benefit to which they have been assessed as entitled.

I certainly acknowledge that the answers to these problems are not straightforward. Only sustained personal contact and home visits will protect this group; and yet we know that that means resources, and we know that the DWP is facing a 5 per cent budget cut. So if conditionality is applied to vulnerable groups including people with mental health problems, I hope that the Minister can assure the Committee that the system will take account of the disabilities of the claimant and that he will give serious consideration to these amendments. I beg to move.

From these Benches we support this large group of amendments. I shall speak specifically to Amendment No. 35 and then to Amendment No. 36 onwards.

I shall address the notifications point first. It is a truism, as the noble Baroness said, to say that people with severe mental illness have particular communication needs that must be respected to ensure that they receive the information they require and to ensure that unnecessary stress and anxiety are not caused by DWP communications as that may lead to relapse. One claimant commented:

“In fact, the DWP kept me in the dark, delaying my benefit without telling me why”.

Another example is the Saturday problem. People with mental illness report that receiving a letter on a Saturday causes particular problems because offices offering support are closed on Saturdays. Poor communication was identified in some of the Pathway pilots.

Turning to the “good cause” provision, we come to a particularly important part of the Bill. Amendment No. 36 simply states that the reason certain actions have not been carried out might be due to a person’s limited physical or mental functioning. The whole concept of “good cause” needs to be thoroughly examined. It is an extremely worrying aspect of the Bill. In Committee in another place, it was said that the Government intend to set out in regulations the matters that will be taken into account when determining whether a claimant has shown good cause, although the list will not be exhaustive. Although flexibility is welcome, some factors must be taken into account. As the noble Baroness said—I am repeating a lot of what she said—people with mental illness may not open letters or answer the telephone, due not to ill will but to forgetfulness, anxiety or fear, some of which may be associated with the side effects of medication. They may thus be unaware that they should attend a medical examination, or they may be particularly unwell on the day on which they are supposed to be examined.

Both Rethink and Mind are emphatic in their belief that regulations should specifically exempt people from having their entitlement revoked due to non-attendance, if this is due to a health condition. If this does not happen, and such a person is sanctioned, it is more than likely that that person’s health will worsen through worry and stress about income, moving them even further from the labour market. There is also a concern that DWP staff are not necessarily good at recognising people with mental illness, and they may dismiss such people as lazy rather than in need of understanding and support. We are calling not for a long list of conditions defining good cause but for the basic principle to be acknowledged that a person’s non-compliance with conditions of entitlement may be due to his or her mental illness.

I wholeheartedly support the amendment, which goes right to the heart of what I have been saying for years about people with ME or CFS. I am sure that the Minister and other noble Lords do not want to be tired by me telling them once again what I believe about these people, who suffer from a fluctuating illness. The stress and pressure of having to fill in forms can sometimes be too exhausting for them, and they simply cannot cope. They then take to their beds and eventually die because they cannot get any income, food or support. I therefore wholeheartedly support the amendment.

I add my voice in support of the amendment, on which the noble Baroness, Lady Meacher, has expounded so excellently. I shall not go on at length. As a general psychiatrist, one is subjected to the often ongoing saga of someone attempting to get benefits and their constant failures to turn up at the right time, creating enormous frustration for those who are trying to provide care for them. The Bill has the potential to help enormous numbers of people with mental health problems to get back into work-related activities and work. For that reason, we broadly support it. However, for those with serious ongoing mental health problems, it is a big mistake to put this barrier—this conditionality—in the way of getting people into the system so that they can be reassured by it and feel confident so that they can gradually get back to work. I very much support the amendment tabled by the noble Baroness, Lady Meacher.

I shall briefly add my voice to this. One of the problems with this group of amendments is the incredible diversity of the issues. Off the top of my head, I would say that mental health is probably the best example. Virtually every other disabled group will have some type of problem. My expertise, such as it is, involves those with literacy problems, including dyslexia. Someone with a bad short-term memory who is bad at reading letters and who may not have a phone is a problem. With the best will in the world, there will be problems here. If you place this in some sort of multiplier, determining what is going to be the correct type of communication will be difficult. I would certainly be more relaxed about this process if the Minister could give me an idea of how they will compile, for example, case studies, best practice and a database. We may be able to build up a best practice model if we have a process that we can feed into, which will help. Unless we get this right, however, the potential benefits of this system will start to fall away, because people who for a variety of reasons simply have a great many problems organising their lives and communicating through the normal channels will slip through the net. If this is not addressed, we are in effect creating a whole approach that will fail for large groups.

There is so much consensus around the Committee that it is difficult for someone whose amendments are grouped with those of the noble Baroness, Lady Meacher, to get a word in edgeways. However, that is exactly what the Minister asked for at Second Reading and that is what he has most certainly got now.

My amendments in this group, like those of other noble Lords, explore the Government’s intentions for the definition of “good cause”. The rationale behind the idea is clear. After all, if a claimant has a good reason, he should not suffer a penalty, but it is in no one’s interest, least of all that of the claimant, if the work-related activity is not taken seriously. However, there are various practical points that I have not yet quite got to grips with. What criteria are the Government using to measure “good cause” for missing a work-related activity or health-related assessment? Will “good cause” cover behaviour resulting from a person’s disability? As the noble Baronesses on the Cross-Benches said, this might, but not necessarily, be a mental disability.

There is a danger that, without clear guidance from the Government, every separate provider will apply the Bill differently. A postcode lottery in this respect is inherently unfair, but it could also lead to unnecessary confusion and worry about the rigour of conditionality and the requirements that will be placed on the claimant. I therefore look forward to hearing the Minister’s response to these questions and hearing more about how conditionality will be applied in practice.

I support the amendments of the noble Baroness, Lady Meacher, which deal with the manner of communication with clients. In my meetings with lobby groups, many concerns have been raised about how organisations undertaking the assessments and the work-related activities will communicate with claimants. As the noble Baroness, Lady Meacher, said, this point is particularly important for those with mental disabilities, but thoughtlessness in this area could have a significant impact on many other claimants, too. It has been brought to my attention that some mental disabilities often lead to behaviour which makes communication difficult, such as a refusal, as we have heard, to open post. Given the possibility of sanctions should a claimant be considered to be avoiding work-focused interviews or health-related assessments, it is very important that this behaviour is fully understood in the context of the claimant’s disability and allowances made.

In the Rethink briefing, which we have all received, the experience of a service user with manic depression is quoted. He said:

“In fact, the DWP kept me in the dark, delaying my benefit without telling me why. After all the stress of delayed benefits last September, I almost died with an aortic rupture”.

Many people simply do not have a social network and rely solely on healthcare professionals for support, as the noble Baroness, Lady Thomas, said. One suggestion was that post should be sent only at the beginning of the week, on a Monday or Tuesday. The letter would then be more likely to arrive on a work day, when the appropriate support bodies are open to deal with any concerns or misunderstandings that the claimants may have as a result. If the letter were to arrive at a weekend, this support would not be available and could lead to two days of unnecessary worry and confusion, and potential sanctions.

When invalidity benefit claimants are eventually migrated to ESA, this issue will be of particular relevance to them. Under the IB system, they will have had very little contact with the DWP, and any contact at all is likely to appear as threatening, whether in their own mind or to benefit entitlement. We have had little information about how people will be migrated to the new benefit and prepared for the new level of engagement required from them. The Minister will know that a single hospital admission or period of sickness absence from work can lead to unemployment, homelessness, debt and social isolation, as the Social Exclusion Unit said.

Given the complexities that can easily arise in situations such as these, we really need to know what plans the Government have to improve methods of communication, which is what all of us have asked for.

It is impossible not to understand the strength of feeling on this issue, but I hope that what I have to say will allay some of those fears and satisfy all Members of the Committee who have spoken. This group of amendments deals what the Bill is asking people to do, how we notify them of what they need to do, and how a failure to meet a requirement is dealt with. We recognise that people with particular conditions, including mental health conditions and learning disabilities, may have particular barriers in understanding and meeting requirements. Some specific examples have been outlined today. However, that is not a reason to give up on these customers and not actively engage with them. Instead, it points to the need to build on the flexibilities and safeguards in Pathways to ensure all customers are able to engage fully. That is what we intend to do and I hope I can offer reassurance on that basis.

Before turning to the majority of the amendments, which deal with conditionality and how we apply it, I would like to address the specific amendments relating to the PCA under Clause 8 and 9. These clauses are, of course, different in the sense that the PCA deals with eligibility for the benefit and the support group. The subsequent clauses set out what is required of customers in the work-related activity group in return for receiving their full rate of benefit.

We have had the opportunity to discuss the personal capability assessment in some detail already in Committee. I am delighted that my noble friend has been able to satisfy noble Lords in such a clear way. But it is worth reiterating that the PCA will be central in the process for claiming employment and support allowance. It is essential that through the PCA we are able to obtain the right information about our customers in order to make a full assessment of their entitlement to benefit. Given the importance of this information to the assessment for limited capability for work, Clause 8 provides a power to treat customers as not having limited capability for work, but only where they have failed, without good cause, to provide the information requested or to attend or participate in the medical examination. We recognise the importance of ensuring that our customers are aware of and understand their PCA appointment.

The draft regulations under Clauses 8, 9 and 10 require notification in writing at least seven days before the assessment unless the customer agrees to accept a shorter period of notification in writing or otherwise. That includes the work-focused health-related assessment which we intend to undertake on the same day as the eligibility for benefit assessments in order to make the customer experience as smooth as possible, subject to our previous discussion.

In line with current practice we will continue to be flexible in approaching individuals in different ways, tailoring how we contact them according to their needs and what would be most effective for them. So, in addition to written communications, we will try to contact customers about the assessment by telephone if it is appropriate to do so. Customers will not, of course, be penalised if they have good reason for failure to comply with requirements. In particular, we acknowledge the particular difficulties that people with disabilities, especially those affecting their mental health, might face in complying with such requests. Regulation 8 of the draft limited capability for work regulations sets out a deliberately non-exhaustive list of the matters that should be considered when determining whether a customer has shown good cause for a failure to ensure that we can look at each individual's circumstances. The list specifically includes taking into account the nature of the customer's disability and the state of his health at the time, a point on which Members of the Committee have particularly sought assurance. I believe that this route of having the ability to look at individuals’ circumstances, while ensuring their health and disability are taken into account, strikes the right balance. The same approach to good cause is also taken in relation to limited capability for work-related activity. This is set out in Clause 9(4) of the Bill and in Regulation 7 of the draft limited capability for work-related activity regulations, which have been made available to the Committee.

On good cause, once on the benefit the principle of conditionality—that the state provides support both financial and otherwise, and in return the customer engages with us—is at the heart of this new benefit. Our successful Pathways to Work pilots have proven that this approach works for people with health conditions or disabilities.

The Minister said that the Pathways for Work pilots have proved that the procedures work with people with disabilities. Can he confirm that the Pathways to Work pilots do not indicate that these procedures work with people with mental health problems? That is what the research shows, as I understand it.

I do not believe that that is strictly correct. We acknowledge that there is concern that those with mental health problems are not being helped by Pathways to Work as much as other groups. The evidence from the pilots is mixed, and clearly more evaluation needs to be done. The IFS report’s findings on mental health have been widely cited, but the IFS says that we need to be cautious in interpreting those results from preliminary findings. The administrative data shows that the take-up of help through the choices package in Pathways areas is actually higher for those with mental health problems than it is for other groups, by around 4 per cent. Job entries are also around 2 per cent higher for those who have a mental health condition or a learning disability. I stress that it is important that we continue to examine the evidence, because it is mixed. The IFS said that the jury is out on how Pathways supports people with mental health challenges in the same way that it does for people with physical disabilities. I do not believe that it is right to say that it does not work for people with mental health challenges; that is not what the evidence shows.

Perhaps I may push this one stage further. Am I right in believing that the IFS work shows that there is no statistically significant improvement for people with mental health problems in their capacity to gain employment? There is the figure of 2 per cent, for example, whereas I understand that there was a significant improvement for people with physical disabilities. That is quite important.

I think that that correctly cites the research, but the IFS said that it is too early to read too much into what it has done so far. I stress that a lot of research has gone on and has been commissioned. It is all publicly available, and I would be happy to send full details to the noble Baroness, although I am sure that she has accessed at least some of it. I stress that qualitative research shows good progress in helping people with mental health conditions and engaging when no one has before. We need to put all the research into context.

Before the Minister moves on, is this not in part anyway what part two of the pilots is intended to establish? So far, as I understand it, they have been physical disability-oriented more than mental disability-oriented. This time around, the pilots are intended to take a more balanced approach, so that we will be more likely to see what the results will be with full roll-out. While I am on my feet, has any decision been made on when full roll-out will take place?

