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Welfare Reform Bill

Volume 690: debated on Monday 19 March 2007

Consideration of amendments on Report resumed.

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

[Amendments Nos. 17 to 21 not moved.]

22: Clause 10 , page 8, line 25, leave out “within a prescribed period, show that he had” and insert “have”

The noble Lord said: My Lords, Amendments Nos. 22, 38 and 42 have the same basic principle. We know from the draft regulations that if a person fails to get to the interview, they have five days in which to lodge the reason why they had good cause to fail. Virtually everywhere else in the system, a person has a month to appeal and show good cause. I have here examples of why people might fail to attend and why this might not be appropriate, but one example sums this up: what happens if a person is knocked over on the way and is unconscious for six days? Why can we not have something to take care of that? A more frequent example might be mental health problems et cetera where a person has a mini-breakdown or a bad episode which takes them out of commission for that period of time, and they are unable to get in contact themselves and people cannot get in touch with them. They have lost track.

According to my information, in the rest of the system a person has a month in which to react and register, and my amendment would bring this in line. The five-day period is far too short and arbitrary. It does not allow for variations in anyone’s life, let alone the lives of those who are slightly more chaotic than the rest of us. I hope that the Minister will be able to assure us that this five-day period in the draft regulations will not be rigidly applied. If it is, people are bound to be left very short of money, possibly affecting their family and dependants. I beg to move.

My Lords, my noble friend and I have tabled Amendment No. 23 in response to concerns that have been raised by the Government’s intention to give claimant customers just five days in which to show good cause for his or her failure to attend or to take part in the work-focused health-related assessment. The argument could equally well apply to any of the activities or interviews that will be subject to conditionality. We accept that some time limits should operate, but the test should be reasonableness rather than prescription. As it is, five days seems a rather short time in which to insist that a claimant customer must come up with proof, even if they have a further month to bring in new material. Of course, a claimant customer should be required to make all reasonable effort to explain why he or she missed an interview, but why can this not be all that is required?

My Lords, the work-focused health-related assessment is a key component of providing support to return to work. It is the new, forward-looking and positively focused part of the transformed personal capability assessment. We believe the work-focused health-related assessment has a vital part to play in customers moving away from a dependency on benefits and into work, and we want all those entitled to the employment and support allowance to take part. Similarly, the work-focused interview is crucial to effective engagement with customers. It is the gateway to the advice, rehabilitation, financial assistance and other provisions available in Pathways to Work areas. Work-related activity will provide a vehicle for customers to take practical steps and move closer to the labour market.

It is central to our welfare reforms that customers engage with the support that is available. We believe that when it is reasonable for someone to participate, there should be a requirement for them to do so. Ultimately, a failure or refusal to take part for no good reason can lead to sanctions. However, our aim is that the rules should be applied fairly and sensitively. We use the concept of good cause because we know there will be times when customers cannot reasonably be expected to comply with a requirement. In these circumstances, a sanction will not be imposed. We have no intention of imposing sanctions when a reasonable explanation is offered for non-participation.

As I said in Committee, the draft regulations for Clause 10 include matters that are to be taken into account in determining whether a customer has shown good cause for not taking part in an assessment. These include the state of the customer's health and the nature of his disability at the time of the assessment. The draft work-focused interview regulations set out a non-exhaustive list of matters that may be taken into account in determining whether a customer has shown good cause for not taking part in an interview. These are intended to cover a wide range of possible circumstances and will help ensure fair treatment for all, including the most vulnerable. This will include customers whose physical or mental condition will sometimes mean that it would be impossible to expect them to take part in an interview at a given time. The safeguards listed in the supporting material provided to the House include visiting every customer, with their representative if appropriate, with a stated mental health condition or learning disability if a sanction is to be imposed.

Within the context of the safeguards that I have outlined, it is not unreasonable to expect that in most cases, customers who are unable to participate will be able to provide an explanation. Again, in most circumstances, it is not unreasonable to expect that explanation within a few days. The draft work-focused interview regulations and the draft work-focused health-related assessment regulations refer to five working days. However, the draft work-focused interview regulations provide that if a sanction is imposed for a failure to show good cause, this decision can be revised if within a month the customer provides relevant information showing good cause that could not reasonably have been brought to our attention within five days. We are still considering whether a similar provision is needed in respect of work-focused health-related assessments.

Without the provisions in the Bill as it stands, my concern is that fewer people on the employment and support allowance will engage with the help and support provided to assist them to return to work. The amendment would give customers unlimited time in which to show good cause and would introduce unacceptable uncertainty into the conditionality procedures. This would seriously undermine the conditionality and sanctions regime. I do not believe that noble Lords intend that, but it could be a consequence of their amendments. I hope that I have been able to reassure noble Lords that the protections around good cause are a reasonable approach and a fair way to proceed.

My Lords, five working days is the period in which a response is required and is a reasonable period of time in which to show good cause. It is the same as that used in Pathways to Work, and we have received no evidence of problems. If someone does not turn up for a work-focused interview and subsequently shows good cause, that could be taken into account. The protections for “good cause” are real and substantial, particularly focusing on the health of the customer involved.

My Lords, I think that that was close to saying there is some flexibility, but we will have to have a look at that. Perhaps I should say that I hope that that is the interpretation to be drawn from what the noble Lord has said. Therefore, provided those who are more expert in this area of law than I make that interpretation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 23 to 28 not moved.]

29: Clause 10 , page 9, line 12, after “a” insert “suitably qualified”

The noble Baroness said: My Lords, I will be extremely brief. This apparently minor amendment, if accepted by the Minister, could avoid many unnecessary appeals and the uncertainty and worry for claimants who are wrongly assessed. The amendment would ensure that assessments of potential ESA claimants would be undertaken by suitably qualified people. Historically, mental health assessments were often undertaken by people with no specialist knowledge of mental illness. The result was an unacceptable number of errors, as evidenced by the extraordinarily high level of successful appeals in this category. I hope that the Minister will agree that the new, more demanding and less secure system should be based on assessments by professionals who have the knowledge base to understand the employment implications of different diagnoses and clusters of symptoms, as well as the likely consequences of different medications.

As noble Lords know, the assessment is based on functional capabilities rather than diagnoses under the new system. Nevertheless, considering the descriptors in the mental, cognitive and intellectual function assessment, the task surely requires some judgment based on the diagnosis of the claimant. To take one example, in descriptor 19(e) on dealing with other people, the task is to assess whether the claimant is,

“unaware of impact of own behaviour to the extent that … has difficulty relating to others for prolonged periods, such as a week”,


“frequently causes distress to others”.

It is difficult to imagine making a true assessment of those types of issues on the basis of a question and answer session unless the interviewer has a good understanding of a person's mental health problem and the treatments available to deal with it.

Perhaps the Minister could advise the House what stipulations will be made about the qualifications and experience of people approved to undertake mental health assessments. I hope that he will agree to this amendment. I beg to move.

My Lords, I support the amendment in the names of the noble Baroness, Lady Meacher, my noble friend and myself. The noble Baroness made the points very clearly. We support them and look forward to hearing the Minister’s answer. My Amendment No. 89 in this group deals with the definition of healthcare professionals.

I do not propose to repeat the extensive discussion that we had in Grand Committee, but I thank the Minister for the letter he wrote to me on 6 March attempting—only attempting, I am afraid—to clarify the Government's position. It contains a lot of talk about appropriate skills and the department's chief medical adviser, but it does not clarify what I can only call the grey area at the end of what the Government are talking about. We all agree that a doctor, nurse, occupational therapist or physiotherapist registered with the Health Professions Council is clearly a healthcare professional. But can the Minister give us a proper answer about what other categories can or will be included and on what basis? Our definition in Amendment No. 89 describes a,

“member of such other profession, regulated by a recognised professional or medical body, as may be prescribed in regulations”.

I hope that he accepts our amendment.

My Lords, there can be no dispute of the need for healthcare professionals to be properly trained in the disabilities of their clients—whether physical or mental. But it is equally essential to use occupational therapists, especially in helping the personal advisers understand what treatments and medical aids there are to help overcome the limitations, which may not have been suggested to him or her by the original medical professional with whom he or she dealt before applying for ESA.

