Committee (4th Day)
Clause 2 : Work-related activity: income support claimants and partners of claimants
44: Clause 2, page 6, leave out lines 1 to 4
I wonder whether it is only me who thinks that it is perhaps appropriate that on the fourth day of Committee we are starting at the beginning of page 6 of the Bill. Amendment 44 is, I hope, a simple point—although some of my simple points have elicited so much conversation on previous days that perhaps it is not as simple as all that.
I would merely like the Minister to confirm that this is a reference to the phasing of age cohorts made necessary by the rising pension age. If this is the case, as I assume, could he please relate that to the benefits systems being restructured under this Bill and say if, as a result, there will be any difference in the benefits paid the individuals who fall into different cohorts—and, if so, why? New Section 2D(8)(d) says that,
“any reference to a person attaining pensionable age is … a reference to the time when a woman born on the same day as the man would attain pensionable age”.
But where are the references? I could not find them earlier in the clause when I had a quick look through. I therefore assume that these references will be in the regulations flowing from the clause. Perhaps the Minister can help me out. I beg to move.
Dealing with the noble Lord’s last point, about the references, I presume he means references to “under pensionable age”. Paragraphs (a) and (b) of new Section 2D(2) pick up somebody who,
“is under pensionable age, and … a member of a couple”.
I think that that is the reference that the noble Lord sought.
Dealing with the amendment more fully, it is not our intention to introduce the progression-to-work pathfinders for those parents who are of pensionable age. However, in order to achieve that intention, it is necessary for the provisions to define the meaning of “pensionable age” and to do so in a way which will treat men and women on an equal basis. If this amendment is accepted, men aged 60 or over would be treated differently to women of the same age until retirement ages are equalised for men and women in April 2020; I do not think that that was the intent behind the amendment, but rather that it was to probe, as the noble Lord explained. That is why that provision is there.
The progression-to-work pathfinders are for parents of working age with a young child. In the rare cases where claimants of state pension age have a youngest child in this age group, they would still have voluntary access to the support on offer. For those parents who are about to reach pension age and have a youngest child aged three to six years old, we will still require them to attend a work-focused interview so that an adviser can discuss with them the benefits of entering work and the support available to help them do so. This is in line with proposals under Clause 28 to introduce work-focused interviews for people of pension age.
When introducing this measure, we will not roll this out immediately to all parents who qualify. Instead, we would want to introduce the progression-to-work model over time. When rolling out this initiative we will take a number of factors into account, which may include the age of the parent. I hope that that has dealt with each of the two main points that the noble Lord has pressed me on and, accordingly, I ask him to withdraw his amendment.
Certainly I will withdraw my amendment. I was interested to hear the Minister say that not everything will happen at the same time. Perhaps we can develop that thought a little later today. It is clear that parents of pensionable age need to be defined. I accept that, but I wonder how many such people exist in the system. Is there any way of telling how many parents of pensionable age we are talking about? I leave that thought with the Minister as it is probably unfair to bounce him with it now.
Amendment 44 withdrawn.
45: Clause 2, page 6, line 13, after “an” insert ““individual”
This is rather different. I may have got myself into a muddle thinking about the two rates of employment and support allowance. Amendments 45, 47, 48, 50 and 51 constitute quite a large group. It has been made clear several times—the illustrative examples that the noble Lord kindly sent, which the noble Baroness, Lady Thomas, described as panglossian the last time we met, confirmed this—that the requirements to undertake work-related activity are an unofficial contract between the personal adviser and the participant. Perhaps on reflection I should not have used the word “unofficial” since sanctions can apply for certain reasons. Indeed, I have noted from the Minister’s speeches that very often he thinks of sanctions first and the reason for them second, which is why I became a little exasperated the other day when I interrupted the noble Lord by repeating the word “No” several times.
Nevertheless, the contract is what I might call person-specific, so although I am not particularly wedded to the word “individual” in this group of amendments, the action plan is individualised—a point made in several of the amendments tabled by the noble Baroness, Lady Thomas. I am not sure that “individualised” is a particularly good word—“personalised” might be better. It would give a great deal of confidence to participants if the Bill were amended as the amendment suggests. I feel this particularly because all changes to social security laws are viewed with the greatest suspicion by those affected, or likely to be affected. The Minister cannot but be aware of the consternation of disabled people and their advisers that was expressed when discussing the first Welfare Reform Bill. None of us wants a repeat of that. I tabled the amendments to give a tiny bit of comfort to those who will be affected by the Bill, and I hope that the Minister will take his consideration of them in that particular light.
This may well be the shortest speech that I shall make in Committee, but this is an extremely good amendment. Having the word “individual” before “action plan” will give out an entirely different signal, which is very important. Would it cost the Government anything to do that? I support the amendment.
I hope to persuade the noble Lord, Lord Skelmersdale, and the noble Baroness, Lady Thomas, that it is not particularly appropriate. The exchange that we had the other day was not so much about sanctions but conditionality, and conditionality is not just about sanctions at the end of the process.
One follows the other, potentially, if the conditionality is not met. The infamous case studies were merely illustrative to try to help noble Lords. I would not want them to take on a significance beyond that, but perhaps they have.
Under the progression-to-work model, parents with younger children will be expected to agree an action plan with their adviser. It will set out the claimant’s individual route-way into work. The activities recorded in the action plan will be reviewed and updated at each subsequent meeting. When producing an action plan with an individual, the adviser will encourage parents to think about their aspirations, identify the strengths upon which they can build and agree steps that move them towards their goals. Together they will identify the support they need to do this. The adviser will ensure that the person’s wishes and individual family circumstances are fully taken into consideration before the plan is finalised and agreed. This is important so that parents, particularly if they have mental health conditions or learning difficulties, feel in control of their situation as they are progressively encouraged to move in to new and more challenging activities.
We will ensure that safeguards are in place so that claimants are not put in a situation where they are being asked to comply with a requirement that is unreasonable or inappropriate to their individual circumstances. This will include circumstances where appropriate childcare is not available, as we have discussed extensively. We will also ensure that anyone facing a possible sanction can easily rectify their situation and should not therefore suffer unnecessary hardship or concern. During this joint process, however, I believe that we need to maintain the ability to direct a person to an activity, if after receiving the appropriate support, opportunity and guidance they remain reluctant to improve their circumstances. If there is a failure to carry out the agreed activity outlined in the plan, it could lead to further action and possibly a sanction, but this would only ever be as a last resort. Where someone is finding difficulties in meeting a particular activity agreed in the action plan, regulations will allow them to ask for the plan to be reconsidered.
Turning to this group of amendments, it is not our practice to include in legislation that activities will be individual to the claimant, but to ensure that that is emphasised and enforced in adviser training and guidance. Individualisation—or personalisation, to use the noble Lord’s term—to us means being responsive to the circumstances of, and the factors that affect, an individual. It is possible to have an individual action plan that is quite general, not personalised. The important thing is that the action plan meets the personal circumstances of that individual. An individual plan might be a general plan and putting the word “individual” on it would not change that. The personalisation of the plan is important.
