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Lords Chamber

Volume 690: debated on Monday 19 March 2007

House of Lords

Monday, 19 March 2007.

The House met at half-past two: the LORD SPEAKER on the Woolsack.

Prayers—Read by the Lord Bishop of Chelmsford.

Restorative Justice

asked Her Majesty’s Government:

What action they are taking to implement their strategy to develop restorative justice.

My Lords, the Government's strategy is to encourage the use of adult restorative justice, to ensure quality of delivery and to continue to develop the evidence base to show what works for adults. We have invested £5 million in pilots and their evaluation, produced best practice guidance for practitioners and introduced legislation to provide further opportunities for the delivery of restorative justice. Restorative justice is embedded in the youth justice system.

My Lords, I am very grateful to the noble Baroness for that Answer. Does she agree that, notwithstanding the steps that the Government have taken and that she outlined, more has to be done if we are really to make restorative justice achieve the contribution that is needed to make prison a last resort and deter reoffending?

My Lords, I certainly agree with the noble and learned Lord that we need to do everything we can to reduce reoffending. Restorative justice seems to have a very beneficial effect from the victim’s point of view. We are working hard to see whether it can also contribute to reducing the level of reoffending.

My Lords, does the Minister agree that, given the tragic deaths of five young people over the past six days, it might be an interesting idea and helpful to invite the relatives to participate in this? After all, they know rather more about it than any of us.

My Lords, it is important to know when to introduce the idea of restorative justice. Many victims indicate that they would find that helpful. However, we must wait to see whether it would be helpful in all circumstances. I regret to say to the noble Lord that it is not always the first port of call after a tragic death that looks like a murder.

My Lords, has the Home Office conducted any research into restorative justice? Is there any information about whether it is beneficial to victims of crime?

My Lords, there has been some research, and consistent evidence shows that restorative justice increases victim satisfaction: at least 75 per cent of victims who choose to take part in the restorative justice process are very glad that they did so. The outstanding issue is whether it reduces the offender’s likelihood of reoffending. From the victim’s point of view, there is clear evidence that it is very beneficial.

My Lords, what steps is the Minister taking to encourage schemes being undertaken by voluntary organisations such as the Sycamore Trust in Wandsworth?

My Lords, the noble Viscount will know that we are very interested in encouraging voluntary sector involvement in these schemes and in entering into offender management generally. That is why the Offender Management Bill has been brought forward; it will enable voluntary sector organisations to play a better—and, we would say, a proper—part.

My Lords, the Home Office document, Restorative Justice: Helping to Meet Local Needs, included the suggestion that local criminal justice boards appoint champions or lead persons to take forward restorative justice work in local communities. How many local justice boards have responded and appointed such people in their areas?

My Lords, I do not have the figures with me but I shall be very happy to write to the noble Lord. We try to ask local criminal justice boards to incorporate this approach generally in their work, encouraging participation not just by the champions but by everyone—for example, the corporate alliance, the faith-based alliance and the civic alliance—involving the voluntary sector and the local authorities in these issues too.

My Lords, what action has been taken by the National Criminal Justice Board since it published its plans for this matter on its website in 2005?

My Lords, we have invested more than £5 million in evaluating the pilot schemes, and we are waiting for that evaluation. We hope for an outcome to the research by the end of the year but we do not have a fixed timescale. It is very important for us to understand the value in changing the outcomes. We have some very good figures for juvenile justice, where the statistics show that the reconviction rate under referral orders, for example, is the lowest at 44.7 per cent. The Safer School Partnerships are also doing very powerful work. However, it is not clear whether this is transferable to the adult estate.

My Lords, surely it is an encouraging indication of what is likely to happen in the adult estate. Can the noble Baroness assure us that research is being done urgently to establish whether adults respond in the same way, as I think most of us assume they would? That has a very close bearing on the next Question that she has to answer.

My Lords, we are undertaking that research, but it is important that we do not prejudge the outcome. I know that many of us would like it to be so, but whether it will prove to be so is yet to be seen.

My Lords, is it the Government’s intention to contemplate in England and Wales, as they appear to do in Northern Ireland, restorative justice schemes administered by double murderers?

My Lords, absolutely not. We have found that restorative justice conferences have been healing for those who have participated. I have had the benefit of witnessing some of these conferences, and they have been one of the most enthralling and uplifting things that I have been privileged to see.

My Lords, this is a development of such significance that I wonder whether the Minister would be prepared to give a Statement and initiate a debate in this House when the research is through, as I hope it will be within a year.

My Lords, of course that would be for the usual channels, but I should be very happy for restorative justice to be a subject for debate. I emphasise that, whatever its outcome may be in relation to reducing reoffending, it is incontrovertible that it has a hugely beneficial effect on victims—a healing effect which is much to be valued.

My Lords, given the Minister’s clear enthusiasm for restorative justice, does she think that enough people are trained in this method? If not, what can the Government do to ensure that more people are capable of administering this technique?

My Lords, training is ongoing, and I particularly invite the House’s attention to the work undertaken by the Safer School Partnerships. Many of the officers involved are using restorative methods in schools to deal with difficulties between young people.

Prisons: Overcrowding

asked Her Majesty’s Government:

How many prisoners are being held three to a cell as a result of prison overcrowding.

My Lords, on the last day of February 2007, the number of prisoners held three to a cell designed for two was 1,299. No prisoners have been held three to a cell designed for one—that is, a trebling—since March 1994.

My Lords, I thank the Minister for that slightly depressing reply. Is she aware that on the nights of 25 and 27 February, there was serious rioting at Deerbolt Young Offender Institution and that a prison officer suffered a fractured skull? On 26 February, three alleged suicides in prison were reported; on 12 March, two more alleged suicides were reported; and, last Wednesday, a prisoner was found dead in his cell, allegedly killed by another prisoner. Does the Minister accept that incidents such as these are related to the current levels of overcrowding and that our prisons will continue to be dangerous for both staff and prisoners until there is a change in policy?

My Lords, I agree with the noble Baroness that it is most distressing and disturbing to hear of any self-inflicted deaths or disturbances. However, it is right that we should hold them in balance, because notwithstanding the fact that the prison population has increased, self-inflicted deaths have gone down. The figure is likely to be marginally lower in 2006-07 than it was in 1996-97. I appreciate that we are in difficult times, but I congratulate the staff on the good work they are doing to keep people safe.

My Lords, can the Minister give the House any information about the effect of overcrowding on training and education programmes? Does she see a link between the overcrowding that the Prison Service is now enduring and the sharp rise in the reoffending rate for prisoners?

My Lords, I do not think there can be a direct correlation. To take the education figures as an example, one might expect that if prison numbers go up, educational attainment will go down, but that is not the case. The number of prisoners engaged in learning had risen to 35 per cent by December 2006, from 32 per cent in August when the LSE took on responsibility for offender learning. It is expected that 36,000 offenders in custody will achieve skills for life outcomes in the 2006-07 academic year. Offender learning in custody is expected to achieve 108,000 other accredited qualifications during 2006-07. The number of basic skills awards achieved in prison has gone up markedly. Although one might have anticipated that things would get worse, in fact, they got better. I commend the ALI report that commends the Government for the good work they have done on education.

My Lords, how many prisoners are being held more than 100 miles from their homes and families—which has consequent effects—as a result of these overcrowding pressures?

My Lords, I do not have figures about those held more than 100 miles away. My noble friend will know that every effort is made to ensure that prisoners are kept as close to their normal place of abode as possible and that the expectation is that they will be within 50 miles. I can certainly write to my noble friend about that figure.

My Lords, I do not know whether we have more writers in residence. They have contributed hugely to the improvement in the attainment level of prisoners and the noble Baroness will know that we have tried to support and encourage them. We are very grateful for all the hard work that they do. I do not know whether the figure has gone up or down, but I shall write to the noble Baroness to make sure that she and the House are aware of it.

My Lords, further to the Minister’s reply to the noble Lord, Lord Hurd, the Chief Inspector of Prisons, in her annual report, stated that in overcrowded local prisons only 30 per cent of prisoners said they had done anything in there that would make them less likely to reoffend. Is the Minister satisfied with that percentage? Given the enthusiasm she expressed earlier for restorative justice, how does she propose to reconcile the competing demands of restorative justice and prison overcrowding?

My Lords, the House will see from the way that we are approaching offender management that two things have to be addressed: first, the proper identification of the risk the offender poses; and, secondly, addressing the needs of the offender to reduce the likelihood of offending. We believe that the end-to-end offender management process we have put in place is the most effective way of reducing offender reconviction rates in the long term. It will enable us to get the proper balance: keeping victims safe but offenders rehabilitated.

My Lords, does the noble Baroness agree that, as, it seems, three or four years must elapse between the decision to build prison places with Treasury consent and the first prisoner going into such an institution, the short-term solution must be to turn to some other factor? Will she indicate Home Office policy on the urgency of this matter?

My Lords, we are clear that those who are dangerous and violent should go to prison, but that there are good alternatives to imprisonment for those who are not—tough community penalties, which bite on the offending and help people to change.

My Lords, is it at all true that, as one weekend paper speculated, cargo containers are to be used as cells in some prisons? While on that point, has the Minister studied the report of the noble Baroness, Lady Corston, on the cost benefit that could be established if women’s prisons were abolished?

My Lords, there is no truth in the suggestion that cargo containers are going to be used. As the House will know, I commissioned the report of the noble Baroness, Lady Corston, because we want to look at what alternatives there may be for women who are not dangerous or serious offenders, but who could be dealt with more creatively in the community.

Armed Forces: Cyprus Accommodation

asked Her Majesty’s Government:

What is their assessment of the state of the housing of the United Kingdom’s military component of the United Nations force in Nicosia, Cyprus; and who is responsible for its maintenance.

My Lords, since this Question was tabled there has been a house fire at RAF Akrotiri in Cyprus, which tragically resulted in the death of three people. A thorough investigation has commenced, and our thoughts are with the families and friends of the deceased at this very difficult time.

British military personnel serving with the United Nations force in Cyprus are accommodated at the Ledra Palace Hotel. The accommodation there is unsatisfactory, but responsibility for its maintenance lies with the Republic of Cyprus Government. We continue to make representations to them about its condition.

My Lords, I thank the Minister for that reply and endorse the sentiments he expressed at the beginning. He recently replied to the noble Lord, Lord Kilclooney, that a Defence Minister had visited last September and that every effort was being made through representations to improve living conditions. Did the Minister actually see, in the former five-star Ledra Palace Hotel, what that noble Lord saw recently: electrical points hanging out of the walls in uninhabitable rooms, accounts of sewage coming back from the toilets and a total absence of air conditioning in the bedrooms? What specific action did he insist on, and on what timescale? What has been done since last September?

When these matters were put to the president of Cyprus, he said that Cyprus paid its contributions to the United Nations. Thousands of British tourists visit Cyprus; are these shameful conditions the best that we can do for our troops?

My Lords, I agree with my noble and learned friend that it is totally unsatisfactory. It really is not good enough. Since my right honourable friend the Minister for the Armed Forces visited those facilities very strong representations have been made to the Government of the Republic of Cyprus and to the United Nations. We expect to see improvements made quickly to the accommodation in which our troops are suffering.

My Lords, I can confirm from my own observations that everything that my noble and learned friend Lord Morris has said is absolutely correct. How long have representations been made without anything being done about them? Is there no adequate inspection or monitoring system, and for how long will we allow this to continue?

My Lords, I understand that this situation has existed for several years. It is not good enough and, as I have said, representations have been significantly increased following the visit by my right honourable friend last September. We expect to see improvements made.

My Lords, what implications might the recent steps by both Turkish and Greek Cypriots to free up access to Ledra Street and the two halves of the city of Nicosia have for the British UN troops manning that part of the green line? Is it not time to look seriously at converting UNFICIP into an observer force only? That would, of course, have implications for the troops’ accommodation that is so clearly unsatisfactory.

My Lords, I am not aware of the specific changes that the noble Lord mentions. I will write to him in response to his question. In addition to the representations, we are looking at the actions that we could take ourselves. However, we feel that this is the responsibility of the Republic of Cyprus Government, and we expect them to rectify it. We are looking at other options such as building our own accommodation but, given the time that that would take, the answer is to address the conditions in the Ledra Palace Hotel.

My Lords, the British Government have a very large and underutilised sovereign base not far from Nicosia. I assume that there is a good deal of surplus accommodation there. Could that not be part of the solution to this problem?

No, my Lords. My understanding is that moving the personnel to another base would not provide a solution.