My Lords, Amendment No. 29 would ensure that healthcare professionals carrying out work-focused health-related assessments are suitably qualified to do so. As currently happens with Atos Origin doctors, all healthcare professionals who conduct work-focused health-related assessments will undergo training specified and agreed by the department's chief medical adviser, before being approved on behalf of the Secretary of State to carry out assessments. This will ensure that any healthcare professional carrying out a work-focused health-related assessment is suitably qualified to carry out all aspects of that assessment.

My Lords, what depth of training will these people receive? It is just not the same thing if someone is sent for a little training before they do this work but they do not have the in-depth qualification of a health professional appropriate to the particular disability. There is a tendency in government in general to think that one can just provide a few days or a week of training, but then you do not have a suitably trained healthcare professional.

My Lords, I hope that I can reassure the noble Baroness further. When I talk about Atos Origin doctors I mean medically qualified doctors. I will expand on that further if I may.

Appointment by the Secretary of State will ensure that any healthcare professional carrying out a work-focused health-related assessment is suitably qualified to carry out all aspects of that assessment and has been trained to the standard that the Secretary of State considers appropriate. If the healthcare professional does not have the appropriate qualifications or has not been trained to the appropriate level, he or she will not be approved to carry out the assessments.

The healthcare professionals will receive training to equip them with the skills needed to identify the health-related barriers to work and possible health interventions which will be required when conducting work-focused health-related assessments.

I turn now to Amendment No. 89. Clause 61 relates to the use of healthcare professionals in social security benefit assessments and covers a range of benefits. However, the definition of a healthcare professional is also referred to in Clause 10(8), which relates specifically to the new benefit, ESA. It is important that we maintain a consistent position throughout the legislation. I understand the concerns which have been expressed about the need to ensure that only appropriate healthcare professionals are used to carry out assessments. We all agree that only properly trained healthcare professionals with appropriate skills should be used to carry out medical examinations. As I have said, we have the added security and safeguard that all healthcare professionals must be approved by the Secretary of State before they can undertake medical examinations.

We have no plans to use healthcare professionals who are not members of a regulated profession. Bearing that and the Government's commitment towards regulating more healthcare professions in mind, we agree with the principle behind the amendment and believe it would be appropriate to look again at the way we have approached the structure of the legislation here. I believe that we are able to meet the concerns that have been raised, while retaining flexibility to use other professionals from regulated professions, should it prove appropriate to do so to address any skills gap which may be identified in the future.

With the House's agreement, we would like to take away Clauses 61 and 10 and consider further an alternative wording which would address noble Lords' concerns. We discussed this at some length in Grand Committee and my noble friend has written to the noble Lord, Lord Oakeshott. I believe that we will be able to return at Third Reading with a practical solution which will meet noble Lords’ concerns.

I shall deal with one point about the training that all healthcare professionals get in assessing mental health conditions. We will ensure that that remains up to date and effective. For ESA, there will also be assessments of people with learning difficulties, many of whom are currently exempt from undergoing a PCA. We shall ensure that people get the appropriate training.

As for appeals, most of them take place because the relevant information is unavailable to the decision-maker at the time of the decision. That is something that we discussed in Committee.

I hope that, given the suggestion that I have made, the noble Baroness will withdraw the amendment.

My Lords, I listened carefully to the Minister’s remarks and I thank her for suggesting that there might be some helpful movement in our direction. However, I cannot quite see why she does not simply accept the wording of paragraph (d) in Amendment No. 89, as it seems pretty clear and deals with the point. I should be happy to change the wording, depending on whether she wanted to say “regulated by” or “registered with”, but it is still a very important principle that other healthcare professionals should be regulated by or registered with a,

“recognised professional or medical body”,

and that there are no further loopholes or amendments. I kept hearing the Minister talking about “appropriate” and the Chief Medical Officer, but that is a circular argument. On the basis that she has accepted paragraph (d) of my amendment, perhaps with slight wording changes, which is what I hope that I am hearing, I shall be happy not to press the amendment to a Division.

My Lords, I, too, thank the Minister for her comments and her agreement to take the issues away to review them further. She made the point that assessors are generally medical practitioners. However, the point is that a lot of GPs do not have any training in psychiatry, believe it or not; they chose all sorts of specialties in which to train, but they would not necessarily have had six months’ training in psychiatry. The point that I hope the Minister takes away is that it is important that, if people are doing mental health assessments, they have training in mental health.

I am grateful to the Minister for agreeing to take these matters away and hope that she will take that into account and agree that people need to be suitably qualified. By that we mean that they should have had considerable training and experience in handling these complex matters. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 30 not moved.]

31: Clause 10 , page 9, line 12, after “professional” insert “and a personal advisor”

The noble Lord said: My Lords, this amendment would implement a rather more substantial modification to the Bill than my previous amendments would have done. The key part of getting a customer to consider taking up work or work-related activity is the interaction between the personal adviser and the claimant. The amendment would introduce the personal adviser—and, thus, the positive support for the claimant that he or she should provide—at the earliest possible stage of the process.

As I understand it, the work-focused health-related assessment currently appears rather clinical. After undergoing a tough eligibility test a claimant is required to go off to another test to be further questioned, this time with little or no explanation about what is to be achieved and what happens next. The personal adviser could and indeed should provide that.

I understand why further medical assessment will be necessary. The first eligibility assessments are tightly defined by the descriptors whereas I imagine the assessment here would be much more wide-ranging and might even include some medical assessment of the customer’s condition. The Minister will remember that I asked about that at the meeting that he so helpfully provided in the department the other day and was told that it would not involve complete undressing but that there might be a need for the customer to remove his jacket, for example, so that tests could be carried out on the flexibility of his shoulders or elbows. I am sure that the Minister will remember that. It is hardly invasive or embarrassing, so there does not appear to be a good reason why the personal adviser should not be present. It would make the assessment even more useful if it encompassed not only the medical possibilities and treatments that might be available but the non-medical training and activities that the claimant could undertake.

The Minister raised the issue of confidentiality, which must place some limit on how involved the personal adviser can be, but I still feel that there would be a role for the adviser to play in fulfilling the work-focused element of the assessment more effectively and moving the claimant through the system quicker. That is to everybody’s advantage, not least that of the claimant. I beg to move.

My Lords, yes it may. If you brought in the advisers while you tried to discover somebody’s capacity and get information together on them, there would be a degree not of joined-up government but of joined-up delivery of service, which is a very sensible idea. Trying to get professionals to speak together, cross-reference what is going on and to talk to the person involved is surely a good idea. I hope the Government will bring this in; I see no reason why they should not.

My Lords, the work-focused health-related assessment—or WFHRA, as it is becoming called—will look at residual capability; that is, it will discover what the person can still do despite a disabling condition. It will also identify health-related interventions that could enhance that residual capability.

The report of the assessment will go to the personal adviser who will carry out work-focused interviews with the customer. The customer and, with the customer’s consent, his GP will also receive copies, but the report's main purpose is to provide information for the personal adviser about health-related issues, on which the personal adviser cannot be expected to have the necessary expertise.

I can understand the need to take a holistic view of a customer in relation to work-related activity and to address all factors that may act as barriers to work. That is where the personal adviser idea could be coming from. It will be the role of the personal adviser to explore with the customer such issues as the need for training or social barriers to work. We are using healthcare professionals to carry out the work-focused health-related assessment because they have the necessary skills, which personal advisers do not, for assessing a customer's residual capability and assessing and advising on any health-related interventions that would enhance that capability.

Requiring personal advisers to attend work-focused health-related assessments would not necessarily be a good use of the resource or skills at our disposal. The personal adviser would not be able to participate in the entire assessment, because they will not have the health-related skills to which I referred. For example, the assessment will identify when health-related interventions are needed, such as a course of physiotherapy or cognitive behavioural therapy, which would help customers to improve their capability and move closer to the workplace. It would not be realistic to expect personal advisers to be able to assess whether such an intervention would be appropriate for individual customers. It is better that the personal adviser's skills be used where they will add most value, carrying out work-focused interviews, and that the work-focused health-related assessment is left to the healthcare practitioners, for all the reasons that we have just debated, as they have the expertise to fill the gaps in the personal adviser's skills. In designing the work-focused health-related assessment, we are carefully considering what information will be most useful to the personal adviser. We shall seek feedback from personal advisers, which will be very important, when we pilot the work-focused health-related assessment in the near future.