Action plans will take into account, for instance, whether the person is in a couple or is a lone parent, has any health issues and their time out of and distance from the labour market, educational attainment, skills levels, confidence levels and aspirations for themselves and their family. I hope I have addressed as forcefully as I can the fact that action plans should and will be individualised and personalised, so that the wording proposed by the noble Lord is not necessary.
There could be an action plan for individual A, but it could cover only general issues and be used for a range of individuals. It is important that the content of the action plan is constructed to address the needs of and the barriers faced by an individual. The fact that a plan is individual to a person does not mean that it is personalised in the way that we want it to be personalised.
The phrase “holes and digging” sprang into my mind as the Minister went through his brief. The Minister has said that action plans will take into account personal circumstances. We are not going to have—again to use an expression used earlier by the noble Baroness, Lady Thomas—one size fits all. There will be a shelf, if you like, from which you can pick the various bits that are appropriate to that individual as it seems to the personal adviser. The personal adviser and the individual will agree what they are going to do. That will be set in concrete, almost, in the action plan. I cannot see why these action plans should not be described as personalised.
I said that I was not wedded to the particular word, given that these amendments use the word “individual”; none the less, I am very grateful to the noble Baroness, Lady Thomas. She, like me, believes that you need to give confidence in legislation, especially social security legislation, to those people who are going to be affected by it. At the moment, I cannot see that sort of confidence arising in the Bill. Of course I shall withdraw the amendment, but I have absolutely no doubt that I shall need to come back to this at the next stage of the Bill, unless the Minister’s comments throw me.
If we are to discuss the matter at a subsequent stage that is probably the best time to do so, and I could reiterate the point I have just made. I will just try it once more. The fact that you have an individual action for person A and an individual action plan for person B does not of itself mean that the contents of those action plans are personalised to individual A and individual B. I would hope that we have agreement that these action plans need to be “personalised”, to pick up the noble Lord’s word. Referring in the legislation to an individual action plan does not achieve that.
I am certainly happy to reflect on that. I genuinely think that it is unnecessary, however. I do not think that we are apart on what we want these action plans to contain, and the framing of the legislation is perfectly adequate to achieve that. The amendment is not particularly helpful. If the request were whether there was some other way to change the legislation to make it clear in primary legislation that it should be personalised to the circumstances of the individual, I would be happy to reflect on that. I cannot promise that we would end up with a different result. I do not detect from any of this exchange that we have a difference of view on what we want those action plans to contain in practice and what we want them to achieve.
True, we do not have a difference in view, but what we have is a piece of legislation that I do not believe reflects that approach. Everything we have learnt about the various statutory instruments that will flow from this legislation confirms what the Minister has just said, what the noble Baroness believes this legislation means and what I believe this legislation means. All the noble Baroness and I are asking for is that there should be a word somewhere in the legislation—and I think that these are the appropriate places—that reflects that in plain English.
Clearly, we are not going not get any further on this subject today. The Minister has said that he would reflect. He is obviously doing some quick reflecting this afternoon.
We have probably almost beaten this one to death. However, I draw the noble Lord’s attention to new Clause 2E(1), which says:
“The Secretary of State must in prescribed circumstances provide a document (referred to in this section as an “action plan”) prepared for such purposes as may be prescribed to a person who is subject to a requirement imposed under section 2A or 2AA in relation to any of the following benefits”.
That links it to an individual. However, rather than spending more time this afternoon, given the other amendments to come, I am happy to take this away and reflect on it. I am not sure that we will have a meeting of minds, but let us see what we can do.
I detect a soapy mirror for reflection. I do not think that that was a very good example and it does not meet the point made by the noble Baroness and me. I am delighted that the Minister will give this matter further thought, but he has given absolutely no guarantee that he will come back to it. If he does not, I assure him that I will. I beg leave to withdraw the amendment.
Amendment 45 withdrawn.
46: Clause 2, page 6, line 21, at end insert “at the lower rate”
Given that social security laws are viewed with great suspicion outside the two Houses of Parliament, it is beholden on the Government to be very clear and inform people in advance of the pilots starting and, even more importantly, to publicise what is going on before work-related activity is rolled out countrywide. That applies equally to able-bodied people; doubtless, we will hear quite a lot more about this in our discussions.
Employment and support allowance, to which Amendment 46 refers, when it is fully up and running is to be paid at two rates. Let us forget the first 13 weeks, when everybody is on the lower rate; what we are interested in here is when the two weeks operate side by side for a longer period of time. It is also, like jobseeker’s allowance, to be paid on two different criteria, depending on the amount of NICs paid. If I am right—and I think that I probably am—the higher rate is payable when the claimant needs to be supported because of disability, the lower one when the claimant has limited capability to work. My problem with line 21 on page 6 of the Bill is that both those are covered at the same time; neither the Peers’ information pack nor the notes on clauses has been any help to me. It seems to us—or to one of us, at least—that the support group is extremely unlikely to come into requirement for action plans for work-based interviews, unless the individual starts to recover from whatever illness or disability caused them to be put in that group in the first place, whereas those with limited capability to work and with lower benefit in payment will always need to be subject to interview action plans—and perhaps to the Minister’s favourite, sanctions, as well.
Hence, I have tabled this probing amendment to discover what plans the Government have for the long-term ill and disabled. I am sorry—I should have put “people” in that sentence; I apologise particularly to the noble Lord, Lord Rix. From the wording on the Bill, which covers everyone on contributory ESA, the Government must have some reason, and I should be grateful if the Minister would explain. It would also be useful for him to explain the thinking regarding those on the non-contributory basis of ESA, which also needs to be covered somewhere. I beg to move.
These provisions generally deal with recipients of income support or with partners of certain recipients of income-related benefits. If I understood the thrust of the noble Lord’s remarks, he seeks to ensure that ESA claimants in the support group are not brought within the provisions. I understand why he tabled the amendment, but I hope that I can convince him, at least on this occasion, that it is unnecessary.
Clause 2 inserts new Sections 2D, 2E and 2F into the Social Security Administration Act 1992. Together with the existing provisions in Sections 2A and 2AA of that Act, they provide the basis for introducing the concept of a progression-to-work group, as envisaged by the Gregg review.
By his amendment, the noble Lord seeks to protect those receiving the support component in employment and support allowance from the strictures of these provisions. However, the provisions of this clause apply only to claimants of income support and the partners of claimants of that benefit, of income-based jobseeker’s allowance and income-related employment and support allowance. So it applies to the lone parents with younger children whom we have discussed and the partners of claimants of other income-related benefits. The clause does not impact on claimants of the employment and support allowance at whatever rate that benefit is paid, so the amendment could not have the effect that the noble Lord seeks.
There are extant powers in Sections 13 to 15 of the Welfare Reform Act 2007 which allow us to subject employment and support allowance recipients to work-related activity, action plans and adviser directions, but none of those provisions applies to claimants in the support group. The construction of Clause 2, together with existing legislation in the Welfare Reform Act, does not permit people in the support group to be subjected to work-related activity. I hope that the noble Lord will withdraw his amendment in light of that explanation.