On the latter, if we are looking at the provider-led Pathways for the other 60 per cent of the country, we are hoping to have phase one by the end of this year and phase two by April 2008. The noble Lord, Lord Skelmersdale, is not right to say that current Pathways pilots do not cover people with mental health difficulties. They deal with people with both physical disabilities and mental health disabilities.

I did not quite say that. I said, using my own phraseology, that the original pilots were rather skewed in favour of physical disabilities, whereas the current pilots are designed to have a more balanced approach and therefore could be relied on more readily and more generally.

I do not believe that that is a correct assessment. The existing arrangements are trying to reach both types of customer. We believe that the provider-led Pathways will bring innovative ideas so that we can spread best practice.

I touched upon what we believe the position to be so far in terms of the Pathways to Work pilots.

On the question of best practice, I specifically asked how best practice is being passed on here. There is also the question about best practice being put back into the system and ensuring that people get it down. Many of the groups I have spoken to that are involved in mental health have raised the problems of late diagnosis and late entry into the system; after all, more people will be coming into the system virtually all the time. How are the Government working out how this can progress without having to come back and make a new Bill? A little more guidance on that might help us later on.

We are committed to writing to the noble Lord about our debate last time about spreading best practice. With regard to provider-led arrangements, there are clear requirements in the contractual arrangements for the dissemination of best practice. It is not something you can bottle, though; in many ways it is cultural. If we do not ensure that best practice is shared across the piece, this will not be as successful as it could be. Everyone has an interest in ensuring that we share best practice. That is easy to say, but more difficult to achieve, I acknowledge.

To return to my script, we took the bold step of moving beyond the old system of just giving financial handouts to customers. We have embedded the principle of the Government offering back-to-work support through the new benefit. Instead of abandoning people, that approach supports customers’ ambitions of returning to work. The success of the measures we have introduced bears repeating: we have more than doubled the job entries in Pathways areas compared with non-Pathways areas, and there has been an increase of more than 9 percentage points in employment for new customers after 10 and a half months.

Ultimately, central to the successful approach are sanctions for those who refuse to engage with us and have no good cause not to. That is fair, particularly on the vast majority who want to, and do, engage with us. The purpose of the sanctions is not to punish customers arbitrarily, but instead to ensure that there is a clear incentive to engage with the support on offer. That is reflected in the draft regulations we have published for Clauses 10 and 11, which will remove a sanction once the customer has participated in the conditionality requirement. In Pathways pilots the awareness of sanctions has led to customers engaging with us and sanctions being applied in only about 1 per cent of cases. We are not just requiring those subject to conditionality to engage in interviews. The work-focused health-related assessment will identify what an individual can do, any health-related barriers that prevent him from moving towards work and the health-related interventions that could help to break down those barriers. In time, and as resources allow, we will require customers to engage in work-related activity to help them overcome their barriers to work.

Before discussing treatment of a failure to meet conditionality requirements, I shall touch on how we notify customers of requirements to undertake interviews.

Before the Minister goes that far, he mentioned identifying the barriers to getting back to work. In the case of the guidance that has been issued for people with ME/CFS, one way to overcome those barriers is cognitive behaviour therapy and graded exercises. These two “treatments” have been shown to be very unsatisfactory for people who are severely affected by ME, but the new guidance does not make the distinction between people who are severely affected, those who are moderately affected and those who are slightly affected. If a group of people refuses graded exercise and cognitive behaviour therapy, on the basis either that they are afraid or that they know it will not help them, will they be penalised?

If we are talking about people who would be in the support group, there is no requirement to engage in work-focused interviews or work-related activity. If people are not in the support group, conditionality is attached to that but there is no requirement for individuals to carry out any specific type of activity or treatment. That cannot be sanctioned.

Before discussing the treatment of a failure to meet conditionality requirements, I shall touch on how we will notify customers of requirements to undertake interviews and activity. The draft work-focused interview regulations specify that the notification of a work-focused interview can be in writing or by telephone. Furthermore, they provide that the interview may take place in a customer’s home if necessary. The safeguards set out in the supporting material also specifically provide for making contact with customers before each work-focused interview to remind them that it is due, letting them know to get in touch if there is any difficulty with the planned date, time or place and encouraging advocacy support if needed.

These measures combine to ensure that we take multiple steps to ensure that our customers are aware and understand the requirement. When work-related activity is introduced, work-focused interviews will also be utilised to provide the customer with information and advice about the requirement to undertake activity and the ways in which they can meet it. That will be in addition to a written notification required by the regulations.

Additionally, as the Minister of State for Employment and Welfare Reform explained in another place, the Department for Work and Pensions is currently conducting reviews of the forms of the material, including letters, to ensure that they convey necessary information to customers as sensitively as possible. That has been done in close consultation with support groups and organisations and with individuals with mental health conditions. For all customers subject to conditionality, a sanction can be imposed only if they fail to meet the requirement without good cause. Our intention in providing for good cause when there is a failure to meet a requirement is to give protection to customers who are unable to participate for reasons outside their control.

As I have touched on previously, we have made draft regulations available to noble Lords for Clauses 10 and 11, dealing with work-focused health-related assessments and work-focused interviews. They set out some of the matters that can be considered when determining whether a customer has shown good cause for a failure to attend or participate in an assessment or interview. We have deliberately made sure that these lists are not exhaustive to ensure that we can look at each individual circumstance that will help to ensure fair treatment, especially for the most vulnerable. The list includes, for example, taking into account the nature of a customer’s disability and the state of his health at the time of the assessment. We believe that that approach will allow all relevant factors to be taken into account in determining the good cause.

We are also putting a comprehensive package of safeguards in place, based on those in Pathways to Work areas. Safeguards include contacting customers to remind them of interviews or assessments, encouraging advocacy advice when necessary and identifying any issues from medical evidence that may impact on attendance. Additionally, when a customer has a mental condition or learning disability, a visit is made to a customer, with his representative if appropriate, if a sanction is to be imposed. As we roll out Pathways and introduce the employment and support allowance, we shall of course keep those under review to provide a good service to our customers.

I shall reiterate some clear commitments on our intentions relating to good cause for failure to meet a requirement to do work-related activity. We intend that when a person’s physical or mental condition makes it impossible for him to have met the requirement, that will be a relevant factor listed in the regulations relating to good cause. We also intend to bring forward safeguards based on those that we have set out for work-focused interviews. All those processes will ensure that the substantial protections that we offer customers in Pathways to Work will be brought forward as the employment and support allowance is introduced.

On the five-day period, customers must show good cause, but we recognise that a balance is to be struck in allowing customers reasonable time to show that they have good cause for not taking part in a work-focused, health-related assessment. The provision in the draft regulations is for people to have five working days in which to show that they have good cause, in line with the provision in Pathways for work-focused interviews. It would not be reasonable to let people postpone an assessment indefinitely by giving them unlimited time to show good cause for non-attendance. In addition, the certainty of knowing the date by which an explanation must be received and the point at which we can be certain that we can safely make a determination without good cause will help the timely and efficient delivery of the new benefit.

Some specific questions were raised that I should like to cover. We touched on the issue of the evidence on what has and has not worked, and I know that we shall have a substantial debate on CBT and all that surrounds it. There has been a suggestion that forcing people with mental health conditions to do conditionality will damage their health; we shall approach such cases sensitively, applying the full range of safeguards, such as home visits, encouraging a support worker to be present, and ensuring that there is a pre-interview contact with a customer when personal advisers can explain their purpose. However, we believe fundamentally that engagement with society in some form of work-related activity is a force for good. Engaging with us in this way may help to ensure that people get their full entitlement to benefits.

The question was raised whether a work-focused interview at eight weeks could lead to a sanction for people who end up in a support group. The answer is no. Any failure to come to a week eight work-focused interview, if it is determined after that period that the person should be in the support group, would not give rise to any sanction.

I have tried to touch on the issues of good cause raised by a number of members of the Committee. This has been a good run-through of a very important issue. We all want this to work and we need to address the issues sensitively. That is our determination. I am sorry to hear about the particular case that the noble Baroness, Lady Meacher, cited, but there is a danger in extrapolating from a particular example to saying that it is the generality. A lot of effort has gone into serving all our customers.

There is one fact that many have dwelt on during the passage of the Bill—that customers who are on incapacity benefits after two years are more likely to die or retire than to return to work. That is the failure of the voluntary approach. Abandoning customers on that basis is, I hope, a failure of the past. Engaging customers to help them to achieve their ambitions through assessments, interviews and activity is the right thing to do. I hope that noble Lords will be reassured by the safeguards and processes that we have put in place, which will be brought forward into the new benefit. They provide real and substantial protection for customers, especially those with mental health conditions or learning disabilities. Accordingly, I ask the noble Lord to withdraw his amendment.

After listening to the Minister’s response, I think that he must take from the important exchange that the Committee has just had the notion that it is completely unsafe to think that in the current circumstances, even with the experience of the pilots for Pathways to Work, the provisions deal adequately with mental illness. In my experience, they do not.

I declare an interest as a non-remunerated director of the Wise Group, which is a work provider in the Glasgow employment area. It was involved directly and indirectly in some of the Pathways work and it was quite clear that the new deal for disabled people was a huge asset and that the pilot roll-out promoted a lot of new interest. People were stimulated for the first time by the thought that they were actually getting active support. They came on down and got help—but it worked predominantly for people who had physical and other conditions. My experience may only be anecdotal—and I shall look at the IFS stuff, since it may be that the jury is out and we should all look at this matter more carefully. But in my experience as the director of the Wise Group people with mental conditions and mental illness were left out. Why? Because they take more time than anybody else. It is as simple as that.

The other thing that is different about people with mental conditions is that it is not only about a good cause and regulations but about acting in good faith—and the vast majority of them are. The key to this is not getting regulations put in writing. I actually disagree with the notion of an exemption, because this particular client group deserves special attention, rather than being exempted. But they will not get that under the current regulations, because the personal adviser caseload is far too big to be able to apply the special resources and attention that these clients need. If that is true in the pilots, it will be true in spades when the roll-out comes and we have a £360 million budget wrapped around our necks to deliver the policy with. I do not know how realistic it will be in practice for the caseloading to be right and for personal advisers actually to have time to make these calls and house visits—an important aspect in my experience, mentioned at least twice. House visits are an essential part of the support that this client group needs. Personal advisers do not have the time to do that if their caseload is overstretching them.

There is some argument about what the caseloading should be. Some of the figures I have heard are slightly worrying for an ordinary casework situation, never mind areas with predominant mental illness figures. It is essential to get the caseloading right, and for discretion to be made available to personal advisers to determine whether people are acting in good faith, never mind with good cause. If somebody is acting in good faith, the new system should respond positively to him or her, never mind the regulations. Who is the best person to decide that? The personal adviser, with time and the ability to say, “I think you are trying to do everything you can to get involved in this, and are playing by the rules as best you can”. They should fall over backwards to support the customer in whatever way necessary to get them into work. Whether it is one, 10 or 40 hours a week does not matter; it must be tailor-made and time must be spent. There is no substitute for getting the resources available in the time that personal advisers have to get this right. If we do not do that, we will suffer.

Bear in mind that, in the fullness of time, a lot of this will be put out to businesses that will contract to provide support services for groups of 500 clients. The Wise Group is a not-for-profit enterprise, so we are not driven by making money, dealing with shareholders or any of that; it is easy to over-emphasise all that and make it sound pejorative. But if you are contracting to supply services for a cohort of people like that, the last people you want to try to help are those who are mentally challenged, because it takes so much time do it properly. The experience under the old scheme, where people are often left behind—even in companies which try their best to do good practice—is that in any group of 500 clients, you will always get 400 who are nearest to the labour market, for whom you get outputs, for which you get contractual rewards. However, the last few dozen in every group get left behind and neglected. Make no mistake, people are currently neglected under contracts, because contractors do not have the time to move them in the direction in which they must move for their own benefit. If that happens now, it will potentially be worse in the future: worse for people with a mental condition.

After the debate, I hope that the Minister will go and reflect carefully on the conditions. We can talk about the regulations until we are blue in the face, but until we get manageable caseloading for personal advisers and a sensible amount of discretion for them to deal with whatever condition they encounter in a customer or client with a mental illness, we risk failure in the important reform we are trying to introduce.

I agree with a lot of what the noble Lord said about the importance of engaging with these customers, making it specific, addressing people’s particular needs and having the flexibility in the system to do so. That is what is there. With respect, I take issue with some of the wild assertions about caseload overload and the system not working and so on. We must certainly not be complacent. A strong message has come from this engagement, and we must obviously take that seriously.