I fully understand the sentiments behind the amendment. As we discussed in Committee, we are trying to achieve an effective use of skills and division of labour between health professionals and personal advisers. Following this short debate, I hope that the noble Lord will consider withdrawing the amendment.

My Lords, perhaps I should have read out the amendment, because the argument that the Minister has just produced, that the health professional would be sufficient for the purpose, is unquestionably right, but the amendment states that the health professional and a personal adviser should be at the interview/assessment together.

The importance lies in what the noble Lord, Lord Addington, in referring to an earlier amendment, called the holistic approach—in this case, delivering the service together. The sooner a personal adviser is in contact with the claimant, the better it must clearly be. I have not yet heard any argument against these two individuals being present together at the same interview, but I have no doubt that I am just about to hear one.

My Lords, perhaps I have not been as clear as I should have been on the practical implications. We are talking about 300,000 WFHRAs in 100 centres and a current figure of 1,000 personal advisers. What the amendment proposes would not be an effective use of the personal adviser resource. We might need eight to 10 personal advisers in each centre to carry out the WFHRAs. I understand the noble Lord’s desire to give the best possible service to customers and to ensure that the work-focused health-related assessment is accessible and appropriate for each customer, but his amendment is not a practical way of going about it. Highly trained, expert health professionals will deliver the work-focused health-related assessment. It will be targeted at delivering the information that the personal advisers need. We are carefully using the pilot schemes to hone the interview and the reports that go to personal advisers. I hope that that practical information will encourage the noble Lord to think again.

My Lords, is not the Minister effectively saying not only that many of those personal advisers would do nothing else but sit in on other people’s interviews, thus not allowing them to use the skills in which they receive specialist training—supporting moves back into the labour market, testing work and so on—but also that there could be a real problem in terms of tribunal review if a personal adviser who becomes a decision-maker has the decision in which they took part reviewed? That could apply to two stages: not only the interview but subsequently the benefit allocated. That would put the tribunal procedure in a very difficult position. Will the Minister confirm both those points?

My Lords, I endorse what my noble friend said. We need to think also about the cost. We are looking at a very carefully balanced division of labour and trying to use the skills of the health professional and those of the personal adviser where they are most needed. If we had a requirement for additional personal advisers—let us say, 500 more—that could cost, I am advised, around £10 million.

My Lords, the amendment has elicited more information than I had expected. If there are 300,000 assessments in any one year and currently 1,000 personal advisers, one wonders how many medical professionals there are or will be. Are there more or fewer than 1,000?

The noble Baroness, Lady Hollis, made a point about tribunals. I do not see how the assessment or findings of the tribunal could be affected by someone who, as she described them, is just sitting there.

My Lords, I meant that if somebody chooses to appeal a decision, the position of the adviser may be compromised by having taken part or sat in on the original medical examination.

My Lords, this discussion is rapidly beginning to sound like one that we would have in Committee. The noble Baroness’s point presupposes that the personal adviser will advise when matters proceed to a tribunal. That is extremely unlikely and undesirable.

I am not convinced by the Minister’s argument. I simply cannot see the disadvantages of my proposal, because the personal adviser would not interfere in any way with the activities of the health professional.

My Lords, perhaps I may stress the risk of upsetting the balance between resources carefully allocated to health professionals working with Atos Origin doctors, of whom there are more than 1,000, and undertaking work-focused health-related assessments, and those allocated to personal advisers, who sometimes meet clients many times, as we know, to get customers closer to the workplace through their knowledge of local workplaces and the local employment market. Ideally, we would not want to have two professionals working in one interview. The most effective use of resources would be a division of labour between the expert health professionals and expert personal advisers, working to their different but very important remits.

My Lords, that added information gives me a fraction more hope. The Minister has finally driven me off the idea of seeking the opinion of the House on this amendment. I shall withdraw it, but with the proviso that I shall study even more carefully than usual the Official Report tomorrow morning and reserve the right to come back to this at the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 32 to 35 not moved.]

Clause 11 [Work-focused interviews]:

[Amendment No. 36 not moved.]

37: Clause 11, page 9, line 43, at end insert—

“( ) for the role of carers in work-focused interviews;”

The noble Lord said: My Lords, these probing amendments seek reassurances on the role of carers in ESA, which has barely been mentioned. After Committee, I received a letter highlighting this lack of debate and I am glad that this timely reminder means that I can seek some answers to this subject. The letter was from a carer receiving carer’s allowance for his work supporting a disabled person. He has been left entirely uninformed about what expectations would be placed on him should the person for whom he cares be placed in the work-related group and therefore become subject to conditionality.

We have established that a claimant may bring a supportive person, such as a carer, to an interview or an assessment, but where will that end? Will expenses be provided for a claimant to bring their carer? Will judgments be made on their capabilities on the assumption that their carer will always be present? If work-related activity is suggested on the ground that a carer will be present, what will happen if the carer finds himself—or, more likely, herself—unable to attend? Will the claimant be subject to sanctions if they are unable to achieve what is expected of them?

A carer’s benefits could be put at risk. If a claimant is judged able to take part in work-related activity without a carer present, the amount of time that a carer is judged as engaging in care may fall sufficiently for them to lose their allowance despite having little or no say in the work-related activity expected of the ESA claimant. This amendment is purely investigatory, but I beg to move.

My Lords, the Government understand the wish to ensure proper support and advocacy for employment and support allowance customers. They acknowledged those concerns when introducing the Pathways to Work pilots. In their consultation response, the Government published safeguards that would apply in the pilot areas, which included encouraging advocacy support if needed and, in the context of home visits by Jobcentre Plus staff, suggesting that a representative should be present where appropriate. In many cases, a carer might well be the most appropriate person to be present, although we would not wish to exclude a customer from being accompanied by someone who would not necessarily be seen as a carer.

These measures have been put into practice in the Pathways areas. It is not unusual for incapacity benefit customers to be accompanied in interviews by support workers, helpers from voluntary organisations, partners or family members. It is fully accepted that that makes for a more constructive discussion on the part of the personal adviser and a more reassuring experience for the customer.

We are in no doubt that customers—and the success of their participation—will benefit from having someone to support them during work-related activity. We will make it clear to them and their representatives that they are very welcome to involve any suitable person to support them during their work-related activity. That person might be a carer. I can offer assurances that a carer’s allowance will not be affected by accompanying a customer to interviews and on work-related activity. Nor will it be affected if the customer is paid reasonable expenses, such as travel costs.

As I made clear earlier, the presence of intermediaries is firmly established as the normal procedure for conducting interviews. However, it would not be appropriate to place requirements either on customers or their carers to ensure that the customer was accompanied at interviews or while undertaking work-related activities. Nor is it necessary to spell out a specified role for carers in the Bill. I urge the noble Lord to withdraw his amendment.

My Lords, seldom has a probe been quite so successful. That will satisfy my correspondent no end, especially the Minister’s remarks about what would and would not affect the claiming of carer’s allowance and the changes that this would make to it. I hope that that will be sufficient. I have pleasure in withdrawing the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 38 and 39 not moved.]

40: Clause 11, page 10, line 34, at end insert—

“( ) Where a work-focused health-related assessment has identified steps to improve a person’s capability for work and those services necessary to support the taking of those steps have not been made available to him he shall continue to be entitled to the full amount payable to him in respect of the allowance.”

The noble Baroness said: My Lords, the amendment is designed to prevent sanctions from being applied to people who need help rather than a penalty. In Grand Committee, we heard from the noble Lord, Lord Layard, who told us that people with treatable conditions need treatment. I was particularly shocked to discover that less than half the people who are mentally ill receive any treatment at all. In this day and age, it is incredible to think that those people are likely to be penalised under this Bill because they are not receiving appropriate treatment for their illness. I know that the Minister will not like the word “penalise”, because the withdrawal of the work-related activity component is, according to his brief, an,

“incentive to engage, not a punishment”.

I think that most people will regard it as some sort of punishment.

I took his point in Grand Committee that his department supports the Department of Health programme on improving access to psychological therapies. However, I wonder whether enough people are being trained in evidence-based psychological therapies so that, as the Bill is rolled out in all areas, those therapies can be offered throughout the country. The figure of about £750 to train someone in cognitive behavioural therapy is, as the noble Lord, Lord Layard, said in Committee, the cost of incapacity benefit for one month. The more people who are qualified in this important branch of mental health, the better. I beg to move.