My Lords, providing a solution ourselves in the form of bricks and mortar would, presumably, be exactly what the Government of Cyprus want. Is there no other recourse that we can take besides making representations, which clearly do not work?

My Lords, the noble Lord may be correct about the purpose behind the lack of progress from the Republic of Cyprus Government. However, we feel that the most productive way to get this issue resolved is to make representations to the United Nations and to the Government.

My Lords, is not the real answer that the British Government should be more robust in making representations to both communities on the island of Cyprus, and to the administrations in both parts of that country, to come to an honourable and just solution so that the country can again be reunited?

Absolutely, my Lords. I agree totally with my noble friend. However, while that is happening we must urgently address our troops’ accommodation.

My Lords, what has been the response to the representations made since the Minister’s right honourable friend’s visit last September? It is now March.

My Lords, given that the situation has not improved, it is clear that the results have not been satisfactory. What we really need is action to improve the accommodation in the Ledra Palace Hotel. That is what will address the situation.

Schools: Biometric Data

asked Her Majesty’s Government:

What regulations they propose to make regarding the collection and storage of the biometric data of children in schools.

My Lords, the Government have no plans to make regulations on the collection and storage of the biometric data of children in schools. Biometric data, like all data, are covered by the Data Protection Act 1998.

My Lords, I thank the Minister for that reply, but is he aware that the practice of fingerprinting in schools has been banned in China as being too intrusive and an infringement of children’s rights? Here, it is widespread. We have even had a head teacher tricking three year-olds into giving their fingerprints by playing a spy game. Will the Government ban schools from carrying out this practice, unless parents specifically opt into the system following full and independent information about the so-called benefits of the system and the dangers of identity fraud?

My Lords, as I said, biometric data are covered by the Data Protection Act, whereby subjects must be given fair processing notices regarding the data and the purposes for which they will be used. Although children are by law the data subjects, it is normal, particularly in primary schools, for parents to be informed of data collected on their children. My department issues fair processing guidelines for schools, which is explicit about the need to see that such information is made fully available to parents.

My Lords, notwithstanding the assurances given by the Minister, does he not recognise the genuine concerns to which these issues give rise? These are serious matters of principle. What safeguards are in place to ensure the security of the data once collected? Are there any plans to link these data to the children’s information-sharing index?

My Lords, these data can be held only by the schools. They cannot be shared more widely. The guidance, which my department issues to schools, says:

“Data controllers have to provide data subjects with details of the data that they hold on them, the purposes for which they hold that data, and any third parties to whom it may be passed on. This is referred to as a ‘fair processing notice’”.

The arrangements are set up fully in the guidance. We believe that the controls are adequate.

My Lords, can the noble Lord explain the exact purpose of this activity? I think that most people would be somewhat alarmed by the idea of having fingerprints taken and would connect it with criminal offences. If no research is being undertaken into why these figures are being collected, it seems a little bit vague.

My Lords, biometric technology systems are normally used for three specific purposes in schools: library systems, attendance records and cashless-catering for school meals. The use of biometric systems of this kind can, for example, facilitate the take-up of free school meals, as there is no perception of those who are and who are not taking free school meals and therefore there is no social stigma attached. There are very good reasons why these processes are used and I think that most noble Lords who reflect on the matter would regard them as beneficial.

My Lords, the Minister usually displays a great understanding and sympathy of what it is to be a child. Is he not concerned about the impression that children will get of what it is to live in a free country and what it is to be British if, in order to get the right school meals and other things, they can have their fingerprints taken? That seems completely astonishing to me. I suggest that the Government think hard about this and change their minds.

My Lords, I would be happy to go with the noble Baroness to a school that operates these systems without any contention whatever. So far as the pupil is concerned, once they have provided this information, they have a card that they can use to access library services, free school meals and attendance registers in a more accessible and less intrusive way than was previously the case. As I said in response to the noble Baroness, Lady Howe, in the case of pupils who are eligible for free school meals, there is a great deal less social stigma than used to be attached to people having to show special forms for that purpose.

My Lords, how many schools hold records of children’s fingerprints? What plans do the Government have to ensure that these records are not used in identity fraud?

My Lords, we do not have the data on individual schools. We regard it as the duty of the school to see that the material is properly safeguarded.

My Lords, the Minister mentioned third parties and therefore implied that third parties may have access to the data. Could he delineate what sort of third parties might have access to the data?

My Lords, only those to which clear authorisation has been given by the school. I am happy to specify to the noble Lord the precise circumstances in which that takes place.

My Lords, is there any truth in the articles that I have read—I am sure that all noble Lords have read them—that children in the sixth form whose parents wish them to go to university will have to advise someone that their parents themselves had gone to university? According to the articles that I have read, this could have a detrimental effect on their passing out to go to university.

My Lords, my noble friend is referring to a different issue, which was raised last week by my honourable friend the Minister for further and higher education. It is indeed the case that we are looking to provide more information on the backgrounds of students who are going on to university, but not in any way to dissuade them from proceeding on to higher education.

My Lords, the Minister has made much of the need for biometric data for school dinner cards, otherwise known as smart cards. Does he accept that you do not need biometric data on them anymore than you do on a John Lewis loyalty card for them to be effective and not to stigmatise the take-up of free school meals?

My Lords, this has been found to be a reliable way of ensuring that the services can be made available. The onus is on those who think that it is not a reasonable way of proceeding to make their case.

My Lords, while I have enormous respect for the Minister, his answer smacks of considerable complacency. This is widespread across the country. Children are being fingerprinted without their consent or their parents’ consent. They are being victimised if they do not comply by not being allowed to use the library, by being threatened with exclusion and by being made to go to the back of the dinner queue if they do not have one of these cards. Will he look into this and find out what the real situation is rather than the theoretical one that he has so reasonably outlined?

My Lords, there is a certain amount of scaremongering in the noble Baroness’s question, which I simply do not accept on the basis of the information that has been made available to my department.


My Lords, with the leave of the House, a Statement on Modernising Medical Careers will be repeated by my noble friend Lord Hunt of Kings Heath after 4.30 pm.

Local Authorities (Mayoral Elections) (England and Wales) Regulations 2007

My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the draft regulations be referred to a Grand Committee.—(Baroness Amos.)

On Question, Motion agreed to.

Foyle and Carlingford Fisheries (Northern Ireland) Order 2007

Electricity (Single Wholesale Market) (Northern Ireland) Order 2007

Northern Ireland Policing Board (Northern Ireland) Order 2007

My Lords, I beg to move the three Motions standing in my name on the Order Paper.

Moved, That the draft orders laid before the House on 6 and 19 February be approved. 10th Report from the Statutory Instruments Committee and 12th Report from the Merits Committee, Considered in Grand Committee on 15 March.—(Lord Rooker.)

On Question, Motions agreed to.

Planning-gain Supplement (Preparations) Bill

Read a third time, and passed.

Consolidated Fund (Appropriation) Bill

My Lords, I beg to move that this Bill be now read a second time.

Moved, That this Bill be now read a second time.—(Lord Davies of Oldham.)

On Question, Bill read a second time; Committee negatived.

Then, Standing Order 47 having been dispensed with, Bill read a third time, and passed.

European Union (Information, etc.) Bill [HL]

Report received.

Welfare Reform Bill

Report received.

Clause 1 [Employment and support allowance]:

1: Clause 1 , page 2, line 4, after second “his” insert “overall”

The noble Lord said: My Lords, I shall speak also to Amendments Nos. 2, 4, 5, 7, 8, 12 and 13. All the amendments on today’s Marshalled List are predicated on the fact that the Bill introduces a new, albeit replacement, social security benefit. Although the Ministers made a very good fist in Committee of explaining how the Government expect the employment and support allowance to work, I am afraid that there is still more to discover.

This first group of amendments covers a point that was made crystal clear in Committee; that is, the same system of points used for incapacity benefit is to be used in the future. I am grateful to the Minister for arranging for some of us to see a presentation by the computer firm which is to design the program to make this happen. The customer will be asked a whole series of questions—they are called descriptors in the jargon—about his daily life and any physical and mental problems he has. On Second Reading, the Minister made a welcome announcement that the descriptors are to be added together to produce a final score which will inform the social security office whether the customer has a right to the benefit and, if so, at what level.

We have had numerous debates on this issue in this House and another place, so I do not need to reiterate the arguments for this approach. I am sure that the Minister will say that these amendments are unnecessary; the Bill as it stands allows the accumulation of mental and physical limitations and the Government have given repeated assurances that the points from both mental and physical disabilities will be added together. However, those assurances have only been won by strong lobbying from outside lobby groups as well as opposition from all sides in both Houses. I would like to make sure that the Government do not suffer a change of heart on the principle at any point in the future.

I have changed the drafting of these amendments significantly since Committee to make sure that they do not in any way prevent the Government doing what they want to do. I hope that the Minister will accept these amendments as confirmation that his assurances will indeed be acted on in the long term. I also trust that he will accept that it would be quite wrong for the Government to change their mind at some point in the future and decide that only one set of descriptors should be used to make this judgment—in other words, that there is never a case to be made that physical barriers cannot carry mental impediments with them. I beg to move.

My Lords, these amendments and the arguments put forward by the noble Lord are very similar to those that we discussed in Committee, as he acknowledged. The noble Lord, Lord Skelmersdale, wants to ensure that we consider the effects of both physical and mental health conditions when deciding whether a customer is eligible for either employment and support allowance or access to the support group—the tests of limited capability for work and limited capability for work-related activity respectively.

I will deal with limited capability for work first. Under Clause 8, customers are awarded points depending on the functional effects of physical and mental health conditions. They are determined as having limited capability for work where they score 15 points or more. The details of this are set out in the draft regulations under Clause 8, which were shared with noble Lords before Committee. As noble Lords will recall, and as the noble Lord, Lord Skelmersdale, acknowledged, I announced at Second Reading that we will allow points scores for mental health and physical descriptors to be added together in the Clause 8 assessment. This decision has been reflected in Regulation 3(3) of the draft Clause 8 regulations, which I published for noble Lords.

The Clause 8 and 9 assessments assess very different concepts in very different ways. Limited capability for work-related activity cannot be based on the Clause 8 points scores, as there is no direct correlation between these scores and whether a person is likely to have limited capability for work-related activity—the purpose of the Clause 9 assessment. Instead, customers are determined as being eligible for the support group where they satisfy one of 46 functional descriptors found in the schedule to the draft regulations under Clause 9. Customers need to meet only one of the 46 descriptors to qualify for entitlement to the support group regardless of whether this relates to physical functioning or mental functioning. We will consider the effects of both physical and mental conditions when considering whether customers meet these functional descriptors. Hence, in carrying out both the assessments under Clauses 8 and 9, we will consider the effects of physical conditions and mental health conditions on a person's functional capability. That is the assurance the noble Lord is seeking.

During Committee, I also explained that we do not need to make changes to the Bill to allow us to consider both physical and mental conditions in these assessments, as the use of “physical or mental condition” does not limit us to considering these conditions separately. In fact, changing the wording in the Bill to “physical and mental condition”, as the noble Lord proposes in his amendment, could be interpreted as meaning that customers would have to have both a physical and mental health condition before they could be determined as having either limited capability for work or limited capability for work-related activity. That is clearly not appropriate and I am sure is not what he wants to happen.

As I said, our draft regulations set out very clearly our intentions on this matter, and particularly that we will combine physical and mental health scores when determining whether a customer has limited capability for work.

As noble Lords are aware, the revised PCA is based on the recommendations made by the technical working groups involved in its review, a copy of which was published last September. Following the initial limited evaluation carried out last October, a further and more detailed evaluation is about to start. This will be carried out by the technical working groups, which are independent of the department, but members of the PCA consultative group will also take part. A report of that phase 2 evaluation is due to be published in the summer and copies will be placed in the Library.

I hope that that gives the noble Lord the assurance that he seeks about our intentions and the fact that there is a process of review under way—and, accordingly, that that will enable him to withdraw his amendment.

My Lords, I am very grateful to the Minister for going rather further than he did in Committee in explaining this matter. It is clear to me at least that the Government of the day would have to come back to Parliament to change the regulation to achieve the use of a single descriptor at any one point. The Minister is looking at me very questioningly, however, so I shall give way.

My Lords, it is true that if we wanted to change what we said in how the draft regulations are currently prepared we would need revised regulations. That is certainly the case.