I would not even have considered putting down this amendment, but for the fact that new Section 2E (2)(c) of the Social Security Administration Act does not refer to employment and support allowance, which given, as the Minister has just said, that the section refers to recipients and future recipients of income support or income-related benefits, caused me slight confusion.
I am glad that the support group of ESA will never be expected to fit into the progression-to-work part of the Bill, but the limited-capacity-for-work group on the lower rate of ESA obviously will be. Would it not be appropriate to have an action plan for them, with everything that goes with it?
I therefore accept that the amendment is not necessary and, even if it were, I take the Minister’s point that it is in the wrong place in the Bill. I shall perhaps think a little further on that, but I doubt that it will be necessary to come back on this issue. I therefore beg leave to withdraw the amendment.
Amendment 46 withdrawn.
Amendments 47 to 51 not moved.
52: Clause 2, page 6, line 45, leave out “only”
That dispenses with new Section 2E of the Social Security Administration Act 1992 and we move on to new Section 2F, which allows the Secretary of State to give directions about work-related activity. I am unsurprised that the Secretary of State should have such a power, as these are not details that one would expect to see set out in the Bill. However, we still need to find out what the Secretary of State will do with these directions, which has been a focus of attack throughout our discussions on the Bill, and I make no apology for it.
Amendments 52 and 53 come as a pair, and Amendment 88 does something very similar in Clause 8. I wonder why the Bill restricts the participant to just one activity that may be deemed work-related. That seems unnecessarily restrictive, and even short-sighted. It is easy to imagine circumstances in which a person is undertaking two or more activities that could be useful for progression into work, for example, working occasional shifts in a shop and also doing voluntary work. Both would be useful for a person seeking transition into regular employment, and they could easily happen at the same time. I see no good reason why both should not be found in the—I am not allowed to call it “personalised”—action plan. Even in case study no. 1, it is clear that in the “work for your benefit” schemes, to say nothing of the progression-to-work schemes, more than one activity can, and often will, be carried out over the relevant timescale.
The qualities that a person needs to find work—simple but important things such as time-keeping, presenting oneself well and dealing with other people—can be learnt and improved on in different ways. The route to these skills might come in different forms, and that is surely to be encouraged. If a person has the gumption to engage in more than one activity that can be seen as work-related, that is to be applauded and encouraged. I am unclear why the Secretary of State should be able to specify only one activity as work-related. Perhaps the Minister will be able to explain that there is more than meets the eye in this rather curious prescription.
Amendment 59, which is in this group, is designed to ask why Clause 2(3) allows for a direction to provide for a variation to have effect before the direction is given, which is a little confusing. Although that seems to be an impossibility, I imagine it is so that the Secretary of State can give retrospective approval to a change that has occurred without his say-so, but which should not result in a sanction on the participant. That sounds as if the original direction was flawed in some way and the participant was right to ignore it. Is that what the Government have in mind? I beg to move.
My Lords, as part of the progression-to-work pathfinders, parents with younger children and those claiming employment and support allowance will be expected to undertake work-related activity that will be discussed and agreed with a personal adviser. During this joint process, the adviser will encourage parents to think about their aspirations, identify the strengths upon which they can build and agree steps that move them towards their goals and eventually into sustained employment. However, I believe that we need to maintain the ability to direct a person to an activity if, after receiving this support, opportunity and guidance, claimants do not engage with this process, especially if it has been identified as essential in helping them prepare for paid work.
Amendment 88 removes the power to direct a claimant of employment and support allowance to a specific work-related activity. Advisers will always encourage, persuade and support people into activity they feel is necessary before considering requiring someone to undertake a particular activity. However, there is a strong case for stepping up conditionality as part of the action planning process where someone consistently fails to engage effectively with the personalised support regime. Our evidence shows that conditionality, through mandatory work-focused interviews, is successful in helping claimants with health conditions return to work. Pathways to work increase by 25 per cent the likelihood of a new customer being employed 18 months after starting their claim.
However, we want to go further. In the current economic climate, it is even more important that individuals make full use of the support available to them to address their barriers to work. That is why, in line with Gregg’s recommendations, we want to give advisers this power to require claimants to undertake specific activities where appropriate. For example, two situations in which we believe that an adviser should be able to require someone to undertake a specific activity are where a claimant is carrying out work-related activity, but has a significant barrier to work which they have been encouraged to address but has failed to do so, or where a claimant has consistently failed to meet their general work-related activity requirement without good cause. The specific circumstances will be set out in regulations and, where met, claimants could be directed into any activity, subject to certain safeguards, which helped them to move closer to work.
When advisers issue any direction, they will consider their previous discussions with the customer, any external advice and, most importantly, the individual circumstances of that parent. This means that any direction given will be suitable and achievable for the person concerned at the time.
I reassure your Lordships that directions will not be used to require an employment and support allowance claimant or parent to apply for or take up a specific job. We have also made it clear that no employment and support allowance claimant will be required to undergo medical treatment under this provision.
The power is necessary to ensure that advisers have the tools available to require everyone to undertake some activity to address their barriers to work. Although we have a firm belief that a collaborative approach with claimants should be the norm, it is necessary to be able to act where a customer is undermining the rationale of the support that we are offering.
On Amendments 52 and 53, I stress again that we shall issue a direction only after every other possible avenue has been explored. If it is necessary to issue a direction, we want it to apply to one specific activity to enable the individual to concentrate on the main barriers that affect them. If we directed them to undertake multiple activities, it may cause confusion or be inappropriate for the individual involved, especially if they have any significant barriers such as learning difficulties or if their family circumstances are chaotic. Directing them to multiple activities in such circumstances would be unacceptable and monitoring compliance difficult. Instead, we want a personal adviser to be able clearly to articulate the activity that will help address the main barriers to an individual entering work, so that the parent is in no doubt about what they are required to do.
Amendment 59 would remove the ability of personal advisers to backdate their decision to revoke or reconsider a work-related activity contained within a direction. The ability to revoke or reconsider an action that a parent has been directed to undertake does not unfairly penalise them or lead to unnecessary sanctions. This is especially important where they are finding difficulty in undertaking a particular activity; for example, if there has been a change in their circumstances, or an event in their life, which means that it is no longer appropriate for them to undertake that direction at that time.
We want to retain flexibility also so that an adviser can backdate a direction, where this would be in the parent’s interests. For example, an individual may not have carried out the activity specified but carried out some other activity which the adviser may deem acceptable. By backdating the direction, we would also avoid any consideration of penalising the individual for the period between the issue of the original direction and the issue of the redirection. I hope that those explanations and assurances will satisfy the noble Lord, but he will doubtless press me again if they do not.
Again, I am grateful to the Minister. The individual action plans, as I think we both agree, could contain multiple activities which made it more likely that a person ended up in work. New Section 2F(1)(a) sets out the direction—I have no complaint about directions; I agree with the Minister that there will be occasions, which I hope will be rare, when they are issued because they are fair and appropriate. However, the individual direction will, as I understand the Bill, direct the individual to undertake only one of the multiple activities described in the agreed action plan. I am not sure that this is a particularly sensible arrangement or that you can pick only the most appropriate of all these agreed things in the action plan—presumably, to the exclusion of all others—to be the one thing on which you will direct him or her. I shall have to give this further thought.