My Lords, in supporting this amendment, I thank the Minister for our very helpful discussion. I believe that we are all of one mind in wanting evidence-based psychological therapies and good employment placement support to be available to people with mental health problems and others who would benefit significantly from such help. The overwhelming economic arguments in favour of government funding for those services were well rehearsed in Committee and we do not need to repeat them. We also understand the challenge for the DWP in pressing the Department of Health to ensure that it plays its part in maximising the success of the welfare reform policy.

Nevertheless, this amendment would be a valuable lever at local level to generate pressure from Jobcentre Plus on primary care trusts and mental health trusts, such as my own, to provide high-quality CBT and job placement services, which they should be providing to honour the Government’s manifesto and their social inclusion commitments. However, we know that mental health is always a Cinderella service that picks up the morsels left under the table once the demands of cancer, heart, paediatric and A&E services have been met.

The logic is overwhelming. If the Government succeed in reducing by 1 million the number of people dependent on employment and support allowance, that will save billions, some of which could no doubt be spent on acute medical services. If the Government do not make the investment in the first place, they will be shooting themselves in the foot. We know from all the research studies that 50 per cent of people with depression and anxiety—the majority of the half of incapacity benefit claimants—who receive evidence-based cognitive behavioural therapy will recover. As the noble Baroness, Lady Thomas, has suggested, the case for spending £750 per person is irrefutable.

How would the amendment achieve the Government’s objective? If Jobcentre Plus could not apply sanctions at any stage of the process to a claimant assessed as needing CBT or other interventions that would enable them to become capable of work, surely it would enter into negotiations with its local PCT and mental health trust to ensure that the relevant therapies were provided. That detail cannot be included in the Bill.

Therefore, without wishing to ask too much, I hope that the Minister will support this amendment. I also hope that he will assure us, first, that regulations will specify that the work-focused health-related assessment will include questions designed to identify whether each claimant suffers from depression, anxiety or another diagnosed mental health problem; secondly, that the assessment will specify whether the claimant has received CBT and, if not, recommend that it should be offered; and, thirdly, that the assessment will identify those claimants with mental health problems who should be referred for individual job placement and support. That term refers to specific evidence-based support in identifying suitable jobs and preparing for interview, and support through the process of returning to work.

I would be happy to make available to the Minister the research evidence showing the cost-effectiveness of that approach. The answers to questions (a) to (c) would trigger the protection from sanctions until the evidence-based psychological therapy or other support had been made available to the claimant. Anyone not familiar with mental health problems could regard such safeguards as excessive. I suggest that the results of the Pathways pilots underline the need for evidence-based interventions with the 50 per cent of claimants who suffer from mental health problems, if the Government’s welfare reform policy is to be a success. I hope that the Minister will be able to support the amendment.

My Lords, first, I acknowledge the genuine concern that some noble Lords have about how this will work, particularly for people with mental health problems. I know that noble Lords table amendments with the very best of motives. I regret that I am not able to accept the amendment, but I hope that I can explain why. I understand the intention and we share the objective of wanting to make this work for all customers, especially those with mental health conditions.

The work-focused health-related assessment is a tool to allow the personal adviser and the customer to understand what barriers a customer faces in returning to work. For most customers, it will cover a range of barriers, although, as we have said previously, the focus will be on the customer’s own perceptions of the barriers resulting from their disabling condition and on identifying any health-related barriers that could be addressed with appropriate interventions. The work-focused health-related assessment will not prescribe what a customer must do. It will provide advice to the personal adviser carrying out work-focused interviews about interventions that would help the customer, but it is certainly not an instruction or a prescription to go away and do a particular type of work-related activity.

For instance, a work-focused health-related assessment will not say to someone that they must undertake any type of treatment, including cognitive behaviour therapy. The work-focused health-related assessment does not produce a tick list of things that a customer can do that will mean that they can return to work. Instead, the assessment provides information to our advisers, who can then treat customers as individuals. Each individual will have their own journey. We know that some with severe conditions will want to, and can, move into work quickly. For others, it is a longer journey, and our approach recognises that.

It is entirely right that we offer support to customers to overcome their barriers. That was the groundbreaking innovation of Pathways to Work. The Pathways offer was, and continues to be, based on customers engaging with us in return for support to help them to move back into work. We know that Pathways has changed many, many lives for the better. That is reflected by double the job entries in Pathways areas compared to non-Pathways areas. It is also seen through the one-to-one research that has shown that the support on offer is welcomed by customers and has helped them to overcome their barriers, even when work has not been a realistic option for them. At the heart of that is the fact that we have required customers to engage and that there are sanctions for the very small minority who do not. I stress that the required engagement in Pathways, and initially when ESA is introduced, is to attend up to six work-focused interviews. We encourage any activity beyond that, but it is on a purely voluntary basis. The system that required nothing of customers and gave nothing in return failed. It failed in terms of the numbers on incapacity benefit and in the lack of support for the aspirations of our customers.

We have said that we want to go further in the future with the new benefit. We want to offer more information to the customer and to the personal adviser through the work-focused health-related assessment, and we want customers to engage in mandatory work-related activity in time. However, we have also said that work-related activity will be made mandatory only when we have the resources to do that. To be explicit, those resources will be needed to expand the provision of help and support. We have also made it clear that we will build this offer of help and support on the evidence from Pathways, including those provider-led areas that will be rolled out over the next couple of years.

When we require customers to engage with that support through mandatory work-related activity, we have been very deliberate to allow customers a wide choice of what they can do. The definition in Clause 12(7) makes it clear that anything that improves the customer’s chances of obtaining or retaining work will count as work-related activity. That is in line with our approach of treating customers as individuals.

My Lords, if the work-focused health-related assessment uncovers the need for some intervention in the mental health field, is there nothing that the doctor can do? Can he suggest anything to a personal adviser? Can the personal adviser do anything? No one can suggest to the claimant that this would help them into work. I wonder whether that could happen.

My Lords, I understand the thrust of the point. No one is saying that if the work-focused health-related assessment identifies a course of treatment that might be beneficial for the individual, that is going to be ignored. Various things might flow from it. The GP would see the result of the assessment, with the agreement of the customer, and so could take steps to see what was available from the local PCT. It is possible, as resources allow and as we move further into work-related activity, that the provider may provide a course of treatment that deals with the item identified. It will not be ignored. The provider would not and is not being asked to guarantee that every recommendation or every point that is noted from that assessment would necessarily lead to specific health-related action. That is not the primary purpose of the assessment; but it is not to ignore it.

The point that I am seeking to stress relates to whether anything in the assessment would lead to sanctions. What would generate sanctions at the moment, at this stage, is non-participation in the work-focused health-related interviews. In due course, when work-related activity is introduced, there could be sanctions attached to that. We do not anticipate that the work-focused health-related assessment will lead to a whole range of specific actions required of the customer that could lead to sanctions.

I hope that that has helped the noble Baroness. I am happy to come back on it. I stress that we cannot force customers to undertake medical treatment; that would be wholly wrong. What comes from the assessment is building part of the evidence, in particular the discussion with the customer about how they see their condition impacting on their ability to move back to work.

We recognise the need to be sensitive to the individual’s circumstances when we require them to participate in interviews or activities. That is why, in Committee, I outlined the safeguards and flexibilities in the system to respond to the needs of all customers, particularly those with mental health conditions. I do not wish to go over those in full, but I reiterate that they include contacting customers to remind them of interviews or assessments, encouraging advocacy advice where necessary, and identifying any issues from medical evidence that may impact on attendance. Additionally, where a customer has a mental health condition or a learning disability, a visit is made to a customer, with their representative if appropriate, if a sanction is to be imposed. Personal advisers will also be able to defer a requirement to take part in a work-focused interview where that is appropriate in the circumstances, and that decision can be made in advance of the date of the interview.