On funding, I stress—and it has been stressed before, certainly at Second Reading—that the roll-out of Pathways is fully funded. I do not agree that personal advisers do not have sufficient time. The testimony of customers shows that the assertion is not correct. On using external providers, the contracts will specifically state the opposite—people cannot be ignored and all customers, with all conditions, have to be provided with support. That will be a key part of the contractual arrangements and part of the monitoring of the contracts that we put in place.

I thank the many noble Lords who have spoken so eloquently, particularly those who speak from personal experience and are able to make so clear the problems of implementing these proposals. I thank the Minister for his remarks, although he knows that I am not convinced by what is, for me, a presentation of the theory when the difficulties are of the reality, the complexity and, as my noble friend has just whispered to me, the chaos that the systems will have to deal with in the community.

We will be returning to a number of these issues in Committee and, I have no doubt, on Report as well. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 36 and 37 not moved.]

38: Clause 8 , page 7, line 6, at end insert—

“(7) The Secretary of State shall require the Commission for Equality and Human Rights to publish an annual report on the operation of the assessment for limited capability for work under this section.”

The noble Lord said: That there should be a genuinely independent and regular report on how these major changes are working is an important and basic principle to establish. The high level of incapacity benefit appeals being upheld shows that the assessment process is failing a significant number of claimants. We believe that our amendment is a useful way of ensuring that information on the effectiveness and accuracy of the assessment is collected and made available for public scrutiny.

There was considerable and revealing debate on this topic in the Commons. This particular amendment was not called in the Commons, but similar amendments on this approach were debated. There was considerable cross-party support for the principle we are proposing. The Labour MP Roger Berry was very clear on that. Indeed, I was impressed with the remarks of the Conservative Member, Jeremy Hunt, who said:

“The new clause is not particularly onerous. It will not cost the taxpayer any more, but it goes to the heart of the Government’s commitment to make sure that the new employment and support allowance succeeds where incapacity benefit has failed”—[Official Report, Standing Committee A, 9/1/07; col. 160.]

The Minister in another place, Mr Murphy, was steadily pushed backwards as he responded. Because of the fact that the amendment we are discussing was not called in Committee in the other place, the Minister hid behind a rather technical series of excuses, saying that the Office for Disability Issues would not be the appropriate body to make such a report, given that it is part of the Department for Work and Pensions and this would cut across its operational responsibilities. We accept that, but those arguments do not apply to the Commission for Equality and Human Rights.

The Minister also talked about the ongoing evaluation of independent experts from the working groups who would be able, from 2008-10, to remain in place to offer assessment, challenge and observations about the operation of the revised PCA. If I may say so, that is a classic controlled review, as we so frequently used to enjoy seeing ordered by Sir Humphrey in “Yes Minister”. It is not in any way a proper independent assessment, as we are asking for in this case. I beg to move.

This is another huge group of amendments, many of which pertain to the Government. I shall speak first to our amendment in this group, Amendment No. 92, which seeks to ensure that all regulations made under this part will be subject to affirmative resolution. I suspect the Minister will describe this as overkill, but we shall see.

Although the Government have been extremely helpful in trying to provide us with as many draft regulations as possible, there are still, as the Minister knows, relevant regulations that have not yet been finalised and we have not been able to see. That is natural, and I readily understand that. There is no criticism. Clearly at Second Reading I asked for more than I was going to get, but I knew that at the time.

This clause currently makes provision for only the first regulations made under Clause 12 to be debated in both Houses—in other words, affirmative resolution. I am glad to see that the Government are responding to many of the recommendations in the report of the Delegated Powers and Regulatory Reform Committee on this matter, but I still feel that there would be value in scrutinising much more carefully many of the regulations that are not mentioned. The final details of the assessments have caused many concerns that will only be addressed through well targeted regulations.

We believe that new and altered regulations currently within the IB regime, and there will be a whole chunk of them, which will be necessary under these clauses in particular, would certainly benefit from much fuller and more regular scrutiny. As rollout continues, I am sure the Government will find it necessary to make quite significant amendments as time goes by. I also agree with the noble Lord, Lord Oakeshott, that seeing only the first draft of regulations relating to Clause 12 would not be enough. Legislation should allow enough flexibility for the Government to adapt to changing circumstances and improve on previous regulation. The Bill, however, gives an enormous amount of power with very few safeguards. I do not believe that the Government will ever need to change the regulations under the Bill in such a rush that affirmative action would be a problem. The noble Lord, Lord Oakeshott, has also requested that there should periodically be a report to Parliament. I cannot see any good reason why the Government should not accede to that.

I return to my own amendment. I understand that, as currently drafted, it would require enormous numbers of regulations currently in use for IB to be re-submitted through Parliament. I accept that that would not be necessary, or even helpful. Therefore, perhaps my expression “overkill” is the right one. But—and it is a big but—I feel that the Bill as it stands, or even as it will stand after the government amendments have been accepted, does not give us adequate protection. After the Bill is amended, which it doubtless will be in a few moments, regulations under Clause 2(2)(c), 2(3)(c), 2(4)(c) or 2(5)(c) and under Clause 15(2), which relate to decisions under regulations under Clause 10, 11 or 12, will also be debated, as I understand it, for the first time in your Lordships’ House and another place. Thereafter, they will sink down to the normal negative resolution procedure. At least, I understand that that is the purport of the government amendments.

As a matter of detail, Amendment No. 95, the Minister’s own amendment, deals with regulations under Clause 15(2) that relate to decisions under regulations under Clauses 10, 11 and 12. When he speaks to that amendment, I hope that he will be able to explain very clearly, because, to me at least, it is the most extraordinary piece of drafting.

Proceedings in another place and the initial stages of Committee here have shown that the debate on these matters can be consensual and productive—and, in most cases, it has been—and can go a long way towards reassuring both the general public and interested organisations, not least ourselves, of the Government’s intentions. I therefore look forward to hearing the Minister’s response, and hope that he will be able to offer reassurance on the further role of Parliament in the establishment of this new benefit system. I would like to think that there is at least one other government amendment in the pipeline on Clause 40.

I support my noble friend in calling for an annual report on the operation of the assessment for limited capability for work. It is essential to have an independent person to look at the way in which the PCA is working and to publish the annual report to Parliament. One worry is that 50 per cent of appeals against incapacity benefit decisions were successful.

On the issue of long-term and independent monitoring, the Minister for Employment and Welfare Reform said:

“It is essential that we have a better process to monitor the operation of the personal capability assessment”.—[Official Report, Commons 8/1/07; cols. 9-10.]

It is especially important to ensure that there are no anomalies or disparities in either the regional or the sectoral treatment of people subjected to assessment.

I gave notice to the Minister last week that this was probably the right place—not that there is a perfect place, but this is as good a place as any—to speak about the conducting of the PCA. The PCA matches a claimant’s conditions to a series of descriptors, each of which has a score attached depending on the severity of the condition described. A score of 15 gives eligibility. However, some of the lower-scoring descriptors are being scrapped in the revised test, which is giving rise to a great deal of concern in the specialist groups. The descriptors in the draft regulations seem quite inadequate for the range of disabilities that people have. I acknowledge that the department has just published an evaluation report called, rather dramatically, Transformation of the Personal Capacity Assessment, in which it is clear that it is trying to get it right. However, on page 15, for example, there is a table of the physical descriptors with “Notes” to one side. From these, I see that the first descriptor, under the heading,

“Walking with a walking stick or other aid if such aid is normally used”,

states:

“Cannot walk more than 30 metres on level ground without repeatedly stopping or severe discomfort”.

I had made a note that this might depend on the weather conditions, or a crowded pavement, but I see from the “Notes” that we are talking about an indoor environment, which is completely different. Why is it not made clear in the regulations what environment is being asked about? I gather from what was said in another place that there will be further consultation on the PCA, and I urge the Government to listen to the specialist groups who have such a valuable bank of knowledge to draw on.

I raised the LIMA computer programme, with its pre-coded answers, at Second Reading and made the point that added comments by a claimant should be capable of being taken into account. Will the Minister give us an assurance that the LIMA computer programme is capable of doing that? As we are not allowed to see for ourselves how LIMA works, because of commercial confidentiality, some independent assessment of how it is working is essential. Finding out how these computer programmes work is a highly unsatisfactory pursuit if Parliament can never examine them properly because of commercial considerations.

It is likely that many people who would previously be granted incapacity benefit will now fail the revised PCA despite better results for those with mental health conditions. For there to be confidence in the whole system, it is essential that independent assessors are able to evaluate it properly.

I shall speak to Government Amendments Nos. 93, 95, 113, 96, 97, 98, 99, 100, 101, 102, 109 and 110 and comment on opposition Amendments Nos. 92 and 38.

I start by agreeing with the noble Lord, Lord Skelmersdale that the amendment to make everything affirmative would, indeed, be overkill. I am advised that something in excess of 400 regulations could flow from this Bill and that would mean that we would be spending a very long time together. That would be a joy, but would eat into some of the other things that we had to do.

That is a staggering figure—400 regulations. Does that not suggest that not enough work has been done on the Bill and that there should be rather more in the Bill and rather less in the regulations?

Not at all. Many of those regulations are technical and flow, as the noble Lord, Lord Skelmersdale, said, from changing the current IB system.

The Delegated Powers and Regulatory Reform Committee made recommendations in relation to Part 1 of the Welfare Reform Bill. We have accepted those and have tabled amendments to Clauses 25 and 67, and Schedules 3 and 6. The amendments will make regulations made under the following powers subject to the affirmative procedure: Clause 2(2)(c) and (3)(c), as well as Clause 4(4)(c) and (5)(c) regarding additional conditions of entitlement to the support and work-related activity components; Clause 15(2), to which I shall return, where the regulations relate to the contracting out of decision-making functions in relation to failure to comply with conditionality requirements; Section 65(4A) of the Child Support, Pensions and Social Security Act 2000—this subsection will be inserted into the 2000 Act as a result of a consequential amendment in Schedule 3 to the Bill; and Sections 7(4B) and 9(4B) of the Social Security Fraud Act 2001—these subsections will be inserted into the 2001 Act as a result of a consequential amendment in Schedule 3 to the Bill.

We have also followed the committee’s recommendation on Schedule 6, which would allow us to add, amend or remove cases from the list of those in which a person is not to be regarded as a relevant employer of a person disabled by a disease to which this Act applies. In addition, the committee commented in relation to the annual review of amounts of employment and support allowance. We have considered the issue further and have tabled an amendment to Schedule 3 to the Bill to amend Section 150(1) of the Social Security Administration Act, placing an obligation on the Secretary of State to review the relevant employment and support allowance amounts in each tax year to determine if they have retained their value.

I am most grateful to the committee for their recommendations and comments and I shall, therefore, move those amendments.

On non-Government Amendment No. 92, I believe that the amendments that we have tabled will satisfy the concerns raised by the noble Lord. Amendment No. 92 would make all regulations under Part 1 subject to the affirmative procedure. That would go much further than the Delegated Powers and Regulatory Reform Committee’s recommendations and would result in a significant and inappropriate burden on time in both Houses and make the new benefit hard to manage in relation to meeting customer’s needs.

We need to build a social security system that takes account of changing needs and circumstances and it is crucial that our regulations can be updated quickly. Many of the changes to regulations involved in this process will be technical, so it would not be appropriate to subject them to the full affirmative procedure. The committee’s recommendations strike a sensible balance and requiring all Part 1 regulations to be made under the affirmative procedure is unnecessary.

On Amendment No. 38, quite rightly, the review of the PCA has attracted considerable interest and it is essential for us to evaluate how it is working. Your Lordships will have seen the recently published evaluation report of phase 1—a limited exercise carried out last October. A more comprehensive phase 2 evaluation is due to begin in March. The Minister for Employment and Welfare Reform has given an undertaking that he will continue to monitor the effectiveness of the revised PCA for the first two years following implementation. After then, a decision will be taken on the best way to provide further evaluation. Like the phase 1 evaluation, phase 2 will be carried out by independent healthcare and other professionals from the technical working groups and will continue to involve the independent external experts in the ongoing programme of evaluation.

Asking the Commission for Equality and Human Rights to provide an annual report on the operation of the PCA assessment would distort this natural accountability, placing at least some of the responsibility for policy operation stewardship elsewhere rather than on those responsible for the specific policy and its operation.

The assessment of limited capability for work involves evaluating the effects of medical conditions on individual people. This inevitably requires the exercise of clinical judgment, because it involves assessment of symptoms, such as pain, which cannot be measured exactly. This amendment would require the Commission for Equality and Human Rights to carry out evaluation of a process involving medical judgment, for which it is not equipped.