That does not mean that you cannot have a succession of directions picking up different components of the action plan. I hope I explained that before there are any directions, there would be collaborative engagement to encourage the individual to engage in work-related activity on possibly multiple fronts as the action plan might suggest. It does not stop a specific direction being succeeded by another one later. The purpose is to identify key barriers to work and to say that it is that and that alone at that point in time with which the individual should engage. Obviously, multiple activities can and will be part of the action plan, which we encourage. It is just the act at a particular point in time of mandating more than one specific activity, which could give rise to confusion, and we would particularly want the opportunity of individuals to be encouraged to concentrate on the key barrier which is preventing them moving closer to the labour market.
I hope that Hansard reporters have better hearing than me. I thought I heard the Minister talking about identifying key barriers—the plural—to work in that additional information. He meant, of course, a single barrier to work which would be identified in the direction and should be concentrated on to the exclusion of anything else in the action plan.
There may be several barriers to work. This direction-making power is to say that the adviser has the power to direct concentration on a particular barrier. It does not preclude at the same time the individual still engaging on other aspects of the action plan, but specifies that a particular action must be taken because that is seen as a key barrier.
That is a good example. I do not see why that could not be the case. There might be other issues around some skills, but that is a very helpful example. I am grateful to the noble Baroness for that. A related issue might be attending a training course that may contain issues around social and financial skills, et cetera. A particular action may encompass a number of other components.
I said that there would be a succession of directions, but that at any one time there would be only one direction. But that would not preclude subsequent directions. The idea is that someone would come in for a work-focused interview and there would be discussion around activity. If necessary, a direction would be imposed. At the next work-focused interview there would be a reflection on that to see how that had progressed. It may be that if encouragement to make further progress is not undertaken, another direction could be given to address another remaining barrier. But there would not be two directions at the same time.
Very often women with children who do not know English face several barriers at the same time. I am not sure that it is easy to prioritise whether it is the knowledge of language, problem of culture or the presence of children that is the largest and most important barrier to working. At the same time, looking after children is work, and that is not recognised. Until and unless the work that women do as child carers is recognised, that fundamental barrier will never be confronted or removed.
I note the point that the noble Baroness has pressed on a number of occasions. We may in part be talking about semantics. We would all recognise the importance of looking after families and bringing up children; there is nothing inconsistent with what is provided for in the Bill with recognising and supporting that aim. However, I take the point that issues around coping with family life and children are a key barrier that may have a number of facets. I hang on to the point that, so far as directions are moving closer to the labour market, doing it one at a time is the right way to go. Otherwise, you could create all sorts of confusion, particularly if you were trying to unpick all those issues that looking after families and caring for children actually entailed. That is why I think that this is the right approach. Indeed, the action plan should seek to prioritise the barriers.
Directions are not the norm; they are to be used only when clients no longer follow their action plan, so we do not see them as a routine part of the process. If people do not follow their action plans, we take on the key item from the action plan and direct compliance to try to kickstart compliance generally. We do not see it as a routine and normal part of the process, but it is an important facility.
Yes, I think that if a direction is made, the individual complies and he comes to the next work-focused interview, there is a recap on how the action plan is proceeding and then another direction, which would be relevant from then on in. Therefore, it would technically supersede the earlier direction. It would not be ripped up in a sense because the direction would stand; it would have been complied with and action would have been taken in relation to it—then you would move on to other barriers.
Amendment 52 withdrawn.
Amendment 53 not moved.
54: Clause 2, page 7, line 5, at end insert—
“( ) must be reasonable, having regard to whether the person has a learning disability and the nature of that learning disability;( ) must be reasonable, having regard to the sufficiency of the support available to be provided to the person if they have a learning disability;”
I shall speak also to Amendments 89 and 92. I am joined in their support by the noble Baroness, Lady Thomas, and in two of them by my noble friend Lord Ramsbotham. I am not quite certain why he did not put his name down for Amendment 92, but I cannot ask him at the moment because he is firing warning shots at this moment in the Chamber, regarding the Iraq invasion. I can only hope that the shots are not blanks.
Taken together, these amendments will ensure that work advisers who will have the power to dock benefits and prescribe work-related activity are trained in learning disability issues. They need to be able to understand what a learning disability is; the impact a learning disability has on an individual’s capacity to understand and undertake tasks; and the support required by people with a learning disability in order to carry out a work-related activity.
The amendments echo the concerns raised on Second Reading by my noble friend Lady Murphy and by the noble Baroness, Lady Thomas, that work advisers will not receive adequate training and that, as a consequence, people with a learning disability, who are unable to comply with their action plans, may face unjust situations and unjust sanctions.
Different kinds of work-related activity will be appropriate for different claimants, depending on a range of factors, including their skills, qualifications and experience, their employment goals and the manner and extent to which their capability for work is limited by their physical or their mental condition. As I have said, claimants will need some level of support in order to undertake work-related activity. That support is quite likely to be specialised, including knowledge of the claimant’s disability or health condition and of the way this limits their capability for work. If such support is not available, then work-related activity will be difficult to undertake, and, very importantly, less likely to lead to sustained employment. Given that, I believe that the new support as well as the new obligations should be in the Bill wherever relevant. That is why I have put forward these amendments.
In the debate in Committee in another place, the Minister with responsibility for disabled people commented:
“A direction can only be issued as a last resort and must be suitable and achievable for the individual concerned. That is especially important if someone has a learning disability and requires specific support in order to undertake it. As further reassurance for Members on this point, I have set the safeguards around making sure that the requirements of a person with a learning disability are appropriate”.—[Official Report, Commons, Welfare Reform Bill Committee, 24/2/09; col. 143.]
Of course I welcome these assurances, and I greatly welcome and appreciate the publication of the draft regulations referring to work-related activity for ESA customers, which the Minister kindly distributed in draft form at the beginning of this month. They contain some welcome safeguards, which will go a long way to ensuring we get some justice, but I am afraid that they do not go far enough. They do not protect a claimant from failure to understand what is expected of him due to the nature of his learning disability; they do not protect a claimant from failure to comply with conditions imposed upon him because there is insufficient support available to help him to comply. In essence, they do not address the very real fears of people with a learning disability that their benefits will be cut despite good intentions on their behalf to meet the demands of the new system.
Nor do the draft regulations address the issue of specialist training for work advisers. As I have stated previously, the Government’s contracting out of employment provision using the prime provider model, which squeezes out smaller specialist providers with expert knowledge, is likely to make it more rather than less likely that work advisers will be lacking in specialist disability knowledge.
This point was forcefully brought home to me at Mencap’s annual SNAP! awards ceremony last night, which took place at the Proud Galleries in Camden town. SNAP! showcases the lives and talents of people with a learning disability through photographs and short films. Many of the prize winners with a learning disability might have appeared to those without knowledge of disability—such as those work advisers being discussed today—as incapable of working. But, as the Minister with responsibility for care services from another place, Phil Hope, found out last night when he presented some of the awards, people with a learning disability can excel if they receive quality support to help them. It was particularly interesting to hear, last night, the Minister’s view that the forthcoming Green Paper on social care would tackle many of these support issues. Perhaps the Minister here today will elaborate further.