The help and support coupled with the responsibilities that we are rolling out through Pathways to Work and in relation to this Bill are groundbreaking. From the research that we have done, we know that this has been welcomed by our customers. I challenge the assertion that Pathways does not work for those with mental health conditions. The issues surrounding the early IFS research have been debated at length in Committee. However, that is only one element of the research looking at employment. In fact, research with individuals has shown some remarkable journeys for customers with mental health conditions. These have not always resulted in employment, yet the positive effects on customers who would never have been supported in the past are clear. Those are exactly the kind of journeys that we should support. I urge noble Lords, where possible, to visit their local Pathways to Work, to experience the real differences that support on offer is making. My office would be more than happy to make arrangements for noble Lords who wish to do that.

In conclusion, I state again that there is considerable flexibility and protection in the system. We will roll out further provision of work-related activity, beyond what exists in Pathways to Work, before introducing mandatory work-related activity. The work-focused health-related assessment will be a tool to help the customer to understand and overcome his barriers. However, it is not a tick list and customers will rightly have the freedom to choose the type of support that is right for them. I hope that that has reassured, although I suspect not completely, the noble Baroness. I urge her to withdraw her amendment.

My Lords, I thank the Minister for his further explanation. Will he leave the channels of dialogue open to experts, such as the noble Baroness, Lady Meacher, in this very sensitive area before regulations are brought in, so that we can have the best possible result for people with mental health conditions?

My Lords, we are very keen to continue dialogue on these matters. Much work is taking place, particularly in relation to CBT. There are the pilots that we debated before; the report commissioned by the Chancellor is due to be announced very soon; and work will rightly continue with stakeholders. On the specific regulations on the provisions in the Bill, which are moveable, we have to make progress. This is a hugely important area. The debate that we have had on the Bill and elsewhere has helped to raise the profile of some of the issues and it is very important that that debate continues.

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 [Work-related activity]:

[Amendments Nos. 41 to 45 not moved.]

Clause 15 [Contracting out]:

46: Clause 15, page 12, line 43, at end insert “, excluding functions under regulations under any of section 10(2)(f), 10(4), 11(2)(g), 11(4), 12(2)(e) or 12(4).”

The noble Lord said: My Lords, the way in which the Bill is drafted has caused no little confusion among my advisers—possibly the Minister too, judging from that laugh. Clause 15 allows the final decision on whether a claimant is to have his benefit reduced for non-compliance with the obligations to be attached to the payment of ESA, examples of which might be not turning up to an interview at the jobcentre or not seeing his personal adviser when he should. That could be done by any contractor; for example, a personal adviser or a health professional. Ministers have said that they have no plans at present to do that. However, I put it to the House that they should never let go of the ability either to pay or to withdraw social security benefits. These amendments, therefore, seek to remove any possibility that the Government will contract out the power to impose a sanction on a claimant or to make the final decision relating to whether he has fulfilled the conditionality requirements.

I have already spoken of my concern about this in Committee and privately to the Minister. He has left me with the impression that even the Government are 100 per cent uncertain about contracting out those powers being the way to go. He is smiling again; he must be agreeing with me, for a change. It is equally clear that many representative organisations are as unhappy as I am. Therefore, I hope I may convince him that whatever the benefits that may accrue from contracting out some of the functions relating to the payment of ESA, the power to withdraw benefits should remain with the organisation that pays the benefits; namely, the Government. Any other situation runs the risk not only of subjecting claimants to a postcode lottery as regards the severity of the sanctions that they risk, because different contractors will operate in different parts of the country, but of the Government losing control of a vital tool in the achievement of their aim to reduce the numbers of disabled people unable to find or to keep employment.

No matter how watertight the contracts are with the private or non-governmental organisations, some diversity will grow up as each organisation interprets the guidance and the requirements differently. The dangers of contracting out sanctions have been noted elsewhere. David Freud’s recent report for the DWP states that sanctions should be administered through Jobcentre Plus, thus ensuring that the state remains responsible for those collecting benefits as a way of maintaining the significance of the sanction.

Many organisations that intend to bid for the contracts when they are offered are also unwilling to take on the responsibility of imposing sanctions. Support for the amendment comes from Mencap, Rethink, the RNIB, Leonard Cheshire, the NAS and Action for Blind People. The list is long and illustrious. They feel not only that this will risk damaging the trust between themselves and the claimants that they have spent so much time and effort building up, but that they do not have employees suitably trained for or experienced in this sort of decision-making. I hope that the Government will listen carefully to this weight of opposition and accept at least a version of these amendments. I beg to move.

My Lords, we on these Benches stand shoulder to shoulder with the official Opposition. Our names are to these amendments. There must be no privatisation of benefit cuts. We oppose the Government’s provisions in principle. The Joint Committee on Human Rights stated very powerfully:

“We remain concerned that, generally, contract compliance will not provide effective protection for the Convention rights of individuals where the functions of public authorities are assumed on a day-to-day basis by a private commercial or voluntary organisation. We draw this matter to the attention of both Houses”.

The Government said in the other place and here in Committee that they have no current plans to do that, but they are fighting to the death to keep that option and to do it by regulation, when we shall not be able to amend it. In a Bill such as this, one has to state very clearly whether one will do that. We are completely against it; we believe that to give others that power would be an unacceptable abdication of responsibility by the state towards some of its most vulnerable citizens. We support the amendment wholeheartedly.

My Lords, I thank noble Lords for setting out their concerns. By this stage, we are all familiar with the arguments that have been made for and against the contracting-out of decision-making that could lead to sanctions under Clause 15. However, I do not think that enough attention has been paid to the potential benefits of moving decision-making of this kind closer to the organisations that deal with customers on a day-to-day basis. I do not believe that these benefits can be dismissed; they should get the measured consideration that has been the hallmark of the debate surrounding the Bill.

Decision-makers make their best decisions when they have the proper, accurate and timely information needed. There should be no argument about that. There is a real desire among noble Lords and stakeholders that decision-making be improved and decisions be right first time. Locating decision-makers within provider organisations could make the process of information-gathering faster, easier and more accurate. Having two different organisations, one responsible for support and the other for conditionality, also weakens the link between the support that customers receive and their responsibility to engage with us.

Responsibility is not an added extra to ESA that should be dealt with separately—far from it. It is an integral part of ESA. For sanctions to be a proper incentive, customers must realise that there is a fundamental connection between the work-related-activity component of their benefit and work-related activity. Of course, there are questions to be answered. How will it work in practice? How will we ensure that the quality of decision-making is upheld? How will we enable contractors to use this tool without abusing it? It is precisely those kinds of questions that need to be answered before we can contract out decision-making that would lead to sanctions. In the same way that we piloted Pathways to Work, learned from the pilots and built upon that approach, we would pilot the contracting-out of decision-making leading to sanctions under Clause 15, learn the lessons that the pilots taught us and build upon that.

There are potentially a number of benefits of contracting out decision-making leading to sanctions. Given the strength of feeling on this issue and the questions yet to be answered, we acknowledge that we need do more work with stakeholders and providers in this area. We will not seek to retain the powers in the Bill to enable us to contract out decision-making that could lead to sanctions.

No, my Lords, I am not. However, I will explain precisely how we intend to carry forward what I have said.

Amendment No. 47 would have unintended consequences for a wide range of functions beyond decision-making that leads to sanctions. Contractors would not be able to revise or supersede a decision to waive work-focused interviews where it was appropriate—for example, if interviews were waived because a customer expected to start work but subsequently did not.

Amendment No. 46 could still give scope for the contracting-out of decision-making that could lead to sanctions. This is because the functions of decisions leading to sanctions will be imposed under Clauses 10(1), 11(1) and 12(1) rather than under the clauses referred to in Amendment No. 46. As these amendments would not achieve their stated aim and would interfere more widely in Pathways and ESA operation, we cannot accept them. However, I will make a commitment to bring forward amendments at Third Reading to achieve the desired result of removing powers to contract out decision-making that will lead to sanctions.

I therefore hope that the noble Lord will feel able to withdraw the amendment and return to this matter at Third Reading.

My Lords, I am rather nonplussed, I must admit. I assume that when the Minister comes back at Third Reading his amendment will remove the powers under Clauses 10(1), 11(1) and 12(1). In other words, he will produce the right amendment to achieve what I was hoping to achieve with this one. There is no doubt that the contractors will have an integral part in advising the Secretary of State and his minions whether someone has fallen foul of the requirements of the contractors’ activities as far as ESA is concerned. That is the right way to go. However, as I said earlier, it is also right that he who pays the piper calls the tune. I anticipate that that is exactly what is going to happen in the noble Lord’s amendment at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 47 not moved.]