My Lords, that is exactly what I thought. I am also grateful for the confirmation that any one descriptor, either physical or mental, will be used to meet the criteria under Clause 8. I look forward to the evaluation of the technical groups that he mentioned when it appears on my horizon. The Minister has been most helpful and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

3: After Clause 1 , insert the following new Clause—

“Public involvement

(1) This section applies where a person in receipt of employment and support allowance who is a service user is asked by a public, charitable or educational body concerned with health or social care to advise on service standards and delivery.

(2) The Secretary of State may make regulations providing that—

(a) a person who provides advice under subsection (1) shall be treated as having limited capability for work under section 8 in relation to the activities undertaken in pursuance of subsection (1) if he would otherwise be so treated; (b) in the case of contributory allowance or an income related allowance, any fee received in recognition of the service undertaken shall be subject to such disregard and averaging as may be prescribed; (c) in the case of contributory allowance or an income related allowance, reimbursed expenses shall be disregarded as income in such cases as may be prescribed; and (d) regulations made under section 16(3)(a) shall not apply in relation to advice undertaken in accordance with this section. (3) In this section “service user” means a person with current experience of using or requiring public services relating to their ill-health, disability or caring responsibilities.”

The noble Baroness said: My Lords, this is very similar to the amendment that I moved in Grand Committee. I seek to clarify the problem and set out what I believe is the solution. The Minister said in Committee that the amendment was unnecessary as the Bill contained relevant powers, but I was not reassured by his response. That is why I have tabled the amendment again.

I shall first explain what “public involvement” is in connection with the Bill. It is involvement in the planning and delivery of public services by someone in receipt of disability benefits. That could be membership of a committee that monitors the quality of services or that seeks to develop good practice standards; it could mean participation in a focus group or research projects, social work training or staff recruitment panels; it could also mean participation in inspection teams and social care and health services by advising on what is important to people using those services.

The amendment is important because involvement is a statutory requirement for all public bodies concerned with the delivery of social care and health services and must now include all people who use those services, which includes disabled people. There are, of course, disabled people who willingly take part in all those activities who are not on benefits; the problem that the amendment addresses does not lie with that group of people. The amendment is important because it tries to remedy real injustices uncovered in the sort of participation that I have described for those on benefits.

Before going any further I must explain that the kind of public involvement that I spoke about is likely to be intermittent. Meetings of these bodies are nearly always occasional; if they are regular it might be for a few weeks or months, or even six months, but they are never as regular or often as, say, once a week for a year, so this involvement must never be confused with paid work. This is not “therapeutic work”, which was the term used to describe work that people on incapacity benefits were allowed to do up to 2002; nor should it be muddled up with work-related activity under the Bill. Involvement might lead to work-related activity but, in itself, should be regarded as an entirely separate matter.

The amendment puts forward four remedies. The first is that disabled service users are not ready to come off benefits just because of their public involvement. Job centres often believe that, if a disabled person agrees to public involvement, especially if the committee sounds rather grand, it means that they are no longer incapable of work. That misunderstands the whole reason that a person has been asked to participate, which is their ill health—which is often severe—or their disability. The amendment therefore makes it clear that a person who is so involved cannot have their benefits taken away simply because of this involvement. It puts them on the same footing as local authority councillors, who cannot be taken off incapacity benefit just because they are councillors.

The second remedy is to allow a modest payment to be made to people on means-tested benefits—under the Bill, income-related ESA—within the amount allowed by the permitted work rules. Those on a contributory strand of ESA are allowed to be paid up to £86 in any one week, but the poorest people, those on means-tested ESA, can be paid only £5, £10 or £20 a week, depending on their circumstances, before their benefits are reduced. Under the amendment, payments received would be averaged over an appropriate period and the amount for those on means-tested benefits raised as prescribed in regulations. This would mean that the poorest people on benefits would not be excluded from offering their advice on public services.

The third remedy is to reimburse expenses incurred by a disabled person attending meetings of a public body. Unbelievably, reimbursed expenses for travel to meetings for those on benefits are treated as earned income, and so are deducted from such a person’s benefits unless that person has volunteered. Under the amendment, reimbursed travel expenses would be just that and could be accepted by those receiving a modest payment for involvement.

The final remedy that the amendment seeks is to disapply the notional earnings rule for service users participating in meetings. At present, if service users volunteer to help by involving themselves in the ways described, they must tell Jobcentre Plus staff, who must ask them whether they could have been paid. If the answer is yes but they decided not to accept payment because they did not want any benefits deducted, this amount is deducted anyway from their benefits. I shall repeat that because it is so outrageous: an amount that the person in question has not received is deducted from their benefits as though it had been received. That extraordinary state of affairs is called the notional earnings rule. The amendment would disapply it for such a group of volunteers.

As was pointed out in Committee, local authority councillors do not have to worry about whether they will be allowed to keep their benefits, as they are specifically singled out for special treatment under the Bill, as is the case now. Council work is treated as exempt and may not be used to assess capacity for work. What is more, reimbursed travel expenses for the journey from a councillor’s home to the place of their duties are ignored. Why should those who participate in advising public bodies be treated differently? One of my correspondents wrote:

“It is a classic case of no joined up thinking in government. They want more disabled people in public service but won’t consider the benefits implications”.

It is difficult to estimate how many people we are talking about, but it could be around 10,000. This is of course a tiny percentage of the 2.7 million people who currently claim incapacity-based benefits.

Will this be a cost to the public purse? No, it will not, because, in practice, people decline involvement rather than risk having their benefit continuity disrupted. The current rules mean that every other person on the public body is likely to be able to receive modest payment for their participation, but that a disabled person on means-tested benefits is barred for the reasons that I have given. I have not wearied the House with illustrations from the files of the Disability Rights Commission, but I have many with me which show that this is a growing problem. The amendment is modest, but it is important, and I urge the Minister to consider it sympathetically. I beg to move.

My Lords, I support the broad thrust of the amendment. My perspective is that of a chairman of a mental health trust. As such, I am regularly involved in committees, where we make every effort to involve service users. However, it is incredibly difficult to persuade service users to become involved in our work. As I understand it, one key issue making it so difficult is the consequence of small payments on people’s benefits. Most of our service users receive income support and a disability premium. Most have never been well enough for long enough to qualify for the contributory incapacity benefit; therefore, they are subject to a very tight earnings disregard—precisely £5 per week in many cases. As a result, their benefits are affected if they attend more than one meeting a week.

That terrifies people. Any change of circumstance can cause all sorts of problems, with which I know the Minister is familiar. Our people simply cannot cope with all that uncertainty and fear; therefore, they keep their involvement down to a level where their benefits will not be affected, and that, as you might imagine, is minimal. Please excuse my throat; I am losing my voice.

As the noble Baroness, Lady Thomas, argued, some way needs to be found to disregard those small earnings of people with severe and enduring mental health problems, for whom building up the capacity to take a job is a complex and often slow process. I am not suggesting a general increase in earnings disregards, as I realise that that would be extremely costly. I understand the implications of that. I appreciate that what is right for this group might then be demanded for others. However, I think that some special arrangements would be reasonable for those with enduring and severe mental health problems—and perhaps for one or two other small groups with particularly difficult problems and fluctuating symptoms—who are so difficult to reintegrate into work.

Another development might be directly affected by this amendment, and it would be very sad if it were. We plan to develop a team of service users to operate our foundation trust membership office. We thought we would need four full-time people, all of whom would be service users, but we want to take on six, eight or even more, depending on the degree of their disability. The aim is that they will work part time for as many hours as they can manage but that the required number of people will be available each day to cover the work. We hope that, over time, people could increase their hours gradually, ultimately getting back into employment. The team would provide ongoing opportunities to gain work experience. If it worked, it could be repeated across the trust and, no doubt, across the country. We have a capacity to try to assist the Government’s welfare reform agenda in preparing people with severe and enduring mental health problems for work.

At the beginning, we can perfectly reasonably pay the permitted earnings and no more. I think we can argue that. However, over time, as people began to build up their capacity to contribute more fully, it would be incredibly unfair to pay just that tiny amount. If their benefits are adjusted to take account of small increments in income—and, in many cases, on a very irregular basis, as the noble Baroness, Lady Thomas, said, together with all the uncertainties that that entails—our job preparation project and, no doubt, many others like it simply will not happen.

I have to confess that it is hard to imagine the benefit system coping with such initiatives in a constructive and flexible way. However, could the Minister’s department consider an approach to severe and enduring mental illnesses and explore whether some method can be found to enable us to overcome the difficulties that we see? If flexibility could be achieved for the most disadvantaged groups, more severely mentally ill people could find their way back into a normal life.

As I have suggested, a similar approach might be available to other very small, particularly disadvantaged groups. It is of the utmost importance that, regardless of what is done about benefit disregards, service users in our membership office group and others like it who undertake small pieces of work must not be deemed capable of work and expected to apply for jobs before they are capable of managing.

The fact that someone can work 15 hours a week in a mental health trust as a service user does not mean that they are ready to take a job. Our trust and others like it will make all sorts of allowances by having extra staff to cover for late arrivals at work, underperformance or absences. If sanctions are applied in that situation, the ability of the mental health trust, as I have suggested, to contribute to the Government’s welfare reform agenda would simply be destroyed. As a mental health trust our objective will be to place such service users in open employment just as soon as we feel that they can cope; in fact, we take them on ourselves as members of staff. It will be important for the DWP and trusts to work together to ensure that the entire project and others like it are not torpedoed by the use of blunt benefits instruments. The question for the Minister is therefore whether the legislation can be sufficiently flexible to allow sensible decisions on the ground. I look forward to hearing his response to this important amendment.

My Lords, I support the amendment, because, having read all the information from the Disability Rights Commission, I think this is an extraordinary situation. If I am wrong, I will be pleased to hear from the Minister. First, the very sensible passage of a previous Act that compelled such bodies to consult users was an excellent thought. It also reflects the human rights legislation in a number of ways, so that individuals, whether children or patients, have a right to have their views considered. Now we have a situation where those providing services actually want to involve users, whether in research, focus groups or recruitment sessions. It is a bit odd that there seems to be a difference between how local councillors are treated and how members of this group are treated. I am concerned that the very poorest users, those on means-tested benefit, are likely to suffer the worst deprivation and therefore their voices should be heard. They are disadvantaged far more than anyone else.

If the Minister was applying the councillor test in all these areas, where would there be a difference? Is there a difference in the way that some of these groups are treated? If so, why? Can it really be justified? It would be important for the debate to hear the Minister’s answer on that point.

My Lords, I was not going to intervene in this debate, but two things occur to me, having heard the discussions between the noble Baronesses. The duty to consult disabled people and users of a particular service is quite different from employing them, either for cash or for free. Secondly, the Minister could perhaps use this opportunity to explain what he thinks is involved in work-related activity. I agree with the point made by the noble Baroness, Lady Meacher, that unpaid work—employment is the wrong word because it carries with it the idea of payment—for the service bodies might well lead to full-time employment. That could therefore come under the heading of work-related activity. It would be extremely helpful if the Minister could respond to that point.

My Lords, like other noble Lords, I very much hope that my noble friend will be able to support the amendment or that, if he cannot do so in its present shape, he can see how far he can meet these concerns by Third Reading. I hope that he can do that for three reasons. First, as services need to be reviewed and assessed continually by the users, we must engage users of services—they own them and they can shape them, with the result that the services would be improved. We have surely learnt that over the past 20 years in all our public service activity.

Secondly, when a service user is engaged in reviewing services, he should not be out of pocket. A well established social security rule is that, if you can be paid, you are deemed to have been paid whether you have accepted payment or not. I understand the complexities associated with that; without it, we would have manipulation between income and capital, between capital and income and so on. None the less, there is a perfectly good read-across to local authority work in relation to this and no one should be out of pocket. Ideally, people should have modest recompense for their time and their activity.

Thirdly—this is absolutely right—one of the problems, which we know from people on disability benefit, is that their world becomes smaller. They lose the knowledge network of jobs and of capacities for entering the world of work, and they lose the confidence to enter the world of work. Although it may take one year, three years or 10 years before someone is ready to return to remunerated work, with tax credits and so on, this proposal is a useful step.

We have made these moves with volunteering; we have already established in previous legislation that, if someone volunteers for something, that will not mean that they are regarded as ready for work. We have established those rules for local authorities, too. There are plenty of precedents, so I hope that we will do the same in this case. Other people have rightly said that ultimately we should recast the whole of the earnings disregard rules. No cost is established on this; no benefits will be “less paid” than they would be otherwise. In practice, people will not expose themselves to a loss of benefit. This is a nil-cost amendment.