The need for quality support is further illustrated in the story about Katie Hart. Katie has an NVQ in business and administration, excellent IT skills and more than a year’s worth of unpaid work experience in the administrative sector. Katie also has a minor learning disability. For three long years, she applied for jobs in the administration sector, only to be turned down for every single one until a local company finally offered her a rather inadequate administrative post.
We cannot escape the fact that employers are reluctant to employ people with a learning disability, who still face a vast amount of stigma and discrimination. This means that people like Katie are likely to get to the end of the new process and be directed by their work adviser to carry out unpaid work experience at different companies for year after year. We need these amendments to protect people with a learning disability from facing sanctions due to companies’ reluctance to employ them rather than because they have done anything wrong.
I repeat: if the Government are to introduce a sanctions regime such as that in the Bill, they must match these increased obligations on the claimants with support from trained staff. I have read the Committee debate in another place, and these newly published draft regulations and, sadly, I am not convinced that this would be the case. I look forward to hearing whether the Minister will consider beefing up these draft regulations and the definition of “good cause” to address the points discussed today, and put safeguards for training and specialist support into the Bill. I beg to move.
The noble Lord, Lord Ramsbotham, has given me permission to come in at this point to allow him to catch his breath from the Chamber. This is an important amendment, which we support. I urge the Government to listen hard to what the noble Lord, Lord Rix—who is such a long-standing expert in the field—says.
As the noble Lord said, what those with learning disabilities need most from advisers in Jobcentre Plus is the right help and support for their personal disabilities. They need people who recognise what they can do and what they should not be expected to do in relation to work-related activity. This may not always be obvious to an adviser, which is why the training of Jobcentre Plus staff is so important. I hope that the Minister will fill us in on the training of staff in this field, as I think he promised to do at our last Sitting on Monday.
Those with learning disabilities are likely to be particularly trusting of advisers, which is why it is so vital that the advisers are properly trained to understand their needs and give them adequate and individually tailored support in this area. It is a pity that the access-to-work scheme will not be available, as is presumably the case, because we are talking not about work but work-related activity. But something like the access-to-work scheme would be terrific for people with learning disabilities.
I make no apology for mentioning that admirable organisation Thrive—I know that the noble Lord, Lord Skelmersdale, knows it very well—which aims to help disabled people from local communities change their lives through gardening. Part of the work of the Battersea garden project, under the Thrive umbrella, aims to help those with learning difficulties to fulfil their potential in myriad ways, and eventually gain a qualification to enable some of them to obtain employment in horticulture. If those who are responsible for the training of Jobcentre Plus advisers in this field wish to see a practical example of the help that is being given in Battersea, I am sure that that could be arranged. Finally, I ask the Minister whether Mencap is involved in the training programme of Jobcentre Plus advisers.
I apologise to the Committee for being absent at the very start of the debate, but I am also involved in the debate on the Iraq invasion. My reason for putting my name to the amendment is very much linked with remarks I made at Second Reading of the Policing and Crime Bill. That may sound slightly strange, but there I drew attention to the fact that at present the House is faced with an enormous number of different Bills, each with an impact assessment attached. I wonder whether anyone has bothered to do an impact assessment of the impact of any one of these Bills on any of the other Bills. With this Bill, that issue comes very much to mind, for two entirely separate reasons.
I declare an interest as an adviser to the Sainsbury Centre for Mental Health, which is embarked on two separate studies—one on the problem of mental health in prisons and the second on the problems faced by those with mental health problems, including learning disabilities, in getting employment. At the same time, in the apprenticeships Bill, a number of us are tabling an amendment to ensure that before starting school, every child is given a proper assessment of its learning abilities and disabilities to enable it to engage in education. In prisons, an enormous number of people lack the learning ability to engage in the system when they reach the age of 15. We find that in Northern Ireland they have decided that every child should be assessed at the age of two to ensure that the sort of learning difficulty being discussed under this amendment is raised at an early enough stage for something to be done about it.
Therefore, I voice my concern and my strong support for the noble Lord, Lord Rix, and the noble Baroness, Lady Thomas, in every word that they said. There seems to be a disconnect; on the one hand, we have an enormous number of efforts being made to improve what is happening for the identification of learning skills problems and learning disabilities and to do something to harness them; on the other hand, we are proposing that something should be done, if, for reasons perfectly explicable in the context of the disability, the disabled person cannot meet the conditions proposed in the Bill.
The amendment has been so ably moved that I do not need to add much more than my tuppenceworth. I support the amendments, particularly their thrust on training. We have got down to the nitty-gritty of what happens in practice to assist those who may not have worked for some time, have real potential but whose circumstances have been against them for all kinds of reasons, among them learning disabilities and mental health problems. The noble Countess, Lady Mar, has an amendment that has the same sort of implications.
The strength of this Bill lies in its potential for therapeutic interaction and a proper action plan that is supportive, whether individualised or personalised. It is a little bit like doing a care plan for somebody subject to a community treatment order under the Mental Health Act. You have to sit down and negotiate what the blocks are to remaining well and how to get through the system of hurdles to get well again and back into recovery. This is an analogous situation. My real fear—and we have brought this up before—is that we need to create an attitude that comes with training and understanding people’s conditions, and a cultural change among those who provide the services so that they get into the right relationships with people. Therefore, the fundamentals of training for the private providers—those who are going to the actual job—are crucial in a whole series of amendments, of which this is the most important. We must somehow use this Bill to make a real difference to how people become engaged with the work-related activity process, which then has the potential to lead them on to work. I support the amendment.
The noble Baroness, Lady Thomas, mentioned horticulture. Perhaps I may also mention the fact that a lot of people with learning difficulties have an extraordinary affinity with animals. Working with animals expands their view and they become more able to work with humans. We should not lose sight of that. In rural set-ups, some farms are very mechanised and difficult for young people, but others have animals, including horses, sheep, pigs and cows. A lot of kennels take on young people as well. You do not need an A-level or a university degree to work with animals. Animals love these people because they seem to understand them. It is a wonderful thing to see and I am fortunate to see it quite often. I support the noble Lord, Lord Rix.
I, too, support this amendment. Although it is not within my particular area of expertise, I have listened with a great deal of interest to what the noble Lord, Lord Rix, and others have said in support of it. It is very necessary for the text of this amendment to appear in the Bill, in particular in the section to which it is related: that is, the directions about work-related activity. In Committee, we have already had quite a lot of discussion about the necessity of ensuring that those responsible for administering this legislation have adequate training. That is doubly important for people with learning disabilities.
It is in the Government’s interests to ensure that this Bill covers adequately people with learning disabilities in the manner proposed under this amendment. I hope that the Minister will agree. He may not accept this wording, but I hope that he will accept the principle and ensure that something like this appears in the Bill.