To impose an entirely new and unrelated burden on the Commission for Equality and Human Rights, such as that proposed, would be inappropriate and conflict with the high degree of independence envisaged for it. Adequate and appropriate provision is already in place to achieve the aims that the noble Lord seeks. Policy development and implementation are monitored for their impact on disabled people and we can provide access to published information. Of course, there are also the usual parliamentary safeguards of Select Committees and parliamentary questions.

A number of specific points were raised. I shall deal first with the point raised by the noble Lord, Lord Skelmersdale, about Amendment No. 95, which would make regulations under Clause 15(2) relating to the contracting out of decision-making functions in relation to the failure to comply with conditionality requirements that make those subject to the affirmative procedure; that is, if we contract out decision making under Clauses 10, 11 or 12, we can do so only after affirmative regulations have been made. I hope that helps the noble Lord.

The noble Baroness, Lady Thomas, asked whether removing the three point-scoring descriptors in the PCA was just a way of ensuring that fewer people are entitled to benefit. The answer to that is no. The technical groups involved in the review were unanimous that those descriptors do not add up to an overall level of disability at which it is unreasonable to require people to work, but rather they reflect the sort of condition that any person might expect to experience without having any resulting functional limitation.

The noble Baroness also raised issues about LIMA. The computer is a prompt and a tool that is used by healthcare professionals; it does not carry out the assessment. It is very important that that distinction is recognised. The noble Baroness also asked about stakeholders being involved in changing the LIMA programme. LIMA is a dynamic system which is continually being improved in response to feedback from a number of sources, including users and stakeholders. Of course, it will need extensive amendment to reflect the changed descriptors and scores of the revised PCA. Designing these changes is best left to those who are expert in the medical and technical requirements. Atos Origin is always pleased to receive a more carefully considered contribution from stakeholders, particularly in relation to such things as key questions that should be programmed into the system to ensure that the right information is being used in assessing functional capability.

Perhaps I can ask about the precoded answers and the notes that people can use when filling in forms. This happened to me, which is why I feel I am an expert in the area. I am sure there will be a column for notes on the form, but unless we can be confident that that note is attached to something, it will not necessarily be picked up by the computer. I think that happened in my own case and we have seen that in our briefing from the lobby groups. Could the Minister look into that and write to me about the notes that are put in by people which may not be attached to a particular descriptor? In one of the assessments about the computer program, the notes were very different from just plain headings on the form. More notes on the form to help people to fill it out might be an answer. I would very much like to know whether the Minister can find out about the non-precoded answers.

I am grateful to the noble Baroness for that. I will certainly look into that matter and write to her. As a partial reply, perhaps I may add that partly precoded answers cut down on typing, but free text is also important for reflecting individual customers. I should like to look in more depth at the point that has been raised. We do not want to end up with a system where decisions are being driven by the computer and if the computer says no, that is it.

I wonder whether the noble Lord could confirm that it will not be the customer, as he calls him, who will fill in the form. It will be the person conducting the interview who will fill it in as a result of information given by the customer. Is that correct?

Yes, I believe that that would be correct. Perhaps I should have said in conclusion to my remarks that I hope my response will enable the noble Lord to withdraw Amendment No. 38.

Several things occur to me. Bearing in mind my jocular remark earlier that all Ministers are temporary, and I have as much reason to feel and fear this as anyone else in this room—

Sob stuff. It is one thing for this Minister, for regulation reform, to say that he will keep this under personal review for the next two years. Can the Minister extend that a fraction further and say that “any” Minister for welfare reform will continue that process for two years? Clearly, Amendment No. 92 was never meant to cover all 400-plus regulations. It was intended to cover only those made specifically under this part. It seems as though I shall have to look at the drafting again to get my point more clearly across. I assure the Minister that I will return to this matter in one form or another once I have decided how to achieve it. In the mean time, when the time comes I will not move Amendment No. 92.

It is very unsettling when the noble Lord keeps going on about Ministers being temporary. I would hope that he would feel able to resist that temptation for the rest of the proceedings.

When my colleague, Jim Murphy, spoke as a Minister, he spoke for the Government, which is on the record. In relation to the amendment on affirmative regulations, the noble Lord is right that his amendment probably did just cover Part 1, so it may have achieved what he wanted, although it is not consistent with our amendments. I am getting frowns from the Box behind me. It is correct. If the noble Lord was seeking just to cover Part 1, that is what the amendment did. Nevertheless, I would ask for it not to be moved, because we have identified the particular regulations which would require affirmative regulations, which is in accordance with the regulations of the Committee.

If I thought that Ministers were being consistent, I would not have to plug on, but the whole purpose of the second amendment this afternoon is to address the inconsistency here. Therefore I hope that the noble Lord will be good enough to write to me explaining what he has just said and to make it clear that what he said a few minutes ago was in fact incorrect.

I am happy to do that. I think that the figure I quoted of some 400 regulations in total flowing from this legislation covers the whole of the Bill, and not just Part 1. However, I shall write to the noble Lord to confirm that.

I thank all noble Lords who have spoken in support of what we propose in this group of amendments. I press the Minister to think very carefully about what my noble friend Lady Thomas has said about how the computer system operates, particularly given her personal experience. I am afraid that I listened with increasing scepticism the longer the Minister went on, particularly when he suggested that stakeholders, as he put it, should all be making suggestions to Atos Origin about how the system works, given that we cannot really see it. There is a major problem on the point about so-called commercial confidentiality.

I thank the noble Lord, Lord Skelmersdale, in particular, for his support on Amendment No. 38. I am afraid that I rather anticipated what the Minister would say in response. I thought that I had already dealt with the argument put forward by Mr Murphy in my opening remarks, and I was not impressed with it. Citizens advice bureaux, for example, are saying that it would be especially helpful to seek a commitment from Ministers to commission an independent evaluation of the whole PCA process. I say that it would be more helpful still to provide for a clear, regular and genuinely independent assessment in the Bill. At the moment the Minister’s arguments about interference with policy operations, stewardship and so forth, basically add up to saying, “You cannot have an independent assessment”. By definition, the Government are saying that they will be judge and jury in this. We do not accept those arguments.

Before the noble Lord withdraws his amendment, does he accept that my response referred specifically to the point that the Commission for Equality and Human Rights should not be involved in the annual report as he suggests? For us to require the commission to do something would be to infringe its independence, which is a key component of its original creation. We cannot and should not ask or force the commission to do something. If it wishes to undertake reviews of a whole range of issues, it is perfectly entitled to do so and doubtless in future it will. But to require the commission in this legislation to produce an annual report would be inappropriate.

Perhaps I may make a suggestion. The department publishes an annual report of its activities in which broad disability issues are covered. If the Minister does not like the idea of an outside or quasi-outside organisation producing a report, there is no earthly reason why one should not be included in the annual departmental report. Could he undertake to do that?

I stress that a large amount of research and review is undertaken over a whole range of policy areas. Those reports are routinely published and are available on the website. No doubt a review of the PCA will be undertaken as part of that process. To force a somewhat artificial form of annual report of some kind would not be the right way to go. We have explained that there will be a review and that inevitably as a part of the department’s operations a whole series of reviews on how policies are working are produced. I will provide the noble Lord with a list of those that have been undertaken in relation to the Pathways to Work programme, which we referred to earlier. That will give a flavour of the extent to which these reviews are undertaken.

I gave way and in a sense we have just had an intervention on an intervention. Perhaps I may now conclude my remarks and respond to the Minister. What the Minister is doing is basically finding a series of different excuses. We heard the same excuses made in the Commons for why no genuine independent report is possible. I do not accept what he says. The Commission for Equality and Human Rights would be a perfectly appropriate body to produce a report, but he may feel that it would not be prepared to do so. Perhaps between now and Report he could inquire about that—as, indeed, I could—and get back to me. We are just hearing a number of different reasons why the Government want to be judge and jury in their own case, and we do not accept that. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clause 9 [Limited capability for work-related activity]:

[Amendments Nos. 39 to 46 not moved.]

47: Clause 9, page 7, line 40, at end insert—

“( ) for a person who is being treated under the Mental Health Act 1983 (c. 20) to be considered as having limited capability for work-related activity.”

The noble Baroness said: The purpose of this amendment is to ensure that people receiving treatment in a hospital or in the community under the Mental Health Act 1983 could not be regarded as being able to engage in work-related activity and would not have to face a work-focused interview—that is, they would be in the support group. The group Rethink believes that this amendment is particularly important, given the current low level of understanding of mental health issues among DWP staff. It says that someone who is so ill that they are being treated under the Act is unlikely to benefit from the regime of sanctions which would apply to them if they were included in the work-related activity group. I hope that the Minister will be able to accept the amendment or one very like it. I beg to move.

I want to make a few brief points. As I understand it, our main concern—certainly it is mine in supporting the amendment—is people who will be subject to community treatment orders under the new Mental Health Bill, when enacted. These people will be subject to all sorts of conditions and controls, despite our efforts on Report of that Bill. In particular, they are likely to have to present themselves for compulsory treatment at specific times and specific places on a regular basis. Referring back to my comments in the earlier debate, that would be a major challenge for these people. They may also have their residence and conduct controlled. The great majority of these claimants will almost certainly be suffering from a psychotic illness—either that or a very severe personality disorder. The psychotic patients—the great majority—will be on powerful medication, which is likely to have pretty unpleasant side-effects, including profound tiredness, loss of libido and a variety of physical symptoms.

We know that people with mental illnesses are the disability group most committed to employment if they can get and hold a job. It is not that they do not want to work; they are more concerned than anyone else to be normal, or as near normal as they can be. So we do not have a problem with most of them—I would not say all of them—in terms of scrounging.

As I see it—I shall put this very briefly—the best way forward is threefold. A claimant with a formal diagnosis of a severe mental illness, such as schizophrenia or bipolar disorder, who will be under treatment, should be included in the support group. In my humble opinion, it is very hard to disagree with that. Every mental health trust must have employment placement officers and psychological therapists in every community team, although I know that that is not the responsibility of the Minister. Trusts are moving in that direction—this year, my trust in east London is to appoint an employment specialist and a therapist in every team—so it is now happening.

In my view, the DWP should continue its ongoing work with employers to ensure that they have an enlightened view about the need for openness in employment so that their employees with these sorts of problems are prepared to talk about them, and employers should give time—if necessary, working time—for people to have the evidence-based psychological therapy that they need.

There are specific action points that will deal with those people. Members of the Committee do not want inaction, as we have had in the past; but I, at any rate, have grave concerns about people with severe mental health problems being caught up in all those demands. Therefore, the only way to proceed seems to be to have them in the support group but with very active efforts being made to get them into employment.

Despite what the noble Baroness, Lady Meacher, just said, I understand that the Mental Health Act 1983 as it currently stands, without the alterations in the Bill to which she referred, covers mentally disabled patients who have been discharged under supervision and who are living in their own homes, hoping—this is the important point—to integrate themselves into society. I understand that the provision will be extended by the Bill currently going through Parliament, which amends the Act, with the introduction of community treatment orders. I am not actually talking about them, but about the Act as it currently stands. I am afraid that I cannot therefore support the amendment. It seems to consign even those who have voluntarily chosen to undergo treatment to perpetual low expectations and refuses to give them incentives to improve their readiness for work.

While we are talking about which people should automatically be included in the support group, has the Minister given any more thought to the point raised by Macmillan Cancer Support, to which I referred last week, that many forms of oral chemotherapy or, indeed, radiotherapy are just as debilitating as intravenous chemotherapy? Is there any chance that the Government will expand the group of those immediately considered of limited ability to undertake work-related activity to include all terminally ill cancer patients?

I have one more question. If the terminally ill are to be fast tracked into the support group—and they are—why does it take the whole of the period from the decision to the end of the 13-week assessment period for the claimant assessed as being in need of support, and therefore going into the support group, to get the support rate? Why cannot the rest of the 13 weeks be waived once that decision has been made? I hope that the Minister can answer those two questions.

Although we cannot accept the amendment moved by the noble Baroness, Lady Thomas, as it stands, I can reassure her that what she seeks is effectively what should happen.

One of the underlying principles of assessment of limited capability for work-related activity is to base the assessment on the severity of functional effects that a person experiences as a result of his condition, and not on the condition itself. Different people may have different levels of functional limitation arising from the same disabling condition. The 46 descriptors in the schedule to the draft regulations under Clause 9, which the Committee has seen, define limited capability for work-related activity in a way which allows a fair and consistent assessment to be made.