If my noble friend feels that he cannot go all the way—I would understand that on the earnings disregard—at least the rule should be extended to non-departmental public bodies, where we want the input of service users across the board, not just for mental health trusts and the like, but also for other public bodies and public quangos, where we want to expand the world of disabled people, lone parents and so on and get the quality and value of their experience. I very much hope that, if my noble friend cannot go all the way with the amendment, he will take it away with the understanding that he will seek to make movement towards the spirit that I am sure the entire House shares.

My Lords, that was a very positive and perceptive intervention by the former Minister, the noble Baroness, Lady Hollis. I was particularly struck by her comment that this is a nil-cost amendment. Whether there is a cost will be very significant in relation to whether Members from many Benches will support it. I specifically ask the Minister to address that point. In practice, does he believe that there will be costs in accepting it? In theory there might be, but we on these Benches believe that, in practice, it is a nil-cost amendment.

My Lords, I thank the noble Baroness, Lady Thomas, for raising this matter and giving us a chance to debate again an extremely important issue. It gives me an opportunity to make an announcement that will go some way towards addressing the concerns raised by noble Lords.

The amendment provides a new power to disregard payments received and to ensure that activity undertaken as part of the service-user involvement would not be taken into account in calculating benefit entitlement or payments. The Government recognise the importance and value of encouraging participation in public life and in learning new skills, gaining experience and building confidence. Service-user involvement involves many of the skills and activities in which people routinely engage in everyday employment. Indeed, that could count as part of a person’s work-related activity when a requirement is introduced in time.

The noble Lord, Lord Skelmersdale, asked me to define “work-related activity”. I refer him to Clause 12(7) of the Bill, where it is defined in a wide manner:

“In this Part, ‘work-related activity’, in relation to a person, means activity which makes it more likely that the person will obtain or remain in work or be able to do so”.

That point has been touched on by a number of speakers. I was interested in what the noble Baroness, Lady Meacher, said about using the foundation trust as an opportunity for people to job-share, to help them to gain confidence and to get closer to employment.

We are aware of the concerns that have been raised about how current benefit rules can make it difficult to ensure service-user involvement. However, we believe that, in relation to receiving benefits to participate in such activity, the benefit rules provide a fair balance between encouraging participation and creating the correct work incentives, while also protecting the public purse.

It is important to remember that encouraging people to work, build skills and increase their confidence is the foundation on which ESA is built. Our goal is to help as many people as possible to leave benefit dependency and to support themselves through work, with all the advantages that that brings. As part of this process, we recognise that part-time work can be important to well-being and to developing self-worth, and that it can act as a stepping stone to sustained work off benefits. That is why we have the permitted work rules in incapacity benefit. We think that they serve an important purpose, so we plan to bring them forward to ESA customers. These rules aim to act as a valuable gateway into the world of work and give claimants the opportunity to explore what kind of work is right for them. Moreover, the permitted work rules are generous and, combined with the voluntary work rules, provide customers with a wide range of opportunities to try out work for themselves.

We have been looking for more flexible ways of helping people to take up opportunities and to increase their options without fear of their benefits being removed straightaway. One of the advantages of introducing a new, unified benefit is that it provides the opportunity to peel back the complex layers and rebuild, making improvements where we can. We have looked in particular at how the permitted work higher limit, which generally applies only to the contributory benefit, could help more people to try out work. As a result, I can announce today that, within ESA, we will be aligning the existing permitted work higher earnings limit between the contributory and income-related elements of the benefit. This will be a significant step in addressing the issues raised. Anyone claiming ESA will be able to earn up to £86 per week for up to 52 weeks, without it affecting their benefit entitlement. This is an important change, which will provide many more people with the opportunity to realise their aspirations. I am sure that noble Lords will join me in welcoming the change.

To illustrate the overall impact of the change and how it will be of benefit to many more people, your Lordships may find it helpful if I provide an example. A customer who is receiving income-related ESA would be able to carry out permitted work for up to 16 hours and earn up to £86 per week for up to 52 weeks—that is, at existing rates. Currently, a man in similar circumstances on income support would have his benefit removed pound for pound for anything over £20 that he earns. That is a substantial change. At week 40, let us say, the customer’s self-esteem and health are such that he feels able to move into sustained full-time work, safe in the knowledge that he will be protected by the generous linking rules and supported not only by his regular wage but by the tax credits system and the return-to-work credit, which provides a generous £40 per week of additional support for 52 weeks if earnings are below £15,000.

We want to encourage participation in public life and it is right that people should be given the opportunity to help themselves whenever they can. That is why we have recently changed the guidance on applying the incapacity-for-work test to emphasise that, when people take part in service-user involvement, they should not automatically be sent for a reassessment. A reassessment should be done only where there are specific reasons for believing that the work that a customer is doing demonstrates that they no longer satisfy the conditions of entitlement to the benefit. We intend that similar guidance will apply to ESA in future.

We also believe that people should not be allowed to keep all their benefits while undertaking work or receiving remuneration for other activities, such as paid service-user involvement. That is subject to the rules that I have just outlined. There is an important balance to be struck between income from working in and representing the community, and avoiding duplicate provision from the public purse.

A number of specific points were raised. The noble Baroness, Lady Thomas, referred to service-user activities not being paid work. We do not agree that that is a helpful distinction. Service-user involvement involves many of the skills and activities in which people routinely engage in their everyday employment. In creating any distinction, we would be dismissing the value of service-user engagement in helping disabled people to feel confidence and to develop skills that will help them to find other types of work. As such, service-user involvement could count as part of a person’s work-related activity.

My Lords, could the Minister help me on this? He spoke very carefully; I listened to the syntax. What he said is very welcome indeed and very sensible; I am sure that we all congratulate the Government on that. But he said that that involvement “could” count as work-related activity. What people, if any, might not qualify for the £80 or so a week disregard that will otherwise be on the new employment and support allowance? Who would not come within the scope of the change?

My Lords, I believe that everybody who is on employment and support allowance will be within the scope of that change, whether they are on the income-related strand or the contributory strand; that is the key. My references to work-related activity involved other components. At the moment, the Bill does not provide for mandatory work-related activity, but there are powers in it when resources—

My Lords, is my noble friend confirming that no staff member in a local benefit office could decide that such an activity was not part of work-related activity and therefore did not come within the earnings disregard, and that therefore the person would not be a beneficiary of the change in policy? Is he saying that that could not happen?

No, my Lords. With respect, we are dealing with two separate things: one is permitted work rules and their parameters, and the other is whether or not the activity as a service user—whether it is described as paid work or not is not helpful to our discussion—could count as work-related activity when you reach the stage when work-related activity is something that people who are not in the support group would be required to participate in. My point is that service-user involvement could well qualify as work-related activity, which would be relevant in due course when that component of the Bill comes in. It has many of the features that help people to move towards the job market. I hope that that clarifies the position for my noble friend.

My Lords, could the Minister help me? I wonder whether there would be a difference between the two groups if we applied what I call my local authority councillor test.

Yes, my Lords. The local authority councillor test is different because the permitted work rules as they currently operate, and will continue to operate on an expanded basis, state that once you have breached the rules you are out of benefit. The local authority councillor rule will say that, once you have breached the threshold, that is deducted from your benefits. The Government are not proposing to extend those provisions relating to local councillors. I revert to our discussion about work-related activity. I stress that this would need to be judged on a case-by-case basis.

I shall comment briefly on service users who offer involvement on a voluntary basis having notional earnings attributed to them. My noble friend Lady Hollis touched on them. The notional earnings rules are an important safeguard that help to protect the benefits system from abuse. Customers are already able to undertake a wide range of activity, such as permitted or voluntary work, without their benefit being affected. As I said, we intend to build on that foundation in the ESA. We are looking at ways of modernising the rules to enable customers to make the most of their talents. For example, we have recently clarified the rules on the treatment of lunches provided to volunteers to ensure that they can continue to volunteer and receive benefit in the normal way.

On the references to rules on expenses, our key aim is to encourage people as much as possible to support themselves through work. We are always concerned about anything that discourages people from taking part in activity, and we will continue to look at how to make the rules more effective. Aligning the permitted work higher earnings limit will play an important part in enabling us to do just that. All changes that we make need to be underpinned by an understanding of the wider effects on earnings rules and work incentives.

The noble Lord, Lord Oakeshott, asked me about the cost of the amendment. We would have to look at its consequences and weigh everything up, particularly the impact on work incentives. But I hope that what we have announced today on the permitted work rules will satisfy noble Lords that we have taken a significant step forward.

My Lords, as the noble Lord is telling us that he is making a significant change, what is the additional cost of the change that he has just announced compared with what he was going to do?

My Lords, I thought that the noble Lord would ask me that when I spoke earlier. Perhaps I may write to him with a figure. Again, I reassure noble Lords that we will continue to look for more flexible ways of helping people to take up beneficial opportunities without fear of their benefits being removed. Accordingly, I urge the noble Baroness to withdraw the amendment, and I can now announce that no cost is attached.

My Lords, before the noble Lord sits down, although aligning the earnings rules within the limit for the two streams of ESA is welcome, does this not blow a hole in Schedule 1? What else is there to distinguish between the contributory allowance and the income-related allowance?

My Lords, quite a lot. The cap on the earnings-related component is driven by the various allowances that come from applying the system. If you had a contributory allowance and other income, that other income would not change the overall level of the employment and support allowance. So there are two strands to what is a single benefit, and the difference between those two strands is not just the permitted work rules.

My Lords, I have had to cross out the word “disappointed” in my reply. I thank all noble Lords who have spoken in this short debate. I am extremely pleased with the Minister’s announcement because, the more I and other people looked at the new system, the more it seemed that it was very unfair on those on means-tested benefits. I came across some research carried out by the Minister’s department that found that people who earned up to £86 a week under permitted work rules moved from benefits into work in greater numbers than those on means-tested benefits, so the system may have that very good outcome.

Did I hear the Minister say that jobcentres should never say to service users that being involved with the kind of committee that I was talking about means that they should no longer be on benefits? I think that he said that, just as people can be councillors and be on benefits, they can also be service users and still be on benefits—that is, that being involved in public life should not mean that people are automatically told that they are no longer incapable of work. Am I right?

My Lords, perhaps it would be helpful if I restated precisely what I said so that there is no confusion. I said that we recently changed guidance on applying the incapacity-for-work test to emphasise that, when people take part in service-user involvement, they should not automatically be sent for a reassessment. A reassessment should be done only where there are specific reasons for believing that the work that a customer is doing demonstrates that he no longer satisfies the conditions of entitlement to the benefit.

My Lords, once again I thank the Minister for clarifying that point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Amount of contributory allowance]:

[Amendments Nos. 4 and 5 not moved.]

6: Clause 2 , page 3, line 4, at end insert “, or

( ) he is undergoing or recovering from treatment for a serious or life-threatening illness or is terminally ill as prescribed through regulations.”

The noble Lord said: My Lords, this amendment has been discussed in the House before and I am retabling it to follow up on a point which I do not believe the Minister has as yet sufficiently addressed. In Committee, he said that,

“we have made provision for a limited group of people, including those who are terminally ill and people undergoing parenteral chemotherapy for cancer, to be treated as having limited capacity for work-related activity”.—[Official Report, 20/2/07; col. GC 35.]

However, the question I had asked previously was whether the Government had any intention of ever expanding those two categories to include other cancer patients taking different courses of treatment, or any other people undergoing treatment of an equivalent severity. I hope that the Minister can answer that now.

There is no evidence that oral chemotherapy has less debilitating side effects than intravenous treatment. I checked that with a Member of your Lordships’ House from the medical profession who advised me:

“There is no evidence that oral chemotherapy is less punishing than intravenous and indeed there is some evidence about to be published that some regimes can be easier, but they are not available outside trials as yet in bowel cancer”.

Macmillan Cancer Support, in particular, is very concerned that the draft guidance that we have seen makes no mention of the limitations that cancer treatment can impose on patients, especially when appearing for work-focused interviews, which will be compulsory for many cancer patients. If the Minister cannot give us reassurances on moving all cancer patients into the support group, can he at least confirm that regulations will include guidance that assessments, interviews and activities that are subject to conditionality can be postponed for reasons relating to the claimant’s treatment or condition? Currently, it appears that claimants cannot postpone a work-focused assessment unless they can show it would not be helpful or appropriate. Can the noble Lord confirm that this covers the claimant who is feeling too unwell or fatigued to appear for interview?

We do not live on the Continent, where you are presumed guilty until you have proved your innocence. In this country you are presumed innocent until you are proved guilty. Does the Minister not therefore feel that the guidance should make specific allowance for claimants to postpone an interview rather than having to go through the rigmarole of being threatened with sanctions and essentially having to prove their innocence?