The noble Lord, Lord Rix, will be glad to hear that this is an occasion when I will not be a bit of grit in the ointment. I support the theory of these amendments. Whether it is necessary to have them in the Bill, the Minister will no doubt explain in great detail. But it is clear, not least from the examples given by the noble Lord, Lord Rix, that people who suffer from learning difficulties will have particular and unsurprising difficulties in accessing the job market. I was absolutely horrified to hear about the experience of Katie, who was exemplified by the noble Lord, Lord Rix.
As an employer, I have to accept that an employer would normally be extremely cautious in considering the employment of someone with learning disabilities. Noble Lords should not get me wrong because my wife and I have for some time employed an individual—in horticulture, as it happens—with learning disabilities. Both he and we cope with the situation very well. But I can imagine other employers and other people with learning disabilities who would not gel anything like as well. In this day and age, I am not sure what interests one should declare. Some time ago I was asked to be a trustee of Thrive, which the noble Baroness, Lady Thomas, has mentioned. I also have a sister who is a trained psychological therapist and is studying animal therapy, with particular reference to horses, which, as the noble Countess, Lady Mar, said, often has very desirable effects on those with learning disabilities.
I am sure that the Minister will not disagree with the view expressed by all noble Lords who have spoken that particular attention will have to be paid to people with learning difficulties if these schemes are to be successful in getting them back to work or into work for the first time. I expect—although I am, as usual, prepared to be proved wrong—that the Minister will agree with all of this and assuage noble Lords by saying that this will all be taken care of under the individually tailored action plans. Of course, we are not allowed to call them that; they are just action plans. This is why the key amendment in the group—as with a similar set of amendments tabled by the noble Countess, Lady Mar, which are shortly to be debated—is the one that refers to precisely what training will be provided to jobcentre staff to enable them to draw up action plans addressing the needs of participants with learning difficulties.
We have not yet explored the activities of the contractor in all this. My guess, and hope, is that, to a great extent, the prime mover—the contractor’s personal adviser, if you like—will draw these things up. They will be approved by the jobcentre personal adviser. Of course, directions, sanctions and so on have to work in that way; they will be suggested by the contractor, and the more normal agents of the Secretary of State then actually impose them.
I would also be obliged if the Minister gave us the most up-to-date statistics—or perhaps the noble Lord, Lord Rix, has them—indicating what percentage of those out of work have been diagnosed with learning difficulties so that we have a clear grasp of the scale of the problem.
At the beginning of my speech, I indicated sympathy but expressed doubt that it is necessary to have these amendments in the Bill. I expressed doubt because I note that at the top of page 7—gosh, we are moving fast today—it says:
“A direction … must be reasonable, having regard to the person’s circumstances”.
Of course, a “person’s circumstances” would include any disability, including a learning disability. The noble Baroness, Lady Afshar, has spoken of the paucity of English among certain of the individuals we are talking about. As usual, I will listen carefully to what the Minister says, but that is not to say that I disapprove of the actions taken by the noble Lord, Lord Rix, this afternoon.
I thank the noble Lord, Lord Rix, for moving his amendment. It brings us to an important topic that we have touched on a little before in Committee. I entirely empathise with the sentiments behind the amendments in this group, as the noble Lord, Lord Skelmersdale anticipated.
I assure noble Lords that we take supporting customers with learning disabilities seriously. As I noted in one of our previous Committee sittings, however, the noble Lord, Lord Rix, identified the big gap between the employment rate of people with learning disabilities and that of pretty much every other group that we monitor. As I said then, we cannot allow this to continue. I hope that the provisions in the Bill, effectively resourced and applied, will be the route to help.
To successfully help those with learning difficulties, we will have to ensure that our advisers are adequately trained to deal with customers who have a learning disability; this is a strong theme that I will come back to in a moment. We will also have to ensure that any directions to a specific work-related activity take account of a person’s individual personalised circumstances, including any learning disability that they may have.
Amendments 54 and 92 seek to ensure that advisers must take into account a customer’s learning disability when issuing a direction to a specific work-related activity. I reassure noble Lords that the power to direct customers to a specific activity will be used only in a small minority of cases. Advisers will always encourage, persuade and support people into activity they genuinely feel is necessary before considering issuing someone with a direction to undertake a specific activity.
As stated in Clauses 2 and 8, any direction to an activity must be reasonable and, as the noble Lord, Lord Skelmersdale, cited, have regard to the person’s circumstances. Hence, any direction to undertake an activity by the adviser must be appropriate to the customer’s abilities and circumstances, which would include taking into account any learning disability that the customer may have.
Safeguards are in place which will apply if the claimant has misunderstood a direction to a specific activity. The claimant could ask for the direction to be reconsidered as part of the action plan reconsideration process. If the claimant does not comply with the requirement to undertake an activity because they did not understand it, they will be able to raise it as good cause for failure to comply.
In addition, every customer has the right to be accompanied by a carer or advocate when attending an interview. This person can help them to interpret and understand the advice and requirements being set out. Personal advisers can also recommend that the customer bring along a carer or other third party if they think that it is necessary or would be helpful.
Amendment 89 aims to ensure that personal advisers are adequately trained to deal effectively with ESA customers who have learning disabilities. We recognise the central importance of the adviser role if we want customers to be able to progress positively and confidently towards a return to work. We shall focus strongly in the progression-to-work pathfinders on developing the staff who deliver this role and invest in the necessary training. We have already started talking to stakeholders about adviser skills and knowledge and will continue to do so—that is vital.
However, pathways personal advisers already have considerable training in dealing with customers with a range of health conditions. It is important to point out that pathways advisers are not working in isolation. In Jobcentre Plus pathways areas, they can seek advice from, or refer customers on to, specialist disability employment advisers or work psychologists.
In provider-led pathways areas, all our providers have delivered specific training to their staff to assist them in dealing with customers with health conditions. They also have links to specialist subcontractors to whom clients with specific medical conditions can be referred for additional assistance. They can also refer customers to the disability employment adviser via the jobcentre. For example, WorkDirections provides advisers with training in learning disabilities, facilitated by vocational rehabilitation specialists from the organisation Disability Matters. The training covers effective communication and providing support to clients, as well as information about agencies that can provide additional support to clients with specific conditions when in work. It specifically addresses working with clients who have Down’s syndrome, autism, Asperger's, cerebral palsy, dyspraxia or acquired brain injury. Working Links has used the National Autistic Society, which delivered a one-week training course to personal advisers on Asperger’s.
All advisers working with ESA claimants also receive advice from approved healthcare professionals about the impact of the customer’s health condition from the work-focused health-related assessment, which is completed in the early stage of a customer’s claim. The report will flag up whether the customer has a learning disability and its likely impact on them.
The Sainsbury Centre for Mental Health was involved in the development of the Jobcentre Plus adviser training. We shall also consult a range of other mental health charities, including Mencap, on training for advisers in the progression-to-work pathfinders. It is important that we do so.
What provisions are there for recognising certain disabilities, particularly mental disability, among minorities that are ashamed of mental disability and where having such disability is unlikely to be stated? What training is provided to enable anyone to recognise that?