However, we have taken powers in the Bill to treat certain categories of people as having limited capability for work even if they do not satisfy any of the 46 descriptors. The noble Lord, Lord Skelmersdale, touched on patients undergoing cancer treatment. People who are terminally ill or who are undergoing parenteral chemotherapy for cancer will be treated as having limited capability for work-related activity.

The noble Lord pressed me on when the work-related or support group level of payment would be due. As we discussed on the previous Committee day, perhaps inadequately, the assessment period for those people will effectively be waived. Therefore, it will be due at the start of their entitlement, which I think we untangled last time as being essentially the date of the claim unless there is entitlement to backdating. So they will not have to wait until the end of the 13-week period. But on the broader issue of whether we would broaden the categories of people with cancer whom we would automatically include in the support group, the answer is the same as we gave last time. We do not believe that it is right to do that. We have to look at the impact on individuals and how it affects their functional activity.

On the issue raised by the noble Baroness, Lady Meacher, we think that the circumstances she described may well fit into the support group. There is nothing to stop people in a support group volunteering for the support that is available. It may be appropriate that with support from advocates and so on, they are encouraged to do so. That seems to be a way forward. Whether they go into a support group will not be determined by the description of their medical condition, but by its functional effects on them.

We have also made provision in Regulation 3(2)(c) of the draft regulations under Clause 9 for a person to be treated as having limited capability for work-related activity if, by reason of some specific disease or bodily or mental disablement, there would be a substantial risk to the mental or physical health of any person if he were found not to have limited capability for work. That provision will ensure that any person who has a mental health condition of a nature or severity that would result in a substantial risk of harm to their health or to that of any other person by their participation in work-related activity will be treated as having limited capability for work-related activity even if they do not satisfy any of the 46 descriptors.

The amendment is therefore unnecessary to accommodate individuals with severe mental health problems who are treated under the Mental Health Act 1983. If they have been treated under that Act, they should meet one of the 46 descriptors used to identify those who have limited capability for work-related activity. If for any reason they did not meet any of those descriptors, we would expect that they would demonstrate that there would be a substantial risk to their health or to that of another person if they were found not to have limited capability for work-related activity. In that case, they would be treated as having limited capability for work-related activity.

I hope that reassures the noble Baroness and that she will feel able not to press her amendment.

I thank all noble Lords who have spoken, especially the noble Baroness, Lady Meacher. Her experience is absolutely invaluable in this field. I shall study what the Minister said and see whether we need to come back at the next stage with amendments related to the problem of people with mental health conditions. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

[Amendment No. 48 not moved.]

Clause 10 [Work-focused health-related interviews]:

49: Clause 10 , page 8, line 2, at end insert “and

( ) not in the assessment phase,”

The noble Lord said: In moving Amendment No. 49 I shall speak also to Amendment No. 60. The amendments are intended to prevent the work-related interview being included in the conditionality that this part establishes. They also address the wider issue of how conditionality will be applied when the support that a claimant is due is not yet available—which is clearly important. At Second Reading the Minister indicated that no sanctions would be imposed before support was fully rolled out. That is an important commitment. It would certainly be unjust to expect more from claimants than they can expect from providers. I am glad that the Government completely agree with that principle.

I am therefore surprised that we continue to see references to the conditionality of the first work-focused health-related interview, which the Government intend to fall right at the beginning of the assessment period. How can the Minister square his commitment to providing full support before instigating conditionality with the possibility that someone may be subject to sanctions before they have started receiving their full ESA entitlement? Even if the financial penalty is imposed only after the end of the 13-week assessment period, an expectation is being placed on the claimant with conditionality but without the commensurate support being available.

There is then the added matter of the practical issues of applying this conditionality. I have touched on a couple of these questions in the debate on a previous amendment. Can the Minister explain how a healthcare assessor will indicate to a claimant that he must go to a second interview when the assessor cannot be sure that conditionality applies? If the second interview, which I now understand will be the work-focused health-related assessment, is not necessary for determining which group the claimant will fall into, there is no reason for it to be compulsory. Early intervention might be the most effective way to return someone to a work-ready state but, as we have said, we do not see why some element of choice cannot be introduced. Why do the Government not allow the second interview to be available but optional for the assessment period, reflecting the limited support available, but allowing those who feel capable to start their work-related activity as soon as possible? Claimants who are then uncertain whether they are eligible for the support group can be spared the uncertainty and pressure of being compelled to attend an interview which might not be necessary or helpful.

I appreciate that the number of claimants who fall into this grey area will be small. I also understand that the Government expect that most of those eligible for the support group will not even need to attend the first interview due to the severity of their disabilities. There will therefore be no question of them attending the second interview or of being threatened with sanctions. But this will not cover everyone and I hope that the Government will carefully consider my points before imposing the threat of conditionality on even a few claimants who should not be exposed to that sort of pressure.

I do not feel that what I am suggesting is impractical. From the cases studies the Government have provided, it appears that the first time a claimant misses a work-related activity appointment for no good reason, the response will be a conversation explaining the consequences should the behaviour continue. That is very sensible. Conditionality is a new requirement that claimants may not have experienced; only wilfully and persistently obstructive behaviour should bring down the ultimate sanction of losing a part of their benefit. Since a restrained and proportionate approach is to be taken, missing the second interview should result only in a discussion about what can be expected if the behaviour continues after the assessment period ends and the claimant is found to be capable of undertaking work-related activity, but no more. Why, therefore, are the Government not extending this reasonable attitude to the assessment period? If they have no intention of implementing sanctions at such an early stage, why is the power to do so in the Bill?

The amendment also gives me the opportunity to ask a question to which I should know the answer. Is benefit reduction to be applied only to the full-blown ESA or can it be applied during the assessment period? I beg to move.

We on these Benches support the amendments. As Leonard Cheshire points out in a very helpful briefing, it seems entirely unreasonable to suggest that sanctions may apply to individuals even when it is not known whether that individual will be in the group to whom sanctions could apply. The Disability Benefits Consortium is concerned at Government plans to take the work-focused health-related assessments immediately after the PCA has been concluded. These assessments perform different functions. The claimant will not know immediately after the PCA whether they will be placed on the support component or the work-related activity component, so it does not make sense to have a discussion about work-related health issues when it is not known if the person will be required to undertake work-related activity. Therefore, the work-focused health-related assessment should be carried out later.

The noble Lord, Lord Skelmersdale, has argued his case very effectively, and we are happy to support him.

The Government’s aim in our welfare reforms is to reduce dependency on benefits by providing customers with the support they need to engage in work. These amendments would prevent regulations from imposing a requirement to take part in a work-focused health-related assessment or a work-focused interview on any customer during the assessment phase. This would mean that participation in the planned work-focused interview at week eight and the work-focused health-related assessment during the first 13 weeks of a claim would be voluntary and that no sanction could apply for a failure to take part without good cause.

We know that the longer a person is out of work, the more they lack the confidence and perhaps also the skills to enter or return to work. Although we know that many people expect and want to return to work when they first make a claim for an incapacity benefit, without the right support very few will take active steps to return to the labour market. That is why we want to ensure their engagement in the early stages of their claim so that the support that customers need can be made available to them.

We believe, therefore, that it is appropriate for customers to take part in a work-focused health-related assessment while they are still in the assessment phase so that any identified interventions can be implemented as soon as possible—a point we debated earlier. We also believe that the work-focused health-related assessment will in itself benefit customers, giving them the opportunity to explore, with a trained healthcare professional, their perspective of their disabling condition and the barriers it is creating for them in relation to work. We know from the experience of the Pathways to Work pilots that many customers are unaware of the support available. On this basis the proposed reforms will be fully effective only if customers are required to take part in a work-focused interview during the assessment phase, enabling them to speak to their personal adviser about the options open to them.

Let me reassure noble Lords that we will not require any person who is considered to meet the criteria for the support group to take part in a work-focused health-related assessment unless they volunteer to do so. The requirement to take part in a work-focused interview may be deferred if an interview at that time would not be of assistance to the customer or appropriate in the circumstances.

If accepted, these amendments would send entirely the wrong message to customers at the outset if we were to agree that during the assessment phase, work-focused health-related assessments and work-focused interviews were to be voluntary. That would imply that the first invitation to an assessment and first interview between the customer and the personal adviser are less important than later interventions and that it is not essential to engage at the earliest opportunity. It could also make the benefit more confusing for customers if some interventions are mandatory and some are not. We feel that this would seriously weaken the concept of rights and responsibilities that underpins the Government’s approach to this legislation.

I want to stress the point made about whether people who end up in a support group have to attend a work-focused health-related assessment. As we said previously, we are confident that the majority of people entitled to be in the support group will be identified on the basis of paper evidence without it being necessary to call for a face-to-face assessment. For those few customers who might slip through the net, we are confident that the healthcare professional carrying out the PCA will identify that they meet one of the support group criteria. If that is the case, any requirement to take part in the work-focused health-related assessment will be deferred until the decision-maker has determined whether or not that person should be in the support group.

On the issue of sanctions being imposed during the assessment phase, I should make it clear that sanctions will not be imposed until after that phase. However, it certainly could be the case that sanctions may be imposed on people who are not in the support group and fail to turn up at a work-focused interview during the assessment phase. However, the monetary impact of those sanctions would not kick in until after the assessment phase, so it is not until people are in receipt of the higher rate which includes the work-related activity component that the sanctions would be brought to bear. I hope that that makes the position clear. We also debated earlier a point raised by the noble Baroness, Lady Meacher, concerning a person who ends up in the support group but who nevertheless is called for the first work-focused interview. That could happen to some customers, but if there was a failure to participate in the interview, it would not be sanctionable.

I hope that my remarks have dealt with the points made by the noble Lord. The monetary impact of sanctions cannot bite until after the assessment phase, and in some instances that phase may stretch beyond 13 weeks if the process has not finished. However, in some circumstances, actions or inactions within the assessment phase could be the trigger which causes the sanctions to bite—but only after the end of the assessment phase. I hope that I have clarified the matter and I urge the noble Lord to withdraw his amendment.

I accept the Minister’s view that the amendment goes far, far too wide—it was intended to cover not everyone on the assessment phase but a grey area where the first interview has not given rise to a definitive assessment. On that basis, I shall, of course, look at this matter again.

I was interested in the Minister’s comment that monetary effects of sanctions would not bite until after the assessment phase was over. I assume that that does not mean 13 weeks, but however long it takes for the assessment period to be over. I see the Minister nodding. Good. Therefore, if there was a quick return to work, which there might be, it would presumably affect the £40 back-to-work grant. Would that be the case?

There are two separate things—there is entitlement to benefit for whatever length of period, and if the entitlement to work-related activity component had kicked in, whether the assessment period was 13 weeks or longer, a sanction would be applied to that benefit. It would be another matter if the person was back into work and under the return-to-work credit, and it would not be surprising if that benefit were subject to sanctions.

That must be illogical. I accept that there will not be many people in the circumstances that I have just cited, but there will be some who have become sanctionable during the assessment period who then have, perhaps, a short period on the work-related level of ESA, who subsequently find a job and, therefore, the £40-a-week employment grant will be payable to them for the next 12 months. It would seem logical that it would be possible—and not beyond the wit of man—that not only would the sanction apply to the initial ESA rate, but would need to be carried forward into the back-to-work grant.

I emphasise that I do not see the situation as being illogical. The level of benefit will be impacted by a potential sanction, however short the period that someone has accessed the benefit for. Obviously, that sanction might run for less than the full period provided for in the regulations if the person goes back into employment. That would be a really good outcome and we would be pleased. But as long as the work-related activity component is payable and a sanction is due, whether in the four-week period or the subsequent period, the sanction will be applied. Perhaps I am missing the noble Lord’s point, but I do not see why that would be illogical.

What I was trying to establish was whether the sanction would be applied only to ESA benefit, not to anything else—for example, the £40-a-week back-to-work grant. Is that right?

Yes, I can reassure the noble Lord on that. Those are two separate things. No deduction will be due from the return-to-work credit.

Good. We all accept that the WFHR assessment should take place as soon as possible unless there are good reasons otherwise. To that extent, I agree with the Minister. I will read his words with great care in the Official Report and decide whether it is necessary to come back to this matter on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 50 to 58 not moved.]

59: Clause 10 , page 9, line 17, at end insert—

“(9) Relevant information gathered during the work-focused, health-related assessment may, with the client’s consent, be shared with those administering Government funded schemes that assist with payment for work-related adaptations, equipment or support from which the client may benefit.”

The noble Baroness said: The purpose of the amendment is that information gathered during the work-focused health-related assessment can be shared with those administering the access to work scheme, giving them an early indication of what help is needed as a person moves towards work. It would also allow the Government to budget for access to work. We have already had a discussion about the whole access to work scheme, so I will not repeat what I said last week, but there is one extra point that I did not cover, about which Citizens Advice is concerned. That is that the scheme is not available to those undertaking voluntary work. Doing voluntary work is a good route into paid employment and likely to be a cost-effective move if access to work could be extended to cover those wishing to move towards work by doing voluntary work. I beg to move.