Guidance on all the other aspects of ESA assessment and expectations are similarly silent on the subject of what cancer patients can be limited by. For example, fatigue and low immunity are common side effects, but they are not mentioned anywhere as a consideration on whether a claimant is capable of undertaking work-related activity. Does the Minister expect most cancer patients to be moved into the support group by the current assessment? If not, can he confirm that guidance will ensure that personal advisers will be fully aware of how debilitating cancer treatment can be? I beg to move.

My Lords, I shall briefly come in behind this amendment. The most important part is not so much that cancer groups are themselves the main claimants, but the flexibility on new groups coming in and how we expand from here. Can the Minister give us an idea about what is going on, because if a new group, new type of treatment or new awareness comes in, it would make me feel slightly easier about the whole process? If you get it wrong, the whole thing will break down and those who are most vulnerable will suffer. It is that group and the degree of flexibility that concerns me, and I would like some information about the process.

My Lords, the amendment is intended to allow people suffering from the most serious conditions and the terminally ill to automatically enter the support group. While I entirely understand the well intentioned motives of the amendment, it undermines a key principle of the new benefit and would help to maintain the concept of incapacity for work, which we are trying to remove. Our reforms are about trying to ensure that as many people as possible have the chance to engage in work. As such, the support group criteria set out in the schedule to the draft regulations for Clause 9 have been drafted to ensure that only people with the most severe levels of functional limitation arising from disabling conditions, which prove that they demonstrate limited capability for work-related activity, will be placed in the support group. The criteria are not based on specific health conditions or disabilities but instead focus on the impact that an individual’s health condition or disability has on his ability to function. We strongly believe this is the fairest way of carrying out such an assessment, as different individuals can be affected by conditions in very different ways. We think it only right that we look at each person as an individual, assessing what he can and cannot do and what it is therefore reasonable to expect of him.

We have, of course, accepted that there are a small number of situations where we need to treat people as having limited capability for work-related activity even though they might not satisfy the descriptors we intend to use to test for it. As such, we have made special provision in our draft regulations for people who are terminally ill, as we do not believe it is reasonable to require a person in the last few months of his life to have to engage in work-related activity in order to receive ESA. We have made provision for people who are receiving the most debilitating forms of cancer therapy. This is because we are confident that they will all experience severe functional limitation during the course of treatment and for a period after it has ended, to the extent that it would be unreasonable to require them to engage in work-related activity—I am not sure whether the noble Lord, Lord Skelmersdale, was suggesting that that judgment might not be right and that we should not put even that group of people into the support group.

This does not mean that people receiving other forms of treatment will not be given access to the support group. We know that many other forms of treatment, including many other treatments for cancer, can be debilitating for many customers, but they will not be for everyone, which is the fundamental point. That is why, when considering whether someone has limited capability for work-related activity, we want to consider his individual circumstances and the way that his treatment affects his functional ability. Where people suffer from severe functional limitations, they are likely to satisfy one of the 46 support group descriptors and already demonstrate limited capability for work-related activity so that they are placed in the support group. Let us take the example of cancer patients suffering from severe fatigue as a side effect of their treatment. They are highly likely to meet one of the 46 descriptors that we will use to determine limited capability for work-related activity and will therefore be placed in the support group, but we will consider that on a case-by-case basis.

Meanwhile, draft Regulation 3(2)(c) makes provision to treat people as having limited capability for work-related activity if engaging in such activity would pose a substantial risk to their physical or mental health, even if they do not meet any of the descriptors. As an example, perhaps I can look once more at cancer patients. Many people undergoing cancer treatments can have a significant risk of infection because their immune system can be compromised by their treatments. I know that Macmillan Cancer Support is concerned that asking such people to engage in work-related activity could be seriously damaging to their health. Anybody who is at such serious risk of infection, whatever the cause, will be treated under these provisions as having limited capability for work-related activity and will be placed in the support group. This is again something that we want to consider on the basis of individual circumstances.

My Lords, can the Minister give an indication of his department’s estimate of the number of people who are suffering from cancer and having treatment who would not go into the support group? What percentage is likely to be outwith the support group?

My Lords, I do not believe that we can estimate that with precision. While we know the number of customers currently on IB who are suffering from cancer, I do not think we know the range of challenges that those individuals face and therefore cannot estimate it. If I am wrong on that, I will revert to the noble Lord.

My Lords, I am most grateful to the Minister, but I find it difficult to see how he can assess whether there is merit in the amendment of my noble friend without knowing that information. If the vast majority would fit into the support group, then there is clearly nothing to argue about. If it is a significant number, then it would undermine his general policy and I have some sympathy with that.

My Lords, the thrust of the principle involved here is that we should look at individual cases to see how people’s medical condition impacts on their individual ability to function in a range of circumstances. The principle, in a sense, is that whether it was one, 10,000 or 20,000, we would want to look at people’s individual circumstances and not move them en bloc into the support group. I have outlined some exceptions to that, relating to people who are terminally ill or going through certain forms of cancer treatment, but we generally want to look at the support and circumstances of individuals and to make the judgment on that basis. That is a key part of our approach. Therefore, whether it was one, 50 or 10,000, it would not affect the answer that I would offer to the noble Lord, Lord Skelmersdale. I reiterate that anybody at serious risk of infection, whatever the cause, will be treated under these provisions as having limited capability for work-related activity and placed in the support group.

I want to comment here on those people whose condition or treatment does not affect them to the extent that they are eligible for entry to the support group. We believe, in principle, that it is right to require these customers to engage with us. However, we accept that there needs to be flexibility to deal with people’s individual circumstances, and that some of these people may still have periods where they are seriously affected either by their condition or treatment. That is why personal advisers can defer interviews—the draft regulations set out that work-focused interviews can be deferred where they would not assist the customer or be appropriate in the circumstances. This may well be the case where someone is undertaking treatment for cancer, especially where there are side effects such as significant tiredness. Furthermore, the effects of health conditions or treatments, such as periods of severe fatigue, can be taken into account when considering good cause for customers not complying with requirements.

I hope that I have answered the point raised by the noble Lord, Lord Addington, within that. We are looking not at groups of people but at individual circumstances; indeed, if new treatments came along that improved people’s ability to function with given medical conditions, they might give rise to judgments by people undertaking the medical assessment that were different from those today without them. I hope that the answer has been reassuring and that the noble Lord will therefore feel able to withdraw his amendment.

My Lords, it most certainly was not my intention to intervene or interfere with the underlying principle of the Bill, which as I have said on numerous occasions I agree with as far as policy goes. However, from all the amendments there are clearly matters of detail about which I am, shall we say, suspicious.

One thing I do not want is to undermine the key principle of the Bill—that only the most severely disabled and those in their last few months of life should go into the support group. For the others, the ability to function—perhaps for the next few weeks or months—is what matters. Earlier in our proceedings, I got the comfort that I wanted from the Minister; namely, that if they were unable to function for whatever reason—chemotherapy or anything else—they would not be expected to undertake work-related activity. I am most comforted by what the Minister has just said. I doubt that I will have to come back to this matter at the next stage of the Bill but I am afraid that, if on reflection I decide that I ought to, I will. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Limited capability for work]:

[Amendments Nos. 7 and 8 not moved.]

9: Page 6, line 18, leave out from “to” to end of line 20 and insert “such matters as the regulations may provide”

The noble Baroness said: My Lords, I shall also speak to the other amendments in the group up to Amendment No. 35. The amendments would not necessarily result in any changes to the current draft regulations or implementation of these welfare reforms; they would simply make provision to widen the scope of the assessment process in the future. An assessment of an individual’s physical, mental and sensory functionality does not equate to an assessment of that individual’s capability for work or for work-related activity. Some factors that relate to an individual’s impairment will have an impact on their capability for work, and obviously this must not be neglected. However, the medical factors related to their impairment are not the sum.

The amendments are very much supported by RADAR. They would move the Bill closer to the now widely accepted social model of disability and widen its scope to reflect future advances in our understanding of what “capability for work” really means. They would allow future assessments to take account of the vast array of factors that may limit a disabled individual’s capability for work. Those factors could include education, training and skills, the availability of funding for reasonable adjustments, access to the workplace, discrimination, the effect of living in an area of high unemployment and the ability to access assistive technologies and their associated training and maintenance. Similar amendments were rejected in the other place solely for technical reasons. Those reasons have now been addressed, and I can see no reason why there should not be cross-party support for the amendments as there was in the other place.

It is critical that we agree the text of the Bill to ensure flexibility in the regulations to follow. With the current terminology, regulations will always maintain a focus on impairment rather than incorporate barriers faced by a disabled individual that are beyond their control. It could be argued that the work-focused health-related assessment should not incorporate an awareness of these wider societal barriers, and that that should be done by the personal adviser in the work-related activity stages. I would argue that the personal adviser should be involved at this first stage, which represents the beginning of an individual moving towards the labour market. Indeed, as the noble Baroness, Lady Morgan, informed us in Grand Committee, the work-focused health-related assessment will advise the personal adviser looking after the customer on the kind of health-related interventions that would benefit the customer, such as a condition-management programme.

The narrow impairment focus wrongly emphasises the start of work-related activity. It could even alienate disabled people from making the most of the process. In the other place, it was noted that the work-focused health-related assessment and the medical examination process will not only look at medical issues but will have a specific and detailed approach and will examine more than just the medical barriers faced by people with disabilities who want to re-enter the labour market. This will be enabled by removing the terminology “health-related” and by not limiting any part of the assessment to healthcare professionals. The regulation must move us beyond narrow understandings of disability. We must not categorise individuals only by their impairment or medical conditions. I beg to move.

My Lords, we agree entirely with the noble Baroness, Lady Greengross, in her attempt to move towards the social model of disability. I shall speak to Amendment No. 33 in particular but I will not repeat all that the noble Baroness said. We seek flexibility in the regulations so that the kind of barriers she mentioned will be taken into account as being beyond the control of the claimant. They are just as likely to affect a person’s capability for work as the kind of health-related interventions that the Minister spoke about in Grand Committee. As the noble Baroness also said, the narrow impairment focus emphasises wrongly the start of work-related activity and may alienate disabled people from making the most of the process. No one wants to be categorised as just “disabled”, particularly if their confidence for work needs to be bolstered, otherwise this is how they will think of themselves. This new Bill gives us the chance to change the climate.

My Lords, I am sympathetic to these amendments, although jobseeker’s allowance will continue alongside this Bill. I have spoken before about how pleased I am that the Bill sets into law assessments designed to determine what a disabled person can do rather than what he or she cannot do. This adjustment takes into account not only the contribution that people who will receive ESA have to offer but also the benefits that will come to them from developing their skills and confidence and moving closer to work readiness.

However, I cannot fully support these amendments. The employment and support allowance is and should be focused primarily on disabled people. These amendments would potentially open the field of claimants to anyone who is unable to find a job. For example, as I understand it, it would be possible for regulations to specify that someone who felt their education had not sufficiently prepared them for employment, or even someone who lived in an area with no suitable vacancies for them, as eligible for ESA. That is not the purpose of ESA. I look forward to hearing the Minister’s response to both these amendments.

My Lords, the noble Baroness’s amendments all concern the social model of disability. These amendments and Amendment No. 33, proposed by the noble Baroness, Lady Thomas of Winchester, seek to ensure that the revised personal capability assessment focuses more widely than on health conditions and disabilities, the impact that these conditions have on customers’ functional capability and health interventions that might help to raise that capability.

Eligibility for employment and support allowance will depend on customers being determined as having limited capability for work. Equally, eligibility for the support component of the allowance will depend on customers being determined as having limited capability for work-related activity. Both limited capability for work and limited capability for work-related activity will be based on the impact of health conditions or disabilities on customers’ functional capability. That is a fundamental concept; the allowance has been created for people currently unable to work because of a health condition or disability. Although customers could be disadvantaged by a range of other factors, such as a lack of skills, the local labour market or the attitudes of employers—points touched upon by the noble Lord, Lord Skelmersdale—these are not reasons for entitlement to the benefit.

It is therefore appropriate that the regulations we use to determine limited capability for work are defined in the Bill by reference to a specific disease or bodily or mental disablement. That is the framework that we have at the moment, and we think that it remains appropriate for the revised PCA. Focusing on functional capability also helps to ensure that the assessments are applied consistently across the country. It is a key principle of the benefits system that eligibility should be defined nationally and consistently and should not be affected by local factors. Taking into account wider social factors would effectively result in different eligibility criteria applying in different areas. This could result in customers receiving different benefit entitlement decisions depending on where they live; that is clearly unacceptable. However, we will not be ignoring social factors. I will say more on this in a moment.