I readily recognise the challenge involved in that. If we are dealing with ESA customers, there is a process of work-focused interviews and a work-focused health-related assessment, currently undertaken by Atos Healthcare on our behalf, whose professionals get training. However, it is important that people from the minority ethnic communities who have language or cultural difficulties in expressing themselves on these issues are accompanied by people who can support them through these processes. We need to be ever vigilant to make sure that the training recognises that some people who come in as customers may not be forthcoming because of cultural issues around their health condition. It is important that people have the skill to probe that.
I am conscious that I can assert from the Dispatch Box that we have lots of provisions and training and that we are going to engage with stakeholders to improve that but, as we all know, what actually matters is what happens in practice and not only getting the training in place but having proper monitoring of our staff and contract monitoring of our providers.
The noble Lord, Lord Rix, asked about the social care Green Paper. I regret that I am not in a position to say more than my colleague Phil Hope. The Department for Work and Pensions has been closely involved in its preparation, and I hope that it will see the light of day before we get to Report so that we can revisit it then.
The noble Lord also asked about specialist subcontractors. We encourage specialist subcontractors within a framework of strategic partnerships with prime contractors and later in our deliberations we will be discussing how that works. We are not seeking to squeeze out smaller providers, very much the contrary. The draft ESA regulations include a provision for failure to understand the requirements to be a good cause. However, I am happy to revisit the wording. I believe the provision is there; it is certainly intended to be there.
The noble Lord, Lord Ramsbotham, urged us to be joined up on this as a Government. As ever, he raises an important point. The impact assessment for the Bill has encompassed equality and child poverty as part of its approach, but there is always more that government can do to be joined up. We are dealing with work-related activity. There is no question of mandating anybody to a specific job. That is not the group that we are dealing with.
In moving his amendment, the noble Lord, Lord Rix, touched on the point that employers have a key role to play. We can do whatever we can to support people, but we need to make sure that we engage with employers so they have the benefit of people who have real talent and expertise that can brought to bear, which will help not only those individuals but the businesses the employers run.
The noble Lord, Lord Skelmersdale, asked about the numbers. We estimate that around 50,000 people claiming incapacity benefit or employment support allowance have a learning disability. This figure could be higher given that the estimate does not include those people whose learning disability is not listed as their main health condition. In addition, there are likely to be claimants who would still broadly be classed as having a learning disability, but who do not fall into the above category. That is what we have on the scale of the issue.
The noble Countess, Lady Mar, made an interesting point about engagement with animals, farms and so on. That would be an entirely reasonable work-related activity that could appear in somebody’s action plan. I do not know if it ever has, but it is just the sort of thing that work-related activity should be about: helping people to engage and building their confidence.
The noble Baroness, Lady Murphy, made the analogy that action plans are about care plans. They should be jointly owned, trying to ensure that people can progress. As all other noble Lords have said, training is absolutely key. My noble friend Lady Turner supported the amendment in similar terms. Where we might part is on the need for it to be in the Bill. However, we are, I hope, agreed upon the need to ensure that these issues are addressed and inculcated into the processes that we set in train, and that we are resourced to ensure that we can deliver on them.
That is probably not the full loaf that the noble Lord, Lord Rix, was seeking with his amendment, but he will acknowledge what we are trying to achieve. As ever, I am happy, together with colleagues, to continue to work with him on these matters.
I am grateful to all noble Lords who have spoken in support of the amendment, and to my noble friend Lord Ramsbotham, who, I am glad to say, escaped from the Iraq war long enough to add his support verbally. I am also extremely grateful to the Minister for a long and detailed response which, frankly, I will have to take away and read most carefully—probably with a magnifying glass because there are so many words in it. There was some comfort for me there.
The noble Lord, Lord Skelmersdale, and the noble Baroness, Lady Thomas, plugged Thrive. Mencap has for many years had Lufton College in Somerset, which trains people in animal welfare, horticulture, agriculture and so on. It hopes that, at the end of the training, which can be anything from two to four or five years, they will be able to take up work in that activity when they finally return home.
The training of the advisers in learning disability, and all the other problems, is a case of “How long is a piece of string?”. Truthfully, how good are the trainers going to be? How good are the trainees going to be at receiving what they are trained in? It is a difficult problem, and I hope that, in four or five years—if the Bill is eventually enacted and applies—we will not hear those dread words “lessons have been learnt” once again because things have gone horribly wrong.
During the passage of the Police and Criminal Evidence Act, all those years ago, the Kent police, who had a good film studio, made a DVD in co-operation with Mencap to show to all police officers who were likely to be involved with learning-disabled people. It was a great success and circulated to all police forces. I am not sure that one might not care to consider that device. I would be more than happy to step in front of a camera with some learning-disabled people and try to explain the problems and difficulties. It might be a practical help to the training of these people.
Nobody has yet mentioned the easy-read pamphlets that should be available for people with learning disabilities. Again, they should automatically be available. Easy-read versions of the actions of Bills, the Acts when they eventually come out, the regulations and so on are vital. It is not that they will exactly be the most popular reading, but they should be available.
Yes, that is true. I have said enough. The Minister has said a great deal and I do not want to add to the time we spend here this afternoon. I will study the Minster’s words tomorrow and the day after. I have a potential meeting with him on other matters concerning the Bill, so I will obviously bring up matters concerning the amendments as a result of what I read tomorrow. I beg leave to withdraw the amendment.
Amendment 54 withdrawn.
55: Clause 2, page 7, line 5, at end insert—
“( ) must be reasonable, having regard to whether the person has a condition with fluctuating signs and symptoms, and the nature of that condition;”
I shall also speak to Amendments 90 and 93. In doing so, I declare a non-pecuniary interest as chairman of Forward-ME and patron of a number of ME charities. The amendment moved by the noble Lord, Lord Rix, was about people who want to go to work and are sometimes not thought fit to do so. I want to discuss people who are deemed fit to go to work but who are not fit to do so. The Minister will understand from long experience why I am concerned about this particular group of people. I explained in some detail at Second Reading the problems that they have when encountering the benefits system.
ME, or CFS/ME as it is known by some, is a condition that affects approximately 250,000 people. Many are young and a majority are women. Some who developed the illness in their teenage years have never been able to work; they have not qualified for contribution-based benefits and are totally dependent on income support. I wish that I did not have to say it again, but I feel that I must. CFS/ME is recognised by the World Health Organisation and the Department of Health as a neurological disease of unknown aetiology. Some 5,000 peer-reviewed and published scientific papers indicating various aspects of the central nervous, immune and hormone systems that are affected go some way to explaining the fluctuating nature of the condition. Yet the view persists that this is a psychosomatic illness that is easily cured by a course of CBT and GET.
In 1994 I met Dr Aylwood when he was head of the Benefits Agency medical services. At that stage, he arranged for the doctors’ training manual to be rewritten to take into account people with fluctuating illnesses. Fifteen years on, the message has still not been received. I do not know whether the noble Lord has received a copy of the letter that I left for him yesterday. It is a letter from a lady called Jayne Thomas who wrote:
I am enclosing, for your information, a copy of an appeal letter that I have just sent to the Department of Work & Pensions/Job Centre as they seem to think that my condition has no impact on my ability to work”.