In speaking to this amendment, I shall speak also to Amendment No. 87 in the name of the noble Baroness, Lady Wilkins. Unfortunately, she is still unable to be with us today. However, her amendment, like the others to which I spoke in her place, was suggested by Macmillan Cancer Support as a result of its familiarity with the difficulties faced by cancer patients. Its research shows that seven out of 10 households drop an average of 50 per cent of their income after a cancer diagnosis.

Awareness of what benefits are available is therefore of great importance for many vulnerable families, but a National Audit Office report in 2005 showed that 77 per cent of cancer patients were not given information about what financial support was available. Current practice among jobcentres is clearly not suitable for informing claimants about the benefits for which they may be eligible. Macmillan reports that staff rarely inform patients about benefits such as disability living allowance, even when they are already entitled to incapacity benefit. A clear example of that lack of a suitable culture is that jobcentre scripts contain no information about disability benefits or questions designed to identify who might be eligible for those benefits. Indeed, the charity has examples where actively misleading or wrong information was given in response to direct questions.

We have all seen the brief—at least, I hope that the Minister has—from Macmillan Cancer Support, so I will not bother to cite any of the examples in it. Yet not a lot is being done in that area. Last July, as the Bill started in the Commons, the right honourable John Hutton promised to see whether there was anything more that the Government could do. He said:

“It is our—

the Government’s—

“responsibility to ensure that people are at least aware of the various entitlements that may be available to them”.—(Official Report, Commons, 24/7/06; col. 622.)

Can the Minister explain what has been done since then to improve the situation? Has there been any examination of the ESA application process to identify where people should be informed about potential entitlement and offered support to help them apply? Are there any plans to update the jobcentre scripts or improve the training and practice of jobcentre staff or does he have any other suggestions for practical improvements in this area?

I am pleased that Amendment No. 59 recognises the potential of the work-focused health-related assessment, but I must point out that the amendment is unnecessary. Although the report of the work-focused health-related assessment is primarily for the personal adviser who will be carrying out work-focused interviews, the customer will also receive a copy of the report and will be free to share it with any third party he chooses. The main purpose of the work-focused health-related assessment is to identify health-related interventions. That is why we are using healthcare professionals to carry it out. With the customer’s consent, a copy will also be sent to his or her GP, who has ongoing responsibility for medical management of the customer’s condition.

However, it has always been the intention that the healthcare professional carrying out the assessment will draw attention to any other intervention—for example, a workplace adjustment—which has been identified during the assessment. In these cases, again with the customer’s consent, we would share the report with the organisation that is working with the customer in relation to such matters.

Reference was made to the amendment of the noble Baroness, Lady Wilkins, which seeks to ensure that, when people claim employment and support allowance, an assessment is made of their other entitlements and they are advised how to claim them.

I agree with the noble Baroness and the noble Lord, Lord Skelmersdale, that it is vital that people have access to information and advice on the financial and other help available to them. The Department for Work and Pensions already provides an extensive and supportive range of information on benefits and statutory entitlements and on how to claim them. For example, we provide a wide range of literature, including booklets and leaflets that are available to customers in a variety of locations, including advice agencies. They are also available in different formats, including, for example, Braille. Meanwhile, our website provides wide-ranging information about eligibility and how to obtain various entitlements. When notifying customers of benefit decisions and making payments, we provide information on the range of benefits and information sources that are available.

We are also currently reviewing the scripts that we use at our contact centres to include a prompt within the Customer Management System script for the staff member to advise the customer to claim carer’s allowance and/or disability living allowance or attendance allowance. We aim to have this in place in the summer. That is one development in which I think the noble Lord has an interest.

However, we recognise that we need to keep working to ensure that this information gets to the right people at the right time and in the right way. As we go forward with the implementation of ESA, we plan to consult customers and representative groups on an ongoing basis. Our aim is to involve them as far as possible in every stage of our business design for ESA.

I do not believe that a statutory duty would add anything to the requirement that we already place on Jobcentre Plus to provide information at the right time to all those who contact it for help and advice; nor would it do anything to adapt and change the way in which this task is carried out in future. I recognise the noble Baroness’s and the noble Lord’s concerns but there are better ways of doing this than creating more regulations.

A specific question was raised by the noble Baroness, Lady Thomas, about access to work and voluntary and permitted work. Access to Work is a specialist disability employment programme, which is focused on helping people to remove barriers to paid work created by their disability. We recognise that volunteering can play a valuable role in helping some disabled people to prepare for work. However, Access to Work is designed to help and support disabled people in or entering paid work, and there are no plans to change the existing focus of the programme. Access to Work is available to disabled people whose jobs are temporary and/or part-time, and people who participate in permitted work can be eligible for support. Again, I should be happy to provide more information to the noble Baroness if, when she has read the record, she wishes me to do so.

With regard to what happens at Jobcentre Plus when calls come through and what can be done, I touched on the fact that we are reviewing the script that we use in CMS. That is currently under way and we intend to include a prompt, as I outlined. Accordingly, I hope I have given the reassurances that the noble Lord and the noble Baroness require and that they will feel able not to press the amendment.

That was extremely helpful. Clearly, in the past, having a rack of leaflets on benefits in the jobcentre has simply not been sufficient because, if no one tells him, no potential claimant will know whether they will apply to him. Therefore, updating and reviewing the scripts is very useful.

That prompts me, I am afraid, to relate a case study from Macmillan Cancer Relief. In November 2006, advisers on Macmillan’s benefits helpline helped a cancer patient, aged 50, who just that day had asked Jobcentre Plus whether his benefit entitlement had changed following his recent terminal prognosis. Jobcentre Plus had told him that he would not be eligible for further benefits as he was already claiming incapacity benefit and income support. That was plainly wrong. Macmillan helped him to apply for disability living allowance under special rules and, that afternoon, his GP issued his DS1500 form, confirming the terminal prognosis and making him eligible for DLA. Claiming DLA also increased his income support entitlement, as it would normally do. A successful outcome of reviewing the scripts should eliminate that kind of error by the jobcentre adviser. I will have to keep track of that to see whether it does.

Any case where there has been an error or where full information has not been given is to be regretted, but we never focus on the multitude of cases where proper information and support are given. Those are never fully identified and dealt with in our debates. But that does not detract from the point that the noble Lord made; we need to make sure that we serve every customer as fully and effectively as we can.

The DWP and the Department of Health, under the Disability and Carers Service, have been working with Macmillan Cancer Support to identify better ways to signpost disability and other benefits at the earliest opportunity. The process will be woven into the information prescription proposals for England, which the Department of Heath is developing with our involvement.

I thank the noble Lord, Lord Skelmersdale, for raising the important question of the scripts in Jobcentre Plus offices. This is another case where the theory is one thing and the practice another. In my experience, jobcentre offices do not know anything much about benefits. They probably should, and I am very pleased that they will be told that they must tell people what their rights are in this field.

I was interested in what the Minister said about Access to Work. I appreciate that it is only for paid employment. It was only as a bridge to paid employment that I was suggesting that it could be extended, but that is perhaps for another day. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Clause 11 [Work-focused interviews]:

[Amendments Nos. 60 to 66 not moved.]

Clause 11 agreed to.

Clause 12 [Work-related activity]:

[Amendments Nos. 67 to 72 not moved.]

73: Clause 12 , page 11, line 38, leave out subsection (7)

The noble Lord said: Amendment No. 82, in the name of the noble Lord, Lord Oakeshott, is grouped with this amendment. I apologise for my confusion just now; there are moments when this Committee seems to go very slowly, others when it goes exceeding fast, and sometimes I find it rather difficult to keep up.

This is a probing amendment to see how rigorously the conditionality of this part of the Bill will be applied. It appears that a claimant is at risk of being sanctioned with the loss of part of his benefit or even, as the amendment of the noble Lord, Lord Oakeshott, makes clear, his eligibility for any part of the ESA if he were to come off his medication or refuse medical treatment. Can the noble Baroness expand on what medical treatment she envisages a claimant could find himself unable to refuse? There can be many good reasons for not taking prescribed medication. Noble Lords around the Committee know more about the medical effects of particular treatments than I do. But I am assured that there can be many good reasons for not taking prescribed medication or treatment, such as unexpected side effects, a fluctuating condition or merely an unwillingness to undergo a certain treatment regime.

Undergoing treatment is often a very personal decision. For example, do the Government intend to make the participation in cognitive behaviour therapy compulsory for some disabilities, a matter to which the noble Countess, Lady Mar, has referred? If so, how do they intend to enforce that, given the near impossibility of judging whether someone is fully participating in this sort of treatment?

I would also like to query when a sanction would be considered appropriate and when a full disqualification would be imposed. The Minister suggested on Amendment No. 49 that sanctions would be imposed only on the amount of benefit above the basic allowance. No claimant would therefore see their income fall beyond the level considered suitable for the assessment period. I think that that is a summary of what the noble Lord just said. Can the noble Baroness confirm that this is correct? This concern was raised by the Joint Committee on Human Rights, which felt that the limit suggested in regulations—that 50 per cent of the work-related component could be withdrawn for four weeks and 100 per cent after that—should be put in the Bill rather than being consigned to secondary legislation. Can she also tell us what sort of behaviour would lead to the imposition of sanctions and what would lead to total disqualification? This last sanction would, I imagine, be used only in extremis. However, we have also been reassured that there would be a high threshold on any sanction.

Finally, can the noble Baroness explain what will happen to a person disqualified from ESA? Will he go on to JSA or will he enter a benefit no-man’s-land? In other words, will he lose all benefit of any sort? I hope that she can reassure us that these sanctions and disqualifications will be restricted to only the most egregious cases of obstruction and that sensitivity will be shown when discussing what treatment and medication is necessary for meeting the requirements of the work-related activities. I beg to move.

I would like to speak to Amendment No. 82. Clause 17 provides full disqualification from benefit on the grounds of not taking medical advice or following “prescribed rules of behaviour”. Both provisions could impact disproportionately on people with severe mental illness, learning disability and autism. Treatment for severe mental illness, in particular, is often a case of trial and error, and medication can cause severe side effects. Would it be considered a good reason if someone stopped or reduced their medication because of severe side effects? What if someone disagreed with their psychiatrist about their diagnosis or treatment, or tried complementary therapy instead?

People with severe mental illness, learning disabilities or autistic spectrum disorder may sometimes behave in ways that other people find eccentric or aggressive, especially at points of crisis. People should not be disqualified because of behaviour that is not intended to be aggressive but which is interpreted in that way. Research published in 2003 in a report from the Joseph Rowntree Foundation on anti-social behaviour orders suggests that 18 per cent of ASBOs have been given to people with mental health needs. To ensure that people with these conditions are not disproportionately affected by these provisions, safeguards must be instituted.

At Report in the other place, on 9 January at col. 166, Dr Roger Berry MP asked whether people who did not comply with the requirement to take medication would be disqualified from claiming ESA. The Minister responded by saying,

“The clause is not an attempt in any sense to force people into accepting medical treatment or medication that they do not wish to take for genuine reasons—for example, on account of unacceptable side-effects of drugs or fear of surgery”.—[Official Report, Commons, 9/1/07; cols. 183-4.]

Could the Minister clarify that this interpretation of Clause 17 will be widely understood?

I thank noble Lords for giving me the opportunity to respond to these important questions and I hope to give a reassurance that our intentions in the Bill do not bear out their fears. First, I should like to address the type of requirement that Clause 12 allows us to impose. The definition of work-related activity set out in subsection (7) permits a wide range of activities to count as work related. It outlines clearly that work-related activity can include anything that will help the customer to obtain or retain work. The Bill simply does not allow us to ask a customer to undertake a specific activity, or even one activity out of a wider series of options. There is no question of a customer being required to undertake any specific activity, be it a condition management programme or anything else. I hope that responds to the point made by the noble Lord, Lord Skelmersdale.

As we have set out in the supporting material provided to noble Lords, we intend that a requirement under Clause 12 would be to undertake some work-related activity over a set number of weeks. What activity customers choose to undertake to meet the subsection (7) definition will be their decision, with the personal adviser providing information and advice to support their choice. The Government will be responsible for providing sufficient help and support to allow customers to meet their work-related activity requirement, and we will look to base that provision on what is available and works in Pathways to Work areas.