Clause 19 [Relationship with statutory payments]:

48: Clause 19, page 16, line 43, at end insert—

“( ) Regulations may provide that—

(a) an assessment is to be made to identify all statutory entitlements and allowances to which a claimant is entitled, (b) a claimant is to be notified of their statutory entitlements, and (c) a claimant is to be advised on how statutory entitlements may be claimed.”

The noble Lord said: My Lords, I suspect that I am rather timid in proposing a quick and simple probing amendment after all that. I am hoping that the Minister will be able to assure us that the Government are taking concrete steps to improve the current system of informing potential claimant customers of benefits to which they may be eligible. We have heard from many lobby groups that merely providing a rack of leaflets at the local job centre is not effective. The benefit system is far too complicated and obscure for that.

I was pleased to hear in Committee that the Government intend to update the scripts that are used at job centres to include information about where more benefit information on carer’s allowance or disability living allowance can be found. Is this all they intend to do? What about other related benefits? Do the Government have any intention of undertaking any disability awareness training so that the staff at job centres are able to identify potential claimant customers more accurately and assist them to maximise their entitlement? The Minister has given us an assurance that they will continue to consult claimant customers and representative groups about ways to improve benefit awareness at every stage of the ESA system. I hope they will give full consideration to any suggestions that arise as a result. I beg to move.

My Lords, Amendment No. 48 seems remarkably familiar. I have used similar arguments since this came out. Ensuring that people get the right information about what they are entitled to has been very important for a long time. I hope that the Government can use the opportunity to give us further clarification on how this is going to happen. I support the amendment.

My Lords, let me see if I can give noble Lords the clarifications they wish in this area. The amendment seeks to create provisions which would allow regulations to specify that when people claim employment and support allowance an assessment is made of their other entitlements. They are then notified of any entitlements and advised how to claim them. It is only right that people should have full access to information and advice on the financial and other help available to them. The Department for Work and Pensions already provides extensive background information on the full range of benefits, statutory entitlements and how to go about claiming them. For example, where customers require quick or urgent advice they can contact their local office or call Jobcentre Plus Direct or their appropriate benefit delivery centre. Our wide range of literature is available in many locations and formats. For example, the Jobcentre Plus leaflet entitled A guide for disabled people, those with health conditions, and carers explains the support that is available to those people if they are unable to work, looking for work or not looking for work at the moment but may in the future. In addition, the customers home page of the Jobcentre Plus website signposts disabled customers to the specialist help available for disabled people; for example, Access to Work, Workstep or Remploy.

We acknowledge that there are many challenges associated with producing customer information. We have made much progress in rationalising our leaflets and the information on our websites and increasing its accuracy and availability. We are moving in the right direction but recognise that there is more to do. As the implementation of ESA progresses we will continue working with all stakeholders to ensure that this information gets to the right people at the right time and in the right way.

There is cross-government co-operation in this respect. The Disability and Carers Service is working with the Department of Health to improve the ways benefit advice about disability living allowance and attendance allowance can be delivered. This includes exploring the provision of benefit advice through the “information prescription” which the Department of Health will trial in England. We have also taken steps to improve the customer management system scripts. The department’s officials responsible for the system are in touch with Macmillan so that there may be a real opportunity for Macmillan’s aspirations for its service users to become a reality. I am sure noble Lords will agree that this is a positive move forward.

Jobcentre Plus is fortunate in that it is staffed by dedicated and hard-working staff who already do all they can to provide information at the right time to all those who contact it for help and advice. I am, therefore, not convinced that the power to provide for a statutory duty would add anything to the requirement that we already place on Jobcentre Plus. Accordingly, I hope that I have provided the comfort that the noble Lord requires and that he feels able to withdraw the amendment.

My Lords, before the Minister sits down I would like to intervene briefly in support of the amendment. This is a crucial amendment. I do not agree that putting it in the Bill and placing a statutory duty on the Government is nugatory and has no effect or is unnecessary. Psychologically, it is important that the personal advisers, who will come into play for the first time, have the ability to look at the whole picture, as well as some of the health-related and, I hope, biological, psychological and social measures behind some of these claimants and customers and—for the first time in 25 years in my certain experience and knowledge—have the ability to win the confidence of customers in a way that has never been done before.

I have personal experience of this. In a previous incarnation—admittedly a long time ago—I acted as a CAB personal adviser in the town of Hawick in south-east Scotland. I saw streams of customers or clients coming across from the DHSS office, as it then was, and I would tell them exactly the same thing as the officials across the other side of the high street had done. They were much more prepared to accept it from me because they believed that I was someone who was acting in their best interests, broadly defined.

If we get this right, personal advisers could play an extremely valuable role. One of the best ways to encourage people to come on down and talk sensibly and openly to personal advisers is the knowledge that someone sitting on the other side of the desk is going to do the best they can—become a personal friend and adviser and provide support, psychological and otherwise, in picking the customer’s or client’s way through the system. The amendment is a crucial part of enforcing that feeling of confidence that customers and clients will have.

Uptake rates are a continual problem; people are denied entitlements that the system would provide for them if only they knew the route to ask. We miss a trick here if we do not accept responsibility. The amendment may not contain the right approach; perhaps its wording or suggested procedure is not right. I say to the Minister with all the conviction that I can muster that if he is somehow able to invest personal advisers with the ability to say, “I am able to help you across a wide area”, people will come to them in a frame of mind that they would otherwise not have. In the Bill he is trying to change the psychology involved in this regard but he may be walking away from one of the best ways of getting assistance for the issue.

I absolutely support the amendment. If it is a probing amendment, that is fine. I hope that the Minister will go away and think carefully about how to encourage people to talk to personal advisers; we should introduce a provision during the Bill’s passage.

My Lords, I agree entirely that we should do all we can to ensure that our customers are made fully aware of all the benefits and opportunities that the system provides for them through support and benefit. That is very important and absolutely right. I outlined in my initial response to the amendment the things that are going on; in particular, changing the script—for those who reach us on the telephone—with prompts to encourage people towards certain benefits when the conversation suggests that that might be appropriate. We notify customers when we reach benefit decisions and when we make payments; a full range of information is provided. We recognise that there is more to be done. I suggest that this does not simply involve personal advisers; the first work-focus interview, with the personal adviser, is a key opportunity to explain to people the journey on which they are about to embark and some of the benefits and opportunities around that; that is important. However, that is not generally the first point of contact, which is made when people ring up. That system, too, needs to provide information; that is why we are looking at scripts and working with stakeholders to get those right.

All that the amendment says—this is why it does not achieve anything—is: “Regulations may provide that”. In a sense, the department already has the power to do all that is contained in the provisions that are then listed in the amendment. It is not helpful for that to be expressed in those terms.

We do not disagree about the importance of ensuring that people are appropriately and fully informed about entitlements and about what the system can provide; I simply do not think that the amendment takes us very far. I believe that it is a probing amendment in any event and hope that the noble Lord still feels able to withdraw it. I hope that we are agreed about where we should be on this issue.

My Lords, I thank the Minister for his response to the probing amendment. Also, the House should be grateful for the contribution of the noble Lord, Lord Kirkwood, who focused on what is essential to the Bill; that is—this is what makes it unique—the relationship between the personal adviser and the claimant customer. That is what gives the Bill its positive edge. I am very much reassured by the Minister’s response that there is a determination to ensure that this relationship is one whereby the claimant customer will be properly and fully advised on ways in which they could take forward their proper statutory benefits along with the opportunity to explore Pathways to Work, which the Bill provides for. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

49: After Clause 21 , insert the following new Clause—

“Prescription charges

Persons for whom employment and support allowance (income-based or contribution-based) is their only household income and who satisfy the savings threshold for income-based employment and support allowance are exempt from prescription charges.”

The noble Baroness said: My Lords, the Minister is in such a generous mood that I have hopes for the amendment. We have tabled this amendment again, having reflected on the debate in Grand Committee and after receiving further evidence from our advisory groups.