The noble Baroness has proposed that we replace the term “medical examination” with “eligibility test”. Again, we have used this wording for a very specific reason. The revised personal capability assessment will gather and evaluate information from a number of sources to assess whether an individual has limited capability for work or limited capability for work-related activity. As at present, we will request information from healthcare professionals and other relevant people, and customers who are not identified at this early stage as having limited capability for work-related activity will be asked to complete a self-assessment form to help us to assess their condition.

For most customers, a part of this evidence-gathering process will be a face-to-face medical examination with a healthcare professional. The phrase “medical examination” in Clauses 8 and 9 refers to this very specific element of the PCA process. The decisions on whether a customer is eligible for either employment and support allowance or access to the support group are not taken during this medical examination, nor are these decisions taken by the healthcare professional carrying out the examination. The decisions are taken subsequently by a departmental decision-maker, who considers all the available evidence, including that gained from the medical examination. Replacing the phrase “medical examination” with “eligibility test” would not make it clear that these are references to very specific parts of the PCA process. Meanwhile, calling these examinations “eligibility tests” would not make it clear to our customers that a face-to-face examination would be involved.

On the amendments concerning the work-focused health-related assessment, as part of our reforms we are adding a new stage to the personal capability assessment. This new stage, the work-focused health-related assessment, will be a positive experience that gives customers the opportunity to explore with a trained healthcare professional his or her perspective on their disabling condition. It will aim to identify as early as possible in a claim the health-related barriers that lie between customers and their engagement with work, as well as the health-related interventions that will help to improve their capability. There is good evidence about the beneficial effects on health of early intervention.

Once more, we have very specifically used the term “health-related” in the title of this assessment, as we want the focus of the assessment to be on the health-related issues I have already mentioned. We use health in its broadest sense, indicating that the focus is on matters relating to an individual’s body or mind and the impact of those on that individual’s capability for work; as such, we include impact on the body or mind caused by health conditions and disabilities.

We are using healthcare professionals to carry out this assessment because they have specific skills that we would not expect a personal adviser to have. For example, the assessment will identify whether any health-related interventions, such as cognitive behavioural therapy or physiotherapy, would help customers to improve their capability. It would be unrealistic to expect personal advisers or others to be able to identify these interventions as suitable for customers.

Although we want the assessment to focus on health-related issues, I assure noble Lords that this does not mean that other barriers to work will not be taken into account. For example, the healthcare professional carrying out the assessment will be able to identify, in general terms, occupational factors that are creating a barrier to return to work, such as advising whether a customer has mobility problems making it difficult to access a workplace. But at this early stage, without a specific job in mind for the customer—or, where the customer does have a specific job, without an anticipated date for a return to work—it would not be appropriate to carry out a detailed workplace assessment. That would come at a later stage, when the customer is ready to move into work and it would be in the context of a specific job. The customer’s personal adviser would then arrange the necessary workplace assessment.

Meanwhile, the work-focused health-related assessment will allow customers to explore their own beliefs and perceptions about their disabling condition. We believe that this in itself will be beneficial to the customer, because we know that beliefs and perceptions can influence capability. People with a positive, coping attitude are more likely to be able to influence their level of capability than those who have perhaps lost confidence in their ability to cope.

We will ask customers about the barriers that they perceive between themselves and the labour market. Although some of these barriers will be medical, it is likely that others will be societal. Again, we do not suggest that these non-medical barriers will be ignored. Information from the work-focused health-related assessment will be given to the personal adviser for use during the work-focused interviews, which will focus on wider issues such as societal factors. Although personal advisers are unlikely to have the skills needed to identify health-related interventions, they will be able to provide help to address wider issues such as transport problems, skills needs or low confidence.

Much of the discussion in Committee was on the role of employers and the need for the Government to engage with them and help to ensure that they meet their obligations under the Disability Discrimination Act 1995 to support people with health problems and disabilities to stay in or return to work. I can assure noble Lords that we are taking this seriously, and a concerted effort is being made throughout Government with a particular focus on people with mental health problems, who can suffer a greater stigma than most. Although I would not deny that it is a big task, we are committed to it and are working together to tackle the problem.

I know that noble Lords particularly want to raise awareness of the access to work scheme among employers, and I thank them for their support for the scheme. I assure the House that we actively promote the availability of access to work and all our disability employment services. Information is freely available on our website, at jobcentres and from our voluntary sector partners.

I have explained at some length to the noble Baroness our intentions for the revised assessment and why we have used the wording we have. I also hope that I have reassured her that, although it would not be appropriate to base benefit entitlement on social factors or to deal with them directly in the work-focused health-related assessment, societal factors will be addressed. I hope, therefore, that the noble Baroness will be able to withdraw the amendment.

My Lords, I thank the Minister for those reassurances. I am not certain why an eligibility test, if added to the conditions, should not be broad and should not incorporate certain standards at a national level. However, I accept those assurances and hope that he will ensure that the code of practice makes them very clear so that those issues are not ignored. I remind the Minister, although he does not need reminding, of the WHO definition of health, which is very broad and includes well-being and various other socially better-defined criteria. I will think again on the issue. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 10 and 11 not moved.]

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

[Amendments Nos. 12 to 15 not moved.]

16: After Clause 9 , insert the following new Clause—


The Secretary of State shall lay before Parliament an independent report on the operation of the assessments under sections 8 and 9 annually for the first five years after these sections come into effect.”

The noble Lord said: My Lords, this amendment is an adjusted version of the one tabled by the noble Lord, Lord Oakeshott, in Committee. The arguments are much the same as I adverted to when I spoke for the need for more affirmative orders. In Committee, the Minister gave us some reassurances that the PCA would be fully evaluated as the pilot schemes were expanded and adjusted. We also had an assurance that there will be an evaluation two years after implementation, with the possibility of further evaluation after that. Further evaluation would be an excellent thing to happen and I hope that the Minister will be able to give us firmer promises on that today.

There has been a lot of debate and criticism of the assessments as this Bill moved first through another place and then through your Lordships' House. A lot of that was due to confusion, which has mostly been cleared up now. It has been a particularly clear indication of how pilot schemes are not enough. They provide valuable information about the failings of a draft system and are essential to work through teething problems before they are rolled out. But they do not provide a guarantee that the final version will be successful.

The new PCA is very different from the old eligibility test. In particular, the number of descriptors identifying physical disabilities that will be taken into account has been much reduced. There is a much wider appreciation of mental disabilities, which is good. It is unsurprising that such a large modification has caused concern among claimants and the organisations that represent them. Credible reviews that assess whether the new assessments are needed in successfully identifying claimants and putting them on to the correct components will do much to reassure these claimants and to identify any of the problems that many of them are foretelling. Similarly, there is much uncertainty about the computer system that is being used. I thank the Government and Atos Origin for giving us the opportunity to see it in action, but watching the demonstration of a program that was developed for incapacity benefit and has not yet been finalised for ESA is hardly the same as observing the latter in the field.

We all hope that the new ESA and PCA will lay people’s fears to rest as they are rolled out and given a chance to prove themselves. However, I hope that the Minister will be able to provide me with further reassurances that any future blips will be picked up and addressed by a thorough review process.

As I said, this amendment states that the report should appear annually for the first five years after Clauses 8 and 9 come into effect. That should be long enough to have the new system fully up and running; if it is not working properly by then, we really will have to go back to the drawing board and it is quite possible that a new Act will be required. Even if it is not, a major reform of the regulations will be necessary. We ought to know in advance of that happening. I beg to move.

My Lords, having run the first lap of this amendment in Committee, I am happy to pass the baton to the noble Lord, Lord Skelmersdale, to move it here. We support him in that; perhaps he will return the compliment on Third Reading with another amendment. We shall see.

As we said in Grand Committee, there was considerable cross-party support in another place for amendments along these lines. I made it clear in Committee and do so again today that we do not regard as satisfactory the assurances from the Minister about what is effectively an internal review. It seems a classic example of a controlled review of which Sir Humphrey in “Yes Minister” and “Yes, Prime Minister” would have been proud.

The amendment is very reasonable—indeed, it is modest, as it gives the Government the opportunity to choose where the independent review comes from. I cannot see how the Government can possibly object, if they really support transparency and a proper process of post-legislative scrutiny by Parliament of what are, after all, major changes in legislation, which could affect many of the most vulnerable in our society. We are happy to support the amendment.

My Lords, I recognise the concern underlying the amendment that the revised PCA descriptors and scores should be subject to independent evaluation following the implementation of the employment and support allowance.

I repeat the undertaking given by the Minister for Employment and Welfare Reform in another place that there will be independent monitoring of the revised PCA descriptors and scores assessing limited capability for work. Moreover, I can today commit to ensuring that this covers the first five years of operation, rather than the two years to which we have already committed. I also confirm that reports of the independent monitoring will be placed in the Libraries and that as usual they will be subject to parliamentary scrutiny by means of Parliamentary Questions, Select Committees and so on.

The Government are, of course, committed to evidence-based policy making and recognise the value of seeking information that will help to establish the effectiveness of policy initiatives and their implementation. As I said in Committee, a large amount of research and review is undertaken over a whole range of policy areas and those reports are routinely published. A working paper on performance in Pathways areas was published in January last year and, as of December 2006, we have produced Pathways statistics on a quarterly basis. Furthermore, we routinely publish externally commissioned research reports as soon as they are available. Ten such reports on Pathways have been completed to date.

We are currently evaluating the impact of Pathways on both new and existing customers in the first seven areas. The focus will be on employment, benefit exits, earnings and health and we are also evaluating the impact of Pathways as it expands to cover more districts. As we progress with our evaluation over larger areas, there will be a greater opportunity to look at sub-groups. This will include further analysis of the impact of Pathways on customers with a mental health condition.

In addition to the quantitative assessments, we are exploring attitudes and experiences of Pathways participants and key Jobcentre Plus and provider staff. This planned evaluation will continue until 2009. We are due also to evaluate the impact of provider-led Pathways.

We need to maintain a balance between seeking information and monitoring that helps inform policy-making and ensuring that the information gathered is appropriate and represents a responsible use of resources. We would not, for instance, wish to be obliged to provide annual reports where it has been established that the revised PCA is effectively identifying those people who have limited capability for work.

I hope that I have reassured noble Lords that there will be an effective process of evaluation, that we will extend it over five years, and that those reports will be in the public domain and available to Parliament through the normal means. I hope that noble Lords will see that as a better route forward than an obligation to produce annual reports at fixed points in time. I ask the noble Lord to withdraw the amendment on that basis.

My Lords, I am grateful to the Minister. I was grateful to him when I heard of the original undertaking to carry out independent monitoring for the first two years. The Minister now announces that this is to cover the first five years. I rather wonder whether my amendment had anything to do with that. Whether it did or not, I am delighted that the results will be published and placed in the Library.

The Minister announced a whole range of “assessments”—dare I call them that?—which were to be made of the process during that five years. The trouble is that the results will come out rather piecemeal. There will be no document which puts them together appropriately as they come out and there will be no single booklet that we can read. If we are particularly assiduous in looking at these things, we will know what has happened—what has gone right and what has gone wrong. We may even know what remedies are to be proposed. However, what we will not know, at least if I correctly understood what the Minister said, is how many people the ESA has been successful in getting into work, thereby achieving their and our ambition; and we will not know how the trend in applications for the benefit is going, because, clearly, over a period, even in the first five years, one would expect a considerable drop in the number of applications for the benefit. Indeed, we have already seen a drop in the past year for which we have had figures. Perhaps it is a flash in the pan—one does not know.

Therefore, even though I accept at face value what the Minister said, his response is not satisfactory. I wish to press the amendment—

My Lords, before the noble Lord sits down, perhaps I may press him on the matter. He said that his amendment calls for an independent report. I reassured him that there will be an independent report. He said that there would be no document which pooled together all our reports. Some of those reports are independent; some are internally produced for management purposes—they will be a mixture. To require that they be fed into one independent report would in the case of some require an additional layer of work and resource which I respectfully suggest to him is not necessary.

The noble Lord asked how we will know whether the process is successful in getting people into work and said that we must have an annual report to determine it. Some people’s journeys into work, and judging whether the process is successful, will not always be capable of being quantified and identified in a rigid annual cycle. That is why an independent review, to which the Government are committed, is a better way of addressing this matter than forcing a narrow annual report to be made. Particularly in the early period, such a report is unlikely to be able to judge with full effectiveness the journeys that some people are making into work, because they would not necessarily appear in employment statistics. I impress that on the noble Lord and ask him not to press his amendment.