If customers decide to undertake other activities not provided by us, such as applying directly for jobs or undertaking training through the Learning and Skills Council, or even voluntary work as has been discussed, those activities could of course meet the subsection (7) definition. Our intention is to help customers to undertake activities that will help them to overcome their barriers to work and potentially, in time, to enter work.

The issue of helping customers through requiring them to undertake work-related activities is entirely separate from the issue raised in Amendment No. 82 in relation to Clause 17. The effect of this amendment would be to remove from the Bill the power to disqualify a customer from receiving ESA or treat customers as not having limited capability for work, and therefore not be entitled to benefit, for periods of up to six weeks where they continue to have limited capability for work as a result of failure to follow medical advice without good cause. If they satisfy the qualifying criteria, customers have a right to benefit. But that right comes with a corresponding responsibility to behave appropriately, the issue that we are discussing now.

Clause 17 sets out powers for customers to be disqualified or treated as having limited capability for work for a limited period of up to six weeks if they do not fulfil that responsibility. The regulations to be made under Clause 17 will set out the behaviours that would be expected of customers in return for their benefit. These are similar to those already required under the existing incapacity benefit regulations. The powers around medical advice will be used only if a customer purposely—that is an important word—and without good cause fails to follow medical advice and, as a result, has limited capability for work.

The purpose of the clause is to safeguard the benefit system against people who seek to abuse it. It is not an attempt to force people into accepting medical treatment which they do not wish to undergo for a genuine reason such as, as the noble Baroness, Lady Thomas, pointed out, the fear or experience of unacceptable side effects.

A series of safeguards will be in place to ensure that the power is not misapplied to any customers. As now, the power will not require people to undergo invasive medical treatment such as vaccinations, inoculations or surgery. Provisions made under the clause will not affect people who enter a condition management programme as part of an action plan with a personal adviser.

I know that a number of organisations have expressed concern about people with mental health difficulties. I assure the Committee that adequate training for our staff and safeguards will be put in place, which will mean that customers will always be given an opportunity to explain their actions before any disqualification occurs. An example of where it might be appropriate to disqualify a customer under this provision is a person with back pain who refuses, without good cause, a recommended regime of physiotherapy to speed up recovery to such an extent that they would no longer have limited capability for work. The benefit system should not pick up the bill for those who act in a wholly unreasonable manner.

This type of provision has been a feature of the benefit system for many decades. It has previously been referred to as “medical treatment” rather than “medical advice”, but this change in wording is intended merely to update the language, not change the meaning. It has been very rarely used and we do not anticipate that it will be used often in the future. However, it is important to ensure that the system is not abused.

There is no evidence to show that the safeguards in place have failed to protect the needs of the most vulnerable in the past, and similar safeguards will apply. Customers who are disqualified will also have the right of appeal to an independent appeals tribunal.

The noble Baroness, Lady Thomas, raised medication, which I have already touched on, and asked what safeguards will be available to customers under Clause 17. Perhaps I may labour the point: the safeguards for the customer, either through the Bill or capable of being specified in regulations, include the flexibility of the regulation-making power. Through that flexibility, we can prescribe the situations and circumstances under which disqualification can be used. The regulations made under this clause will have to be capable of complying with the Human Rights Act.

For there to be a failure to follow medical advice without good cause and disqualification to be considered, the advice must be given by a doctor or other relevant healthcare professional. The advice, if followed, must, in the opinion of that doctor or healthcare professional, be likely to remove the limitations on the capability for work which the person concerned has been experiencing. As I have already said, customers will have the right of appeal to an independent tribunal against any decision to disqualify them from benefit.

The noble Lord, Lord Skelmersdale, asked about jobseeker’s allowance and how a sanction under Clause 17 would affect a person’s benefit. I will come back to him on that when I have had time to research a full answer.

I ask the noble Lord to consider withdrawing the amendment.

Perhaps I might give the noble Baroness some thinking time. I understand that under the existing regime many ME sufferers have had their benefits withdrawn under certain circumstances. However, in response to the noble Baroness’s speech, I do not think that I have ever heard a Minister being quite so definite and then, subsequently, being quite so confusing—to me, anyway. I hope that I got her words down correctly but she started with the remark that there was no question—she was very firm about that—of the customer being required to undertake any activity. In that case, what on earth are we all on about when we talk of conditionality? If one looks—

I apologise if I am not being clear. That may be because I am getting slightly tired as the afternoon wears on, but the point that I was trying to make was that people are not required to do a specific activity; they are required to fulfil a criterion of undertaking work-related activity. A customer could have, say, an action plan that listed five different things that he could do which the personal adviser believed, and had agreed with him, would take him closer to the workplace. He might then find that, on reflection, those five activities were not the things that would take him closer to the workplace and he might pursue something else: he might apply for a job or get involved in some voluntary work. The point that I am making is that we cannot specifically insist on people doing a particular activity; it is a general activity, as defined in the Bill, which takes them closer to the workplace.

In that case, it would have been far better if the noble Baroness had been prepared to say that there was no question of the customer being required to do any particular activity. I understand now that that is what she meant. Is that right?

Good. At least, we have got to the bottom of that.

Looking at Clause 12 as a whole, the Explanatory Notes state:

“Regulations … may specify the amount of work-related activity … set out how matters would be taken into account when determining whether a claimant has met the requirement to undertake”,

that particular list, and so on. To me, that means that the list is the important thing agreed between the personal adviser and the customer but that variations from it, with good reason, would be allowed. In that case, I am perfectly happy and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 12 shall stand part of the Bill?

I oppose the Question whether Clause 12 shall stand part of the Bill. My remarks will apply also to Amendment No. 74.

Clause 12 envisages that claimants of employment and support allowance will undertake work-related activity as a condition of continued entitlement to the full amount of benefit for which they have been assessed as being entitled. My purpose here is to draw attention to the almost certain failure of the new employment and support allowance scheme in reducing the number of people with mental health problems who are dependent on the new benefits. I emphasise that I am one of those people who sincerely want the Government to succeed. I regard my top priority as the chairman of a mental health trust as ensuring that we introduce the sort of initiatives that will enable people with mental health problems to get into work and to lead as normal a life as possible, as their condition permits. So I am not opposed but in favour of the objectives of this legislation.

However, we all know that this matter is far from straightforward. As the Social Exclusion Unit noted, the barriers to employment for people with mental health problems are considerable. They include low confidence, limited earning power and, thus, the fear of loss of income. That is a crucial point for these people. Initially, many of them will not work for more than perhaps 12, 14, 15 or 16 hours a week on low pay. So the income level is a serious matter for them, given tax credits and so on.

Also, there are low expectations among jobcentre staff, which we know about; and there are the attitudes of employers, which are a huge problem. When I attended a recent meeting of employers, a director of human resources said, “My job is to make sure that we do not employ any of these people”. I guess that that is a fairly common attitude. All of that is in addition to the overwhelming fear of destitution if people move from benefits into work and it does not work out for them—they then have the problem of restoring their benefits.

The best guide to the likely success of the welfare reform programme is, as we discussed earlier, the Pathways to Work pilots. They were relatively well resourced and included the work-focused interviews. Some 12 per cent of those claimants had the benefit of so-called “condition management”, a term which, I understand, was applied to different kinds of support that could help a person to become suitable for employment. It is of particular interest that, even with condition management, Pathways did not achieve a significant improvement in claimants’ job prospects if they had a mental health problem, as I think we came close to clarifying earlier.

If the Pathways pilots failed to make a significant impact on the employment of people with mental health problems, we can be quite sure that the less-well resourced scheme proposed by the Bill, in which the work would be contracted out and where there would be payment by results and incentives for contracted firms, will not help this substantial group. This system cannot work.

The question is: does this matter? Yes, it does. First, people with mental health problems comprise about 50 per cent of incapacity benefit claimants. However well the scheme functions for physically incapacitated claimants, the Government will not achieve their target of reducing by a million the number of people dependent on ESA. Then there is the cost of human failure. We know that people with mental health problems are the most stigmatised and excluded of all disabled groups. It would make an enormous difference for many families and others if half a million people who are currently dependent on benefits could be supported back into work. Also, if people with mental health problems in employment were, through the right approaches, helped to maintain themselves in work, that, too, would save so much misery for so many families and individuals. All this is within our grasp—that is the whole point of this debate. We can do it.

I found myself in the rather strange position of paying tribute to my noble kinsman, Lord Layard—that is certainly a new term of endearment that I shall use on special occasions. It is he who has brought together the evidence to show that, as a nation, we can make a significant impact on the employment of this stigmatised group, thus saving billions of pounds for the Exchequer and for the economy. The DWP will of course be the main beneficiary from all of this.

So what are we proposing? We propose that people suffering depression or other mental health problems, whether as employees struggling to hold on to a job—and that is important—or as benefits claimants, should be offered up to 16 sessions of evidence-based psychological therapy. NICE guidelines point firmly in the direction of CBT as the therapy likely to have most benefit. The guidelines also indicate that self-help and computerised CBT could be helpful for some people. I was pleased to note that NICE recommended family therapy, given that I practised it many years ago and I am very aware of the power of that short-term and, therefore, inexpensive modality.

If the Government’s welfare reform package is to succeed, contractors and jobcentres working with this client group must have access to local, evidence-based psychological therapy services, so that anyone with mental health problems and, no doubt, other problems, can be referred for effective help as soon as they apply for the new benefit. Better still, a GP should be able to refer people as soon as they stop work and go off sick. Ideally, an employer should do so before that; as soon as someone comes forward and says, “I am struggling. I have anxiety and depression”, it should refer them, and on they go. That will require a national programme to increase the availability of staff trained in evidence-based psychological therapies.

In the absence of such support, it is fanciful to imagine that the Welfare Reform Bill, by placing conditions on entitlement to benefit, will magically drive people with mental health problems into employment. The purpose of this clause stand part debate is to highlight the risk of failure, and to seek an assurance from the Minister that he will urge the Department of Health and the Treasury to finance a nationwide evidence-based psychological therapy service to ensure the success of this vital policy. If successful, the Bill could play a significant role in implementing the Government’s social inclusion agenda. All these things hang together.

If, however, jobcentres are not able to refer claimants of ESA for evidence-based therapy, I urge the Minister to consider whether Clause 12 should be replaced by a clause that makes clear that people with mental health problems, even relatively moderate mental health problems, should not be involved in the conditional approach to benefits. The point here is that the symptoms of depression, anxiety, schizophrenia or other disorders which render that person of limited capability to work will also affect their capability to undertake work-related activities. You have to do exactly the same sorts of things; answering letters, turning up on time and so on. If the person is too unwell to answer letters and phone calls or to arrive at an appointment on time, they are likely to fail the conditions outlined in Clause 12. That is the fundamental point that we have been discussing on and off today.

We are all after the same ultimate objective: to enable people with mental health problems, as well as those with physical problems, to work, when possible. I hope that the Minister will agree to do all in his power to ensure that the crucial evidence-based therapy is made available, and that he will make sure that regulations are drafted to ensure that claimants with crippling symptoms, whether physical or mental, are not unjustly penalised by the conditionality that is so central a part of the Bill.

I welcome the debate on this whole clause, which gives the Committee a chance to air their worries about work-related activity, in so far as it relates to those with mental health problems.

Anyone who has been close to someone suffering from any kind of mental breakdown knows just how devastating it can be. The person you thought you knew becomes someone else entirely; someone who cannot even lay the table for supper. They have become reclusive, tearful, fearful and completely dependent. It is generally the case that, thank goodness, that phase of mental breakdown will eventually pass and, with good therapy and, sometimes, medicine, a slow recovery will start. That can be a very long process, though, and any hastening of it by any appropriate intervention will do harm rather than good.

That is why those of us who have had experience in this field are so concerned about the clause in relation to those with mental health problems. It puts a great burden on personal advisers to ask them to judge what a person suffering from mental health problems can and cannot do. We are particularly worried that an inappropriate work-related activity could push a vulnerable person over the edge. Like the noble Baroness, Lady Meacher, we on these Benches hope that those with mental health problems will be able to take advantage of the Pathways to Work programme, but great care must be taken in the way such people are treated. We need to talk about this as much as possible to ensure that we get it right.

Clause stand part is a catch-all debate. I agree with the noble Baroness, Lady Meacher, that unless palliative mental health care is available for those individuals with mental illness of even moderate severity, they will not ultimately approach the workplace. That is both their objective and ours in considering the Bill. The noble Baroness, Lady Thomas, is quite right about that.

My reason for getting to my feet is rather different—it is to make a sort of apology. When withdrawing the previous amendment, I cut off the noble Baroness, Lady Morgan, in her prime. She was in full flow and suddenly came to a grinding and unintended halt. I would be most grateful if she could impart the information she was going to impart when I cut her off, because it would be extremely useful to all of us.