First, I should say that we are talking not about full passporting of all benefits for those on ESA but about free prescriptions. Free prescriptions are available for other benefit claimants, and it seems bizarre that they are not necessarily going to be available for all low income ESA claimants, who are, by definition, in poor health. I must reiterate what I said in Grand Committee, which is that a MORI- commissioned survey five years ago showed that as many as 750,000 people were failing to get their prescriptions dispensed because they could not afford the charge.

It is worth taking a little time to examine what happens now. As things currently stand, those on the contributory strand of jobseeker’s allowance move across, after six months, to the income support JSA, so this group can access free prescriptions that way, but there is nothing similar in this Bill for those on the contributory strand of ESA. In general, looking at all those entitled to free prescriptions, there are those aged 60 and over; those aged under 16, or under 19 and in full-time education; those receiving income support or the guarantee credit of pension credit, or income-based JSA; and some are receiving working tax credit or child tax credit.

Another group that receives free prescriptions are pregnant women and those who have given birth in the past 12 months, regardless of their income, so there is a clear precedent for extending the exemption from prescription charges beyond those in receipt of income-based benefits. Is it not likely that ESA claimants will be just as much in need of an exemption from prescription costs—if not more so—than anyone in one of those categories? One very important question is whether or not the fact that claimants are unable to afford to pay for the prescriptions they need will be treated as having good cause in the event that they are unable to comply with the conditionality imposed on them. That question was not raised in Committee.

What we are asking for is some adjustment to the initial application for ESA to incorporate a suitable income test, the outcome of which could be passed to the Department of Health, which administers the exemptions system. There is some precedent for such a system and information-sharing between government departments in the liaison between the HM Revenue and Customs and the Department of Health on exemptions for tax credit claimants.

Does the Minister agree that this suggestion fits in with the Government’s aspiration to improve their service to their customers, or claimants, by using technology to share information between government departments?

In Grand Committee, the Minister spoke about the change to the system of pre-payment certificates from July this year, which is very welcome for those on low incomes. However, Citizens Advice client evidence suggests that awareness of both the pre-payment certificates and the low income scheme is poor. Some clients find out about the operation of these schemes only when they seek advice because they cannot afford their prescriptions or because they received a penalty for fraud as a result of claiming exemptions to which they wrongly believed they were entitled. The distinction in exemption entitlements between income-based and contributory-based benefits is often not obvious to claimants, especially as both may be paid at the same weekly rates. The amendment gives an opportunity to avoid carrying over into the new ESA regime the unfairness contained within the existing IB system by making all low-income ESA claimants exempt from prescription charges.

Making sure that ESA claimants are able to access medication prescribed for them should be central to the Government’s welfare reform agenda. The clear focus in ESA is to address people’s health problems so that they can be encouraged back to work. Its introduction strengthens the case for tackling this problem to ensure that efforts to improve condition management are not undermined. I beg to move.

My Lords, this subject has been covered more than once in previous stages of the Bill. I recall the Minister saying:

“We expect the income-related strand of employment and support allowance to offer access to the same benefits that have already been discussed as income support currently does”.—[Official Report, 1/3/07; col. GC 266.]

If the Government can change the expectation to an affirmation that they will offer the same access to the same benefits as are available to people on income support, I am sure that the noble Baroness, Lady Thomas, will be more than happy to withdraw her amendment.

My Lords, I thank the noble Baroness for tabling this amendment again and for giving us the opportunity to discuss the matter on Report.

The amendment seeks to probe our intentions for passported benefits within ESA. The noble Baroness also asked about the comparison between those on the contributory elements of both ESA and jobseeker's allowance. As I said previously, we understand the importance of income-related benefits to our customers, both for the income they provide in and of themselves and because they often also allow the customer to qualify for other benefits.

As I made clear in Committee, we expect to bring existing passporting rules into the income-related strand of employment and support allowance, allowing access to the same range of benefits as offered by income support. The range of support includes free prescriptions and remission from other NHS charges, such as optician and dental costs, benefits such as free school meals, school uniform grants and cold weather payments, milk tokens and vitamins for young children and expectant mothers. In addition, customers receiving the income-related strand of ESA will be passported on to the maximum level of housing benefit and council tax benefit. As noble Lords know, that can make a huge difference to the income of families, particularly those in greatest financial need.

Customers receiving only contributory benefit are not currently passported automatically, as we discussed, because the schemes in question are targeted support meant for those most in need, and entitlement to contributory benefits is not based on household income. However, someone on a low income who is in receipt of incapacity benefit or, in the future, contributory ESA, may still qualify for additional help through the low-income scheme. Noble Lords will understand, therefore, that there is no financial disadvantage regarding prescription charges between contributory jobseeker's allowance and employment and support allowance, as those on low income will qualify for help whether passported or otherwise.

We accept that this scheme requires additional forms to be completed and we recognise that that is an issue, but it provides valuable access to free prescriptions and is designed so that no one on a low income need be unable to afford prescriptions.

Additionally, from 2004, people have been entitled to full remission of NHS charges on more generous terms. Previously, people were entitled to full help through this scheme only when their income was equal to, or less than, their statutory requirements. From 2004, people became entitled to full help if their income exceeded those requirements by up to 50 per cent of the prescription charge. This means that people whose income is only marginally above income support level are now entitled to full help.

Again as I advised noble Lords during Committee, as part of their response to the report of the Health Select Committee on NHS charges, the Government undertook to explore the possibility of accessing free prescriptions without the need to make a separate low-income scheme claim—a significant point. This will be looked at as part of the overall review of prescription charges. The noble Baroness, Lady Thomas, highlighted the complexity of prescription charge exemption. Looking at the list that she took us through and at all the different exemptions, it is clear that a significant review needs to be undertaken, and the Department of Health is undertaking such a review. However, when doing this, we need to be mindful of getting the balance right. The challenge is to find a way of identifying those with low incomes and ensuring that our information is up to date as people's circumstances change without being overly bureaucratic or intrusive. The Government will report the outcome of this review by this summer.

In addition, as I said in Committee, the Government have agreed that, to make it easier for customers to meet the cost of annual prescription pre-payment certificates, they will be available through monthly direct debits from July 2007. At the same time, four-month pre-payment certificates will be replaced by lower-cost three-month pre-payment certificates, something for which I know stakeholder organisations have been campaigning for many years.

I just wanted to pick up on the point about sanctions. If a customer’s state of health or his physical or mental condition prevented him fulfilling a particular requirement and if this was a result of not having a prescription medication, that could count as a good reason for not attending. There is no reason why someone on low income should be unable to obtain a prescription; that is what the low-income scheme is for.

In the light of the reassurances that I have given, I hope that the noble Baroness will consider withdrawing her amendment. I appreciate that she is highlighting a very important and complex issue for people with significant health needs. I hope that, through the review of prescription charges, some of these issues can be further aired.

My Lords, I thank the Minister for that very full explanation. I should like to add two things. First, I gather that it is the Department of Health that issues the low income forms. I hope that it will ensure that the forms are as simple as possible, because that is one of the problems.

My Lords, as I recall, that is precisely what the review is about, as well as simplifying the process and other matters. I hope that that helps the noble Baroness.

My Lords, the other matter, which takes us back to an earlier amendment, is that jobcentres must tell people about the low-income scheme, particularly those on the contributory strand, who may be only marginally better off than those on the income-based strand. They should be told that this is available so that everybody knows about the low-income scheme.

Again, I am glad to welcome the review and I hope that there will be a report to Parliament so that we can see its result. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 [Employment and support allowance: supplementary provisions]:

50: Schedule 2 , page 55, line 30, at end insert—

“Holding periods (1) Subject to sub-paragraph (2), regulations shall provide that where a person previously had limited capability for work and where no more than a prescribed period of time has elapsed, he shall be treated as having limited capability for work for the holding period.

(2) Regulations shall provide that entitlement during the holding period shall be dependent upon the receipt of written confirmation of suitability for assessment by a prescribed health care professional.

(3) The holding period shall commence with a person’s application for ESA and cease at the end of the assessment period.

(4) During the holding period, regulations shall provide that a condition which was satisfied in relation to the earlier period is to be treated for the purposes of this Part as satisfied in relation to the later period.”

The noble Baroness said: My Lords, the purpose of the amendment is to clarify the procedures which would remove one of the most powerful disincentives for ESA claimants to strive to find a job. At present, the linking rules look helpful on paper but sadly do not work in practice.