My Lords, before the noble Lord sits down again—I am not quite sure which noble Lord will sit down, but before either or both of them do—I would like to say that the business of a regular, annual report is exactly the point. It is not rigid, but a reasonable and regular period in which to report. Otherwise, I am afraid that the plethora of different reports, to which the Minister referred, will enable the Government to fix the time and the place. The report will not be properly independent and annual and it seems perfectly reasonable to ask for one which is independent, annual and fixed for the first five years.

My Lords, the Minister obviously does not want to come back. I have already tried to beg to press the amendment once and I am going to do so again. This time, I hope it will be for the final time. I wish to test the opinion of the House.

Health: Modernising Medical Careers

My Lords, with the leave of the House, I shall repeat a Statement made earlier today by my right honourable friend the Secretary of State for Health. The Statement is as follows:

“In the Written Ministerial Statements of 7 and 13 March, I set out the Department of Health’s plan for an immediate review of the first round of the new national recruitment and selection process for doctors in postgraduate training. As part of the Modernising Medical Careers—MMC—reforms of postgraduate medical training, new specialty training programmes will be introduced in August 2007.

“To support implementation, a new national recruitment and selection process was introduced this year, facilitated by the online Medical Training Application Service—MTAS. That process sets out national recruitment and selection criteria, documentation and standards, replacing the countless local appointment processes that had previously been in place. The new arrangements were developed with the help of the medical royal colleges, trainee doctors and others. We will continue to work with them to ensure that trainee doctors are properly supported and fairly treated, and that the NHS is able to train and recruit the best doctors for the future.

“Doctors have been applying for their preferred specialty training programme since 22 January 2007 and interviews have already begun. A large number of posts will not be filled in the first round and we have stressed to those interviewing in round 1 that they should not consider appointing unless they are absolutely satisfied with the calibre of candidates.

“It is clear that there have been concerns about the selection process, and that the process as a whole has created a high degree of insecurity among applicants and, indeed, more widely in the profession. We therefore commissioned an immediate review to establish what had gone well and what needed to be improved to create greater confidence in the process.

“The review is independent, being led by Professor Neil Douglas, vice-president of the Academy of Medical Royal Colleges and president of the Royal College of Physicians of Edinburgh. Members of the review group include representatives of the royal colleges, the British Medical Association, the four United Kingdom health departments and employers.

“The review group has considered a wide range of evidence and listened carefully to the concerns of the profession and NHS employers. As a result, the review group has agreed immediate action, but will also continue its work throughout March. The review group decided that round 1 should continue, with a number of changes to strengthen implementation at every level. In particular, all eligible applicants for level 3 and 4 speciality training—ST—will be guaranteed an interview for their first or second choice of training post; that includes those who have so far been offered only their third or fourth choice. All applicants at ST1 who have not been shortlisted for any interviews will have their application reviewed and may be offered an interview in round 1. If not, they will be offered career guidance and support to enter round 2. All applicants for ST2 who have not been shortlisted for interview will be offered a face-to-face review with a trained medical adviser to determine whether they meet the shortlisting criteria. Those who meet the criteria may be offered an interview in round 1. Those who are not selected for interview will be offered career guidance and support to enter round 2.

“We expect over 5,000 more doctors to be interviewed in round 1 as a result of these changes. We will also publish on the MMC and MTAS websites details of competition ratios by specialty and entry level, to help applicants to consider their options for the second round, together with further advice and information for candidates. In addition, further significant changes will be made to the application form and the scoring system, to improve selection in the second round. The revised approach will be tested and agreed with the royal colleges, junior doctors, postgraduate deans and employers. I am grateful to Professor Douglas and his colleagues for their continuing work on the review group. We will publish the group’s final report once it is completed”.

My Lords, that concludes the Statement.

My Lords, I thank the Minister for repeating the Statement made by the Secretary of State in another place. Knowing what a charming Minister he is, I am sure he will avoid the mistakes of the Secretary of State in her answers to questions. She was asked six times if she would apologise for the shambles that we find ourselves in. Unfortunately, she would not. It was also unfortunate that she started blaming others for the shambles. It was a pity; all she needed to say was, “It is a shambles, we are sorry for the inconvenience and we are going to put it right”. That would have been very acceptable.

To be fair to the Government, MCC has been discussed for three years and the Government have taken notice of what people have been saying. For instance, they agreed with the Royal College of Physicians in its desire to have longer training before entering specialist training, like gastroenterology. The Government agreed that there could be another two years for securing membership of the Royal College of Physicians before entering further specialities. That was good.

There is a very big problem in surgery. As noble Lords are probably aware, there are five or six SHO—senior house officer—posts for every training post in surgery. That is an unfair disadvantage, but it has been so for a long time. Those who were not successful in securing a post could stay in the SHO post until a vacancy occurred. The problem with the arrangement that we have got is that it is like a big bang; it has come in too quickly, whereas the Calman system was phased in gradually—that would have been much better.

As was mentioned in another place, one of the problems has been the scoring arrangements. For instance, if you had a PhD, you got one point. On the other hand, if you wrote a good essay on “How I Deal with Stress”, you got four points. If you produced a poster at a meeting, that would be three points. It takes about an hour to prepare a poster for a meeting; it takes three years to get a PhD and you have a very tough exam at the end of it. There is something radically wrong. Not having the curriculum vitae in front of the examiners is a serious disadvantage indeed.

Another extraordinary thing is that there was no distinction made between an MD of Cambridge and an MD of Harvard or Pisa. Is there a difference? All the difference in the world—they are completely different exams. On average, a Cambridge MD is taken six years after you are qualified, and means that you have worked extremely hard for a long time and produced a thesis, which is no mean accomplishment. Of course candidates in Harvard are of a very high standard but its MD is a qualifying exam. An MD Pisa—well, someone said, “Say no more”. Perhaps I should point out that you can start as a medical student in some Italian universities simply if you want to. To be fair, such students are weeded out later but a very different system is used. The three MDs are totally different.

Another issue that arose in the other place was that the USA has had the system, which we will introduce, for 50 years—but it is not the same system. What happens is that candidates in the United States put their preferences in order and the hospitals and universities to which they are applying put their candidates in order of preference; that is a rather different system. Another point that emerged—we need to nail this one—was that the old system was terrible and was just an old boys’ system. I am afraid that that is not true. Just across the river at St Guy’s Hospital, for 50 years we have had a system whereby the candidates put the jobs that they want in order of preference, and so do the consultants. The junior staff vet the process, and their recommendations go to the consultants, who usually accept them. There is no way in which anyone can fix an appointment.

Finally, I repeat that it is a pity that the Secretary of State did not apologise. I am sure that the Minister will.

My Lords, it is astonishing that an initiative that was welcomed at the outset by all those involved in the process—the deaneries, the junior doctors and employers—could have gone so spectacularly wrong in execution. There was an agreement among most of those involved that it would be preferable to move towards a better technological system. However, it has quickly become apparent that what was going to emerge was nothing like what had been envisaged. The junior doctors’ committee of the BMA has been warning for more than a year that what would emerge from the proposals would not work, would be insufficiently sensitive and would be crude in application. So it has proven to be. That begs the question why the department has taken until the beginning of March to realise the extent of the system’s deficiencies; we know that the application system is due to be completed for posts that are supposed to begin in August.

The system’s deficiencies are clear not just in application but in design. The noble Lord, Lord McColl, referred to some of them but there are more. They are at their most deficient in that they give insufficient weight to people’s experience of research in pursuit of academic medicine. We have discussed many times in this House how the NHS has, in view of the access that it gives to large numbers of patients, perhaps the greatest potential in the world for a mix of practical medical care and research. It is only for the want of proper systems that we do not have—although we should have—the best medical and biomedical research system in the world. This application system clearly takes very little into account. That must be wrong and disadvantageous.

Will the Minister comment on reports in the past few days that the new system’s implementation has involved many non-medical staff in the appointment process? That is rather strange. One wonders, given the debacle before us, whether it is another sign of management consultancy in the NHS having gone several steps too far. Will he also explain what is meant by “career guidance”, which he mentioned twice during the Statement? It is a phrase that strikes fear in other walks of life and I wonder whether it does here, too.

We have concentrated mostly on what is an astonishingly bad process, but another matter has lain somewhat hidden behind the headlines. What will happen to the doctors who clearly will not get a post under MMC? The department’s press release issued at the end of last week stated that there will be lots of posts. What sort of posts will they be? Will they be for hospital doctors or GPs? Who will they be going to and how will that be decided?

This has been an amazing process to witness from the outside. It has clearly caused distress to applicants and dissatisfaction to the deaneries, and ultimately it must be a distraction from patient care and research over the next few months. I do not believe that the process can be stopped but can the Minister tell us what, if any, scope there is to reschedule its later stages in the interests of fairness and of ensuring that the best-qualified candidates get the opportunity to apply for the posts for which they are best suited?

My Lords, I am grateful to the noble Lord, Lord McColl, and the noble Baroness, Lady Barker, for their comments and questions on the Statement. I make it clear that we should appoint the best people possible to take on these training posts, as they lead to the most senior medical consultant and general practitioner positions in the country. It is very important not only that we select the right people but that the training that these doctors are then given is up to scratch. I also very much agree with the noble Baroness, Lady Barker, that, as well as ensuring that we have the best possible clinicians, we should never underestimate—I certainly would not do so—the contribution that doctors make more generally to science and to the research base in this country.

I say to the noble Lord, Lord McColl, that the Statement certainly recognises the stress caused to many junior doctors by aspects of the current system. This has always been a competitive process, and I guess that for junior doctors there has always been a high degree of stress. I have already answered this but let me get right to the point: where failings have caused problems for junior doctors, I, as a Minister responsible, must take responsibility. I do take responsibility for it; I would never run away from it. I have already said to junior doctors that, where they have been affected by problems with the system, I am very sorry for what has happened to them.

I say to the noble Baroness, Lady Barker, that, as soon as the problems became known to Ministers, we convened a meeting with representatives of the medical royal colleges. We agreed to a review, and those holding the review have been meeting almost constantly over the past two weeks. The Statement last Friday represented enormous hard work by all concerned, including my officials, the medical royal colleges, representatives of the BMA and NHS employers. Everyone is working as hard as they can to deal with the problems identified. I very much hope that the announcement made on Friday and the Statement by my right honourable friend in another place made it clear that we are in the process of resolving these issues. The review will carry on, and we will look very carefully at its outcome at the end of this month. Of course, we will want to learn the lessons and ensure that, where appropriate, changes are made in the current situation and into the future.

The system has worked well in some places, such as recruitment into GP specialty training. The noble Lord, Lord McColl, identified some of the inevitable challenges in the reform of the training programmes and selection to them.

The noble Baroness, Lady Barker, is right to say that it would not have been sensible to stop the programme in its tracks. Indeed, we did not receive that advice from the review team. It has clearly worked for many people; stopping the process would just cause much greater uncertainty. The noble Baroness asked about rescheduling later rounds in the appointment process. Clearly, many more details need to be worked out. We will be guided by the review team. Of course, there are practical consequences for the health service, and we must remember the time that practising consultants have to spend in short-listing and interview committees. With all those caveats, the answer is yes: rescheduling will be considered. If it is thought to be the right thing to do, we should consider rescheduling.

Career guidance means just that: guidance on the application process itself, with information on where the vacancies are in terms of area and specialty. It also means guidance for those who do not get through the competitive process. We should not run away from the fact that this should be a competition. We want the best doctors to be selected for the specialty training programmes, but that does not mean that those not selected should be lost either to the medical profession or to the NHS. Career guidance may be very helpful.

The noble Lord, Lord McColl, referred to the old system. He is very experienced, and this House has great respect for him, so it is fair enough for him to say that in his own hospital things worked well. However, the general consensus is that the old system did not work well. Doctors had to submit many different applications across the country for jobs that might be for only six to 12 months. Often there could be many hundreds of applications for a single job, as short-listing processes were variable. That is why all those concerned—the Government, medical bodies and junior doctors—got together to work through a new process. The noble Baroness, Lady Barker, was right to raise that. Those bodies are now around the table finding answers to some of the issues raised. I am confident that we can ensure that the issues are dealt with. We will have a robust approach to ensuring that the right people are appointed to training posts.