The noble Lord is generous to give me this opportunity. I was about to give an undertaking to look further at ME sufferers because we do not have a record of this being a particular issue. The same applies to the specifics about how the benefit entitlement continues under disqualification under Clause 17.

I support the amendment. I have been a lifelong supporter of welfare-to-work policies, so I favour the general principles of conditionality. But people with treatable conditions also need treatment. The shocking fact is that less than half the people who are mentally ill and on incapacity benefit receive any treatment. If any one cancer patient was not receiving treatment, we would consider it unacceptable and insist they were offered treatment. Compared with that, we would think the offer of condition management secondary. The same should be true of mentally ill people.

Before we impose conditions, we must ensure that adequate treatment is available to mentally ill people on incapacity benefit, nearly all of whom are suffering from clinical depression or chronic anxiety disorders such as agoraphobia and the like.

We have treatments, we have drugs, but we also have modern evidence-based psychological therapy, lasting for fewer than 16 sessions, which can cure about half of all those treated. These therapies also have a better record on preventing relapse than drugs. That is why NICE says in its guidelines that all people with depression and anxiety, unless very mild or very recent, ought to be offered cognitive behavioural therapy or, in some cases, other specific therapies.

The problem is that the guidelines are not implemented. This is the greatest case of disregard of NICE guidelines in the whole of the National Health Service. They are not implemented because the therapists are not available. Surveys show that the majority of patients want these therapies; one reason why they are not in treatment is because the therapies are not available and the patients do not want drugs. Their GPs want to refer them for therapies. The president of the Royal College of General Practitioners has told me of the massive frustration among GPs because they cannot implement the guidelines, simply because there are not enough therapists.

We urgently need a plan to train and employ enough therapists to satisfy the guidelines. As part of the process of the Bill, we need a Government commitment to provide a plan that will enable people on incapacity benefit to receive the therapies they need in just the same way as patients with cancer receive the treatment they need. This plan needs to be published and we need to know how it will be done. I hope that the Minister can assure us that such a plan will be forthcoming.

As has been said, it is essential to do this if the Government are to achieve their target of reducing the numbers on incapacity benefit by 1 million over 10 years. I do not want to go into the discussion we had earlier on the Pathways to Work pilots, but I worked rather carefully through the first set of data which led to the published report. I found that however you went at it, the finding of no significant effect on mentally ill people and a very big effect on physically ill people kept showing up. I know that other data are now being studied, but I would be surprised if they showed a fundamentally different result. That is why a plan of the kind I mentioned is so essential.

One of the problems of mentioning proposals like this is that they appear to cost money. What is so fortunate in this case is that this one would not, because large savings would be made by reducing incapacity benefit payments and increasing tax receipts as a result of more people being able to work. The arithmetic is simple. I shall give noble Lords only one figure: a course of treatment costs roughly £750, which is exactly what it costs to keep someone on incapacity benefit for one month. So if, by treating someone, we could reduce on average the amount of incapacity benefit being paid out to one person per month, we would be doing something that paid for itself. The evidence shows that treating people will have at least that effect. If a person is in work it reduces the probability that they will lose their job and have to go on to IB. If they are out of work and receiving IB, it increases the probability that they will go into work and therefore come off it.

That brings me to my final point. If we want to reduce the level of incapacity benefit, it is not just a question of how we treat those in receipt of it; it is also a matter of how to stop people coming on to it. Indeed that is probably even more important than moving people off the benefit, and somewhat easier to achieve. Given that, we must have adequate mental health services, not only to help people get off IB, but to help those in work but in danger of losing their jobs. If you look at the problem from that angle, it is obvious that this has to be handled as part of a general service being provided within the NHS, for both those on IB and the rest of the community.

Is this going to happen? My view is that we are in quite an extraordinary situation. We would enjoy two benefits as a result of providing adequate mental health services. The first is the health benefit and the second is the saving to be made on IB. When you add those benefits together, I have not met anyone who does not think that the proposal to provide adequate services could meet any form of cost-benefit test and ought therefore to be implemented. In fact, almost everyone says that the general idea is a no-brainer. But I have to ask myself this question: is it actually going to happen? The answer is that it will happen only if the different government departments that would benefit in their different ways could agree on how the costs should be shared and from where the gross expenditure should come. That still appears to be a huge problem, even though we talk about joined-up government. Finding a joined-up solution seems to be incredibly difficult, and we do not yet know whether the Government will be able to rise to the challenge. I do not know, and I do not know whether anyone else knows either, but it is essential both for the people who suffer and for the taxpayer that a solution is found and treatments are provided as they should be, according to the NICE guidelines. I earnestly hope that the Minister can reassure us that a plan will be produced for providing what is needed. That is what I and the supporters of this proposal most want to hear.

Now that we have heard from both halves of the Meacher and Layard double act, I want to put formally on the record how strongly we agree with what they say. I have had the benefit of talking to the noble Lord, Lord Layard, in my capacity as a Treasury spokesman, and clearly there are considerable positive financial implications in what he says. We are seized of that and think that this would be a wonderful opportunity for joined-up government if the various departments could get together. I support both halves of what they have been saying.

Although I seek to encourage the Committee to reject the proposition that Clause 12 should not stand part of the Bill, I recognise that the thrust of the debate has been about what we share with regard to the outcomes that we want from this reform. That is a good starting point.

This country has led the way in designing and implementing a world-leading approach to helping people with a health condition or disability to get back into work. As recently as five years ago, these customers were written off as incapable. Today, Pathways has clearly shown the value of our “something for something” offer. Combining the right system of help and support with the expectation that customers will engage with the system has delivered tangible rewards not just for the economy as a whole, but more significantly for the health and well-being of the customers themselves.

It is only right that we go further to help people to meet their ambition of moving into work, and so Clause 12 provides for regulations requiring employment and support allowance customers to participate in some form of work-related activity. I understand the sensitivities around the work-related activity requirement. At previous stages of the Bill we have made it clear that we will proceed and develop our proposals in the light of evidence and experience from the rollout of Pathways to Work. The provision of work-related support available to customers will be built on the basis of services currently provided in Pathways. We will introduce this extra level of conditionality to most customers who are not in the support group as resources allow and in line with emerging evidence.

I am particularly mindful of the concern expressed about the impact of work-related activity on customers with a mental health condition. I should like briefly to outline the requirements we envisage under this clause and the safeguards that we anticipate. I hope that that will go some way to allay those concerns. Subsection (7) makes it clear that work-related activity can include anything that will help customers to obtain or retain work. The requirement that we will place on customers will be to engage in activity that meets that definition. This matter formed the debate that we had just now. The requirement will not and cannot be to ask a customer to undertake any specific activity. We shall be very clear about that. Instead, it will be a collaborative approach with the customer choosing the right support for him, and it will be tailored to help him to overcome his barriers following discussions with, and advice from, his personal adviser.

One activity that would fulfil the requirement is a condition management programme. This aims to help customers to manage their own condition and firmly refocuses them on their potential to work. In many cases, it may include voluntary psychological interventions, such as CBT where appropriate, and where the claimant consents. It is worth remembering, however, that these programmes are not designed to be a replacement for NHS treatment, and noble Lords will no doubt be aware of the current Treasury review in this area. Regulations will set out the amount of work-related activity that we require claimants to undertake in a fixed period. For example, such a requirement could be to engage in a minimum of one step of work-related activity every four weeks.

I can commit that the safeguards provided for in regulations and in guidance will build on those that we have set out in draft for requirements under Clause 11. These safeguards are part of the safety net designed to ensure that every customer, including those with mental health conditions, are dealt with sensitively and professionally in all cases. Regulations will list some of the factors that may be taken into account in determining whether a person has shown good cause to ensure people are not penalised where they have failed to participate through no fault of their own.

A system of waivers and deferrals, under regulations provided for in subsection (6), is also important in protecting more vulnerable customers. We will consider these further as we look to introduce the requirements under Clause 12 to ensure that they can operate effectively and protect people properly where a requirement can be spread over a number of weeks. The key challenge will be to ensure that those people with fluctuating conditions of different durations can be dealt with fairly and consistently.

Reconsideration of an action plan is another of the safeguards that have been designed into the system and are the focus of Amendment No. 74. The action plan is not binding or liable to sanction. It is best considered as a route map which will identify clearly the steps that a customer can take to fulfil the requirement to undertake work-related activity. Reconsideration would provide for a situation where a customer believed that the steps originally set out in the action plan were or had become inappropriate. We would not wish to include or preclude any particular circumstance concerning reconsideration at this point. However, we intend that the regulations will provide that if the customer thought that the activities included in the action plan were unreasonable they could ask for reconsideration. This is likely to include circumstances where the activity was inaccessible or resulted in a detrimental effect on their health.

The maximum sanction relating to work-related activity will be set out in regulations under subsection (4) and will continue to be capped at the level of the work-related activity component. This is the same as under the Clause 11 draft regulations and reflects our intention that sanctions should be an incentive to engage, not a punishment. I can commit that those in the support group will be able to volunteer to take part in appropriate work-related activity, but as subsections (1) and (5) make clear, they will never be required to engage or be sanctioned for not doing so.

I also wish to make it clear that we do not accept that everyone with a mental health condition should be placed in the support group automatically. The intention of the ESA is to treat each customer individually. Sympathetic engagement with every customer for whom it is appropriate—I accept that there is a resource issue attached to that—will help far more than simply writing people off as incapable.

Perhaps I may comment at this stage on the debate around mental health, CBT and the support from government in general. Research clearly shows that mental ill health is one of the biggest barriers to gaining, remaining in or returning to, work for adults in the UK. Evidence shows that one in six adults in the UK suffers from some common mental disorder such as depression, anxiety, phobias and panic disorders, whereas more severe mental disorders such as schizophrenia and manic depression affect only about one in 200 adults. We know that that is reflected in the number of claimants who are currently on IB.

I turn to the Government’s approach to mental health. Since the first National Service Framework for Mental Health was produced in 1999, it has been the target of a number of initiatives. More money has been made available; more patients have been helped; there are more staff—I think that we now have 15 per cent more consultant psychiatrists, 75 per cent more clinical psychologists and at least 20 per cent more mental health nurses than in 1997—and more services. However, there is clearly more to do. Improving Access to Psychological Therapies is a key Department of Health programme which is supported by the DWP and carries forward a manifesto commitment that the Government put forward in the 2005 general election. As has been explained, the programme is intended to test the effectiveness of providing increases in evidence-based psychological therapy services to people with common mental health problems such as anxiety and depression—we know of the two pilots that are taking place in Newham and Doncaster. I am advised that there is currently no firm evidence of the impact of the Newham and Doncaster sites because they are in their early stages. I think there has been an interim report from the Newham pilot, although that covers just a small number of participants, but the report states that participants are satisfied with the service, and clinical outcomes appear to be positive.

My noble friend Lord Layard talked with authority about the work he has been doing and the proposition of the benefit, and indeed the cost benefit, of cognitive behaviour therapies. The pilots that are taking place seek in part to test the hypothesis that has been advanced, so there is more work to do before definitive judgments can be made on that. However, a number of randomised control trials have found that CBT has positive effects on mental health and that it gets people better quicker and for longer than drugs. CBT is also cheaper in the long run than medication. We should acknowledge that there are some critics of CBT who argue that it is not a panacea and that other forms of therapy may be effective. There is some argument that the trials to date have been with patients who are duly presenting with mental health conditions and who do not have other problems. There is perhaps more work to do before more definitive conclusions can be drawn, but the direction of travel seems clear.

We have touched on the issue of the Treasury review of mental health and employment. We expect announcements in, or even prior to, this year’s Budget. If our reforms are going to work, it is important that there is appropriate support for people with mental health conditions. One can see the emerging evidence about CBT and the role that it can play, but obviously there are issues surrounding that and the question of how the Government act collectively to address this issue. But I am grateful for the input, specifically on CBT and the impact that it is having.

I believe the approach that I set out previously, building on a successful Pathways to Work model, is the right one. It would allow us to maximise the effectiveness of mandatory work-related activity as we envisage it under this clause. Accordingly, I hope that the noble Baroness will feel able to withdraw her objection to the clause.

I pay tribute to noble Lords who have contributed to the debate so effectively. Again, it is most helpful to have personal experience of these things to drive home just what a challenge this policy faces. With regard to what the Minister said, there is in fact lots of adequate evidence of the efficacy of CBT; the two pilots will simply look at the best possible mode of delivery. So there is no need to wait for those pilots in order to get on and at least agree the finance for it, but precisely how that is done is another matter.

On the basis of all that, and bearing in mind the time—I am not even sure what words I need on clause stand part.