Under the current rules, if an IB claimant accepts a job but within a two-year period loses the job, if they wish to reclaim IB they must contact a call centre, which will forward a relatively short application form to the claimant. The form must be completed correctly—I believe, not surprisingly, that a lot of them are certainly not completed correctly—and returned to the jobcentre. The claimant will then be invited for interview and asked to bring with them a number of documents to prove identity and any change of circumstances. In reality, a claimant with a mental health problem who has just lost a job will not be in any kind of state of mind to organise themselves to complete the reclaim process effectively. Lots of delays and confusion can be expected before benefit is restored, if at all. The target time for completing the process for reclaiming IB, but not, I emphasise, housing benefit, is 18 working days from receipt of the completed application form. In reality, taking into account delays and errors, which may well be down to the claimant, two to three months can pass under the linking rules before benefits are restored.

I mention housing benefit because until now the linking rules have not applied to that. I know from our front-line staff in East London and City Mental Health Trust that, for people with mental health problems, this often causes chaos and risk of eviction, which will be avoided only by intensive and highly time-consuming work on behalf of mental health staff.

The amendment provides a solution to these problems. It would remove the fear experienced by any mentally ill person contemplating taking a job and relinquishing the safety net of benefit. Any claimant knows that they face stigma and uncertainty when taking a job, and if they then fail and lose the job, they will have intolerable uncertainty and lack of money before benefit is restored. The amendment provides for the situation where a person with a mental health problem takes a job and subsequently loses it. A letter from a responsible clinician certifying that the person was once again out of work and in need of benefits would trigger renewal of benefit payments immediately. Paragraph 4(1) of Schedule 2 states that a second period out of work within,

“a prescribed length of time is to be treated for the purposes of this Part as a continuation of the earlier period”.

It is precisely that spirit that, I believe, supports the amendment. It makes clear that the usual safeguards against abuse under the linking rules should apply. However, these safeguards would be applied during an initial holding period while the new ESA is being paid. The restoration of benefit would thus not be delayed while these procedures were followed. Quite the opposite: benefit would be restored for a holding period of perhaps three months immediately. As benefit was restored a form would be sent to the claimant to confirm the date of leaving the job, efforts would be made to ensure that the form was completed and returned, an interview would be organised, and so forth. In other words, everything could continue just as it does now, but you would not have the intolerable delay before any money is paid while the processes are pursued—and the poor old claimant makes all sorts of mistakes involving a lot of delay.

This reform could be introduced to apply only to a period of perhaps six months from the date of taking a job. The linking rules apply to a two-year period. From discussion with the Minister and officials, I understand that over a two-year period you could expect some considerable change of circumstances, which could make this whole process rather complicated. This would ensure that the individual circumstances are unlikely to have changed dramatically. Changes of circumstances between the original period of claim and the subsequent holding period could perhaps be ignored on the grounds that the period out of work was treated, as it says in the schedule,

“as a continuation of the earlier period”.

That would be difficult to justify if the two periods were very far apart. I know that the Minister fully appreciates the problems that the amendment is designed to deal with, and I hope very much that he will feel able to support the amendment. I beg to move.

My Lords, we support the amendment. The linking rules are extremely welcome, particularly the relatively new 104-week linking rule, which I understood was introduced after much lobbying from disability groups and the intervention of the Social Exclusion Unit. However, as the noble Baroness, Lady Meacher, said, there is quite a time-lag between a person qualifying for the benefits they were on before working and the payments actually coming through. The amendment would ensure that benefit payments could be paid much more quickly so that the claimant did not get caught in a web of bureaucracy.

A person who has been on ESA for quite a long time is more likely to plunge into the world of work if they know that, should their condition deteriorate, it will not take them long to return to benefits.

My Lords, we believe that people with mental health problems and those with fluctuating conditions who move between benefits and work need to have their benefit position properly protected. I fully appreciate the concerns that noble Lords have raised about this important issue.

The linking rules protect people receiving benefits because of incapacity for work—or, in the future, limited capability for work—who leave benefits and then find they need to return to it. The linking rules are designed to enable people to return to the same position on benefit as when they left it. The rules apply to incapacity benefit, income support, housing benefit and council-tax benefit, and they will also apply to ESA.

Last October, in response to concerns about the complexity and the scope of the linking rules in incapacity benefits, we simplified and improved the rules in four ways. First, the long-term linking rule period for people who have been incapable of work for more than 196 days and who leave benefit for work or training was doubled from 52 weeks to 104 weeks. Secondly, work or training that starts within a month of the benefit ending counts for the purpose of this rule, instead of that which starts within one week, as was previously the case. Thirdly, we have removed the requirement for a customer to provide formal notice at the point they leave benefit to start work or training. Prior to last October it was possible that some people would not qualify for protection because of this notice requirement. Instead the information about work or training will be gathered when a new claim is made. Fourthly, customers returning to benefit now requalify for the long linking rule immediately. They no longer have to spend a further 28 weeks on benefit before using the long linking rule again.

We believe that those significant improvements provide considerable reassurance to people making the transition from benefit to work or training, which is so important if we are to fulfil our aspirations for reducing the number of economically inactive people. I fully appreciate the noble Baroness’s concerns about people with mental health problems having difficulty in coping with a return to benefit when a job does not work out, but a fully automatic system would not be appropriate. It is important to check that the customer’s circumstances have not changed substantially so that we can make sure that they receive the correct amount of benefit. If we did not undertake these checks, it is possible that vulnerable people may be asked to live on levels of benefits below their proper entitlement.

Under the existing system, when a person returns to benefit and the linking rules apply, no referral is made for a personal capability assessment until 13 weeks have elapsed. Benefit is awarded on the basis of a medical certificate from the GP, provided that all the usual conditions of entitlement are met. At that stage, further specialised information about a person’s mental health, such as from a psychiatrist, would not be needed for a benefit award, though further information may be sought after 13 weeks as part of the normal referral process for a personal capability assessment. We intend to carry forward this part of the existing system to ESA, thereby making part of the amendment unnecessary. In addition, it is important to realise that the linking rules will return a customer to the same place within the benefit; for example, someone returning to benefit via the linking rules would not need to serve the assessment phase again, provided he had completed it when previously on benefit.

Last October, we also made further improvements to the claims process for benefits and extended the rapid reclaim process that applies to income support and jobseeker's allowance to incapacity benefit. People claiming incapacity benefit are able to make their new claim on a shortened rapid reclaim form if they have claimed incapacity benefit within the past 12 weeks and there has not been any relevant change of circumstances since their last claim. We intend that this new process will be carried forward to employment and support allowance. In addition, we have arrangements in place for representatives to make claims on behalf of customers where a person is unable to look after his own affairs. This is particularly important for customers with mental health problems. Although improvements have been made, we cannot remove completely the requirement for people to provide a statement of their circumstances so that entitlement can be established accurately. This is important to us in our desire to reduce error and important to customers to ensure that they are not missing out on any potential entitlement. Finally, we are also improving the linking rule further by extending the existing short linking rule to 12 weeks for ESA customers.

We believe the current arrangements strike a sensible balance, but we are conscious of the concerns expressed and the practical points raised, particularly by the noble Baroness, Lady Meacher. We continue to look at other ways of improving the claims process. I hope the noble Baroness feels able to withdraw her amendment.

My Lords, I thank the Minister for his comments. It is regrettable that he did not address the consequences of the two to three months’ delay before people can retrieve their benefits. That is what happens; therefore, there is an inevitable disincentive for people, particularly those with fluctuating disorders and severe mental health problems, to search for work with some kind of commitment. I am bitterly disappointed that he does not feel that the matter is sufficiently important in delivering the Government’s welfare reform strategy to make this relatively minor adjustment so that the necessary checks could be undertaken after the benefit is restored.

My Lords, the Government want this to work. That is why the linking rules are in place. We will continue to look at these things to see what further improvements may be possible. I do not see how we can move away from at least the requirement to make a claim, which is a key part of the benefit. However, I am not dismissive of the practical points that the noble Baroness raised, nor are my colleagues in the Government. We will continue to see what we can do to make sure these rules work effectively, which is what they were designed to do.

My Lords, with those assurances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that Report begin again not before 8.35 pm.

Moved accordingly, and, on Question, Motion agreed to.