A number of comments were made about the scoring system. The processes were developed after much consideration by all the parties involved. I have taken account of noble Lords’ remarks. It would be fair to say that the system has worked better with candidates who have just come out of the initial training, 84 per cent of whom have been offered interviews. The issue of the points system probably applies more to the more senior applicants. None the less, it is important to learn the lessons. I will listen very carefully to what the review team has to say about that. I have responsibility for research and development and for the pharmaceutical industry, and, as I am sure noble Lords will recognise, I want the best possible research and clinical academic doctors in this country. I want to ensure that the system that we develop gets the best individuals.

The scoring and competency-based approach arose out of discussions and the Chief Medical Officer’s 2002 report which found that, in addition to academic and technical skills, it is necessary to recognise, for example, doctors’ communication skills with patients. We have had many discussions in this House about the need to enhance communication skills. However, I recognise that the scoring system as a whole is subject to comment, and we will listen very carefully to what the review group says.

My Lords, I am grateful to my noble friend for his responses, which were very helpful. This has been an extremely traumatic experience for many young trainee doctors, who feel very frustrated and uncertain about their future. It has left many considering moving abroad.

The application forms made it nearly impossible to judge who should be shortlisted. The forms were anonymous and largely ignored details of applicants’ CVs, previous skills, experience and training. They relied heavily on essay-type questions that anyone with access to the internet and reasonable creative writing skills could answer.

I am not trying to lay blame, because many parties have been involved in getting to this point, but I hope that my noble friend agrees that we should go back to the beginning and look at the application forms to ensure that they include details of what candidates have done and achieved and that they do not get involved in marking that is clearly erroneous.

My Lords, I thank my noble friend. I accept that this has been a difficult time for many junior doctors, and I understand how important being accepted for a specialty training place is for their career in medicine. I am not unmindful of the pressures on those junior doctors, but my understanding and experience is that it has always been a traumatic time for them. The process we now have is more transparent and has been organised on a national basis so, in a sense, that trauma is shared by many more people. We clearly need to do everything we can to make sure that the system is transparent, fair and felt to be fair and that people see the logic behind the application process and the interviews.

I should perhaps have said to the noble Lord, Lord McColl—or perhaps it was the noble Baroness, Lady Barker—that it is critical that doctors are involved in shortlisting and interviewing. I confirm that the key people making decisions are clinicians.

I will listen very carefully to what the review team says about the information in the application form. As a result of the discussions in that review, evidence of excellence in the form of a portfolio or a CV may be presented as part of the selection process. I hope that that meets some of the concerns that my noble friend raised.

My Lords, how much notice is taken of references in selection? Is it not important that the very best doctors are selected for the specialty of their choice so that they have the necessary interest to give full commitment to the post, and to go on learning and improving? Surely, that is a definition of an expert. Is it not a fact that many people are becoming worried by the word “modernisation”?

I hope not, my Lords, because in the health service we are seeing many more doctors being trained and employed—30,000 more than in 1997, I think—and a huge commitment to improving the training of our doctors. That is part of the reform of the National Health Service that noble Lords have wanted and which is being put into action. The programme of training running alongside Modernising Medical Careers is intended to be much more cohesive and appropriate than the rather patchy approach that has existed for many years. However, I accept the comments of the noble Lord, Lord McColl, about his own experience.

It is important that those making the critical decisions of appointing doctors to training posts have relevant information. That is why I said that evidence of excellence in the form of portfolio or CVs may be presented as part of the selection process. However, I believe that there has been some inconsistency between the deaneries responsible for administering the system in different parts of the country. Part of the review process will be to ensure that good practice is made known to all deaneries. I certainly accept the point made by the noble Baroness: we must appoint the right people.

My Lords, the Minister says that a portfolio of experience may be presented. In a process that has taken so long to design, involved so much effort and that is so important to the NHS and to the doctors who have spent years in education, can he explain what he tells his doctors about why the system was designed so that their experience, CVs and references were given so little weight?

My Lords, selection into each specialty was based on person specifications that were agreed with the Postgraduate Medical Education and Training Board and the royal colleges. Attributes that the doctor should have for that specialty are described there, becoming more specific as the level applied for in a training programme increases. The selection processes were devised with the input of stakeholders, including postgraduate deans, the medical royal colleges and trainees. The Academy of Medical Royal Colleges and junior doctors from the BMA were part of the stakeholder group responsible for developing the recruitment and selection processes. The application form asked applicants to provide evidence of their skills, experience and commitment—and, where appropriate, of their achievements in the specialty. Eligible applicants were considered for shortlisting by senior doctors in the specialty who were trained in the process.

The principles that I have just described to the noble Lord were agreed by all the stakeholders. It is quite clear that some shortcomings, as noble Lords have mentioned, have been identified. Some of those may be due to a variation in practice from deanery to deanery; others because they have been identified as the system has come to work in practice. As I have said, the review team continues to meet and there are still more details that need to be agreed. We await its final report at the end of this month; that will inform how the process will proceed. Where problems have been identified, I am keen that we put them right.

My Lords, I think that we are very grateful to the Minister for his apology about what has happened. We all recognise that he has been one of the most popular Ministers with the medical profession in the health service for the good that he has done, for which we are very grateful. Frankly, however, this situation has been a bit of a disaster. I suspect that it is not really the current Minister’s doing; none the less, it needs to be put right urgently.

Unfortunately, we are still hearing one or two buzzwords that I would rather not hear. The Minister used the word “transparent”. I do not believe that this process is truly transparent. There has always been competition for jobs, and it is right that there should be, because competition should ensure that the best people for the job get it. However, the current competition certainly does not allow for that; nor is it fair or logical. Of course every patient wants communication, but ultimately what they want above all from their doctor is competence. This method of application does not allow for competence, because it is purely subjective. The whole form is badly designed.

I speak as someone who has a conflict of interests. I have a son who has just gone through this process. His PhD yielded 11 publications in good peer-review journals. None of that could be shown on the form; nor could someone who has worked with him give him a reference. A young woman who works in my laboratory started as a science graduate and gave up every summer and winter holiday to work in the laboratory voluntarily. She managed to raise funds to maintain the research that she was doing and got her trips to California paid for three times. She went through medical school at my suggestion and has been absolutely assiduous at every stage. However, the trouble is that, although she has given up every holiday, she is now in this system and I cannot give her a reference, even though she is absolutely outstanding. That is quite shocking because the quality of the reference is very important, and we must accept that it is the only way in which you can judge someone’s initial competence when they apply for a job. I therefore hope that the Minister will review this whole method of application very carefully after the initial impact has been dealt with.

My Lords, I am grateful to my noble friend. I am sure he will accept that it was better to convene this review group to deal with the immediate issues that have been raised and to allow round 1 to continue, and then to listen further to the review team to see what further changes might be made in round 2 and to learn further lessons about how such a process can be implemented in future years. I give that commitment to my noble friend. It is fair to say that the application form is not about testing clinical skills; it cannot do that. Its purpose is to choose people for interview, where evidence of their competence in given areas can be further assessed. The questions were designed in partnership with the Academy of Medical Royal Colleges, training representatives and other stakeholders. I fully accept that it is important that all those stakeholders, particularly the junior doctors who are applying for specialist training programmes, need to have confidence in the process. I am committed to doing that, to listening very carefully to the review group and to making necessary changes. I shall take very careful note of what my noble friend has said.

My Lords, I, too, declare an interest in that my son is also going through this process. I am also grateful for the Minister’s apology. I take it from his apology that he is aware of the devastating morale implications of how this process has panned out and the changes that have taken place because of the difficulties that arose and the consequences that have resulted. For example, people have to scurry around at short notice in the midst of differing shift patterns to get references, which are now being accepted and have to be signed in person.

I have a question about the process of short-listing and the task of the consultants and those who have to do it. I am aware that any process designed by a committee is going to be much better than one designed by an individual—that necessarily follows. However, this process requires people to consider a series of 150-word statements, many of which will be similar in tone and nature, if not identical in wording, and to look at many dozen—and in some instances several hundred—such applications in a short period. I wonder whether those who advised on this system had thought about the practicalities. Many of us who have been involved in other forms of selection processes recognise how difficult it is to look at what are essentially standard statements and distinguish between them. I wonder how sensible it was, and how much this was reviewed by those who are experienced in this sort of selection process.

My Lords, my noble friend raises an interesting point. I fully understand the difficult time that this has inevitably caused for junior doctors. However, whatever system had been adopted, choosing junior doctors to go on to specialty training courses will inevitably, like other tough selection procedures, prove a stressful time. But of course we need to make sure that those junior doctors have confidence in the processes and procedures they go through. That is the importance of the work of the review team, to which we will listen carefully.

Let me make it clear that applications were scored only by doctors. Preparatory work was done by the individual deaneries, which were responsible for the administration of this system, to help doctors in the most effective way possible. Again, I will want to listen to the feedback from doctors involved in both the short-listing and the interview process to see if there are areas where improvement can be made. That is the whole purpose of the review team. I offer enormous thanks for the time the doctors involved have given up so far and will give up in the future. However, it would not be fair to say that they were not given appropriate guidance and support, and I am keen to learn any lessons that have come as a result of their experience.

My Lords, the numbers in the dental profession are much smaller, but is the Minister aware of any plans to expand this recruitment and selection process to specialisms in dentistry?

My Lords, it is perfectly clear that a number of candidates of very high calibre have been missed and not offered interviews. Perhaps this is a question for Professor Douglas’s review group, but does this not have a knock-on effect in that those who have already received interviews may be some of those who are perhaps not of such high calibre? There is a limited number of posts and some of the people who are perhaps not the crème de la crème may already have been recommended for them—or if not appointed. Is this not going to somewhat queer the pitch even if all those doctors who have been refused interviews eventually get one?

My Lords, I can tell my noble friend that my officials have taken careful advice on the appropriateness of the procedures that are now going to be adopted. No appointments have been made in round 1. I can also tell him that the initial feedback from those doctors who have already undertaken interviews is that a very high standard of candidate has been short-listed. But the importance of the Statement last Friday is that it enables us to strengthen the process in round 1. It means that all applicants at ST1—the first level of the specialty training—who have not been short-listed for any interviews will have their application reviewed and may be offered an interview in round one. That is the most appropriate way to try to deal with the issues immediately, but as I have said to my noble friend, we have sought advice and we are confident that this is the correct way to proceed.

My Lords, I would like to pick up on the point made by the noble Baroness, Lady Barker. When everyone embarked on this journey we were in general agreement that there was a case for change; that life was not perfect under the old regime. First, I would like to know when these discussions commenced. Secondly, could the Minister indicate at which point, in his opinion, things started to go wrong? Thirdly, I would like to address a question to some of my colleagues here. How do we know that these people who have not been selected are of high calibre? Who is making the judgment about this?

I was in one of our famous hospitals on Friday afternoon, being tended to by a young junior doctor who told me that she was generally in favour of the changes being proposed. She was of Asian extraction. She said she believed that under the system she would have a much better chance of being able to compete for the better posts that were to be filled. She was generally in favour, but she believed that there would be strong resistance—as there always is, in her opinion—to any change, particularly from consultants and from people of the old school, as she described it. She says there is still an old-boys system operating which she found quite unacceptable—I raised this with the noble Lord, Lord McColl, at lunchtime. There will be a whole range of different views on this, but when does the Minister believe that the situation will be resolved to, as is hoped, everyone’s satisfaction? Those of us who do not have a vested interest other than simply being patients in the NHS want to ensure that, as the Government proceed with their programme of modernisation, there is a direct link between delivering the agreements reached by the stakeholders and the way in which those stakeholders are subsequently rewarded with the taxpayers’ money, to which we all subscribe.

My Lords, I understand that there have been intensive discussions about the new system among all the stakeholders I have mentioned over the past four years. My noble friend then referred to the old system. Of course, one of the problems that has always been perceived within it has been the question of whether there was an old-boy network. There has been some evidence of that. But there were also concerns that junior doctors went from job to job without properly focused training. As I have said already, junior doctors often applied to many different institutions. Often hundreds of applications were received for one post. The whole system was completely unsatisfactory. That is why the stakeholders got round the table to devise a new system. I have no doubt whatever that coming out of this will be a fairer, better approach to the selection and training of doctors to go on these important, specialty training programmes.

Equally, it has been clear that there have been some practical teething problems with some of the deaneries and the way the process has been approached. The purpose of the review team is to learn those lessons and put things right that need to be put right and then to proceed with the general principles of a fair process designed to ensure that the best possible doctors are selected for specialty training programmes to the benefit of the National Health Service and the people of this country.

Welfare Reform Bill

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 im