I have no compunction about reading this letter because it says exactly what I have been trying to say for years. This is her appeal letter:
“With reference to your decision to stop the above”—
her ESA claim—
“I am writing to appeal against this decision as I believe it is wrong and was stunned to see that you have given me 0 (ZERO) points for my claim.
Firstly, please note that you sent the ESA65 to the wrong address”—
we go back to the comments of the noble Lord, Lord Rix, earlier this week—
“(I advised you at the end of April and many times since of my new address), the letter advising your refusal to continue to pay me arrived at the right address at the top of this letter. Both these letters had the same date on them and I would appreciate it if all future correspondence has the right address (as at the top of this letter). This may explain why a cheque went missing at the beginning of May (I am still awaiting reimbursement for this missing cheque).
I would like to appeal on the following grounds;
1. At the medical assessment the Doctor from your contractor, ATOS, saw me for just 20 minutes and assured me that NO decision would be made to stop my ESA without full consultation with my GP/specialists who have been seeing me since my illness began. I spoke to my GP/Specialist yesterday and they confirm that they have had no correspondence with yourselves.
2. With reference to your ‘point scoring’, I disagree as follows;
a. Walking 0 points
I have explained to you that I am unable to walk any distance without exacerbating my condition and increasing the pain in legs. At times, I am unable to walk even short distances and a specialist only recently suggested that I may have to ask the school, where I take my son, that I get special permission to drive onto the school site to avoid the walk from the car to the school.
b. Standing & Sitting 0 points
Again, I have already explained that I cannot stand in one position for very long at all and if I sit down for too long, the pain in my legs becomes intolerable.
c. Bending & Kneeling 0 points
Again, I explained that I am totally unable to kneel or squat. When your Doctor at the assessment asked me to squat, I was unable to do this and he urged me to stop when he could see I was in pain.
d. Remaining Conscious 0 points
The extreme fatigue I suffer from can cause periods of debilitating tiredness.
e. Memory & Concentration 0 points
My condition causes short-term memory loss and if I push beyond my boundaries, concentration can become very difficult. If I try to read a novel, I am restricted to only a couple of pages where I can concentrate on the plot, if I push on I end up in pain (this was explained to your Doctor)
f. Starting Jobs & Keeping on with them AND Doing & Finishing Jobs 0 points
I have explained to you that I am unable to start some tasks, let alone finish them. The debilitating fatigue and pain I suffer from can make performing a task such a cooking a meal very difficult and I quite often rely on my husband for this as I do for other household tasks”.
She then says—and this is significant:
“By refusing to continue giving me benefit, you are saying that I am fit for work. I had held down a very responsible job, which I thoroughly enjoyed, for 10 years until I was dismissed on grounds of ill health on 27 February 2009. Both my employer and myself made every effort to get me back to work last year. I entered a long period of rehabilitation with them from July—the end of September where I gradually returned to work. I went back to work properly at the end of September but was unfortunately only able to sustain this return for 6 weeks. At this point, I suffered a terrible relapse which left me unable to cope with the most basic of tasks”.
I will not go on. I think that I have said enough to make it clear what is going on. I am aware that benefits claimants who have CFS/ME, when called for a medical examination or interview, will do their best to perform the tasks given to them. They will have rested for the day prior to their encounter. They may find it difficult to describe their illness or what they are feeling at the time because they have recognised cognitive problems. They may omit to reveal important factors because they are tired after travel. They will often be able to do what is asked of them physically but very soon afterwards they will collapse from their exertions and may take several days to recover.
I know that the noble Lord is aware of this. However, unless all DWP staff, including the agency medical practitioners and the contractors, are convinced that ME/CFS sufferers are not inadequate attention seekers looking for sympathy, and are trained and made thoroughly aware of the nature of this illness, there is a risk that people with ME/CFS are going to be harassed and distressed and made more sick than they already are. Who will be legally responsible if a claimant complies with instructions for fear of losing benefits and is made seriously or irreversibly more ill?
I have come across none who are not eager to be able to lead a normal life. They desperately want to be able to rejoin society and to become financially independent. Most have tried repeatedly to return to a normal life only to suffer repeated setbacks. This is why they are so strident in their requests to Her Majesty’s Government for funding for biomedical, rather than psychiatric, research into their illness. At the moment there is no definite cause or cure. This is not a reason to penalise sufferers or even to frighten them with threats of benefit cuts if they do not comply. I am not suggesting that everyone in this group should be left to moulder in their illness and not be offered assistance in an attempt to resume a normal life. I am asking that they are not penalised if they fail to meet the expectations of their adviser or cannot maintain a consistent work pattern.
There are a number of other illnesses in this group, such as irritable bowel syndrome, fibromyalgia and multiple chemical sensitivity, which equally should be recognised and their sufferers treated with sensitivity. I beg to move.
We are assured at every turn that those with fluctuating health conditions, such as ME, MS, rheumatoid arthritis and mental health problems, who are in the employment group of ESA, and therefore in the progression-to-work group, will be considered sympathetically by Jobcentre Plus staff before being directed to work-related activity. The now former Minister in the other place said that,
“a person’s health is always considered, so there is no need for that to be prescribed in the Bill”.—[Official Report, Commons, Welfare Reform Bill Committee, 24/2/09; col. 140.]
However, that is not the experience of many people with fluctuating conditions, as the noble Countess, Lady Mar, has so powerfully said today and on many occasions. It is all too possible for someone who is experiencing a good day when they see either a disability benefits adviser or a personal adviser for their condition not to be recognised adequately. The adviser should have a report following a work-related health assessment about a person’s condition, which indicates whether it is a fluctuating condition. I would be interested to hear if this is always the case. However, this assessment would not include any report from a person’s GP or consultant which might confirm the fluctuating nature of the condition. I wonder why that is so. It is a matter of public record that the new Secretary of State for Work and Pensions has suffered from ME. We therefore hope that she will be sympathetic to this point, if not to the wording of the amendment.
As a disability contact person in the department of politics at the University of York, I have found that it is impossible even for the most sympathetic supervisor to know when their students are going through a bad phase. As a matter of policy, the university makes it the responsibility of the teachers, not the taught, to notice when their students are not doing well. The university has a whole department devoted to dealing with the problems that their students face. If intelligent, articulate students are not made responsible for saying that they have problems, and if it takes a good year for any of their problems to be dealt with, how can an adviser in one meeting be able to cope with problems which are not easily soluble?
I am going to have to put my slightly provocative hat on. It occurs to me that the worse the level of training, the greater the level of appeals, which I think is the main thought behind the amendment proposed by the noble Countess, Lady Mar. I make no apology for opening my few remarks on the noble Countess’s amendment by saying that it is right that if we are going to have individual action plans, we must make sure that they take account of the individual. As the noble Countess has said, if a person suffers from a fluctuating condition, it will have a very different impact on their ability to undertake that obligation of work-related activity than if they had no condition at all, or different even from someone who suffers from a consistent and predictable condition.
If the plans are to be as individually tailored, as the Minister says, we must assume that such fluctuating symptoms will be taken into account. But the basic question is how. Who will take this into account? We heard a horrifying story from the fairly long letter which the noble Countess read out. It is clear that the individual or individuals conducting the computerised assessments that we learnt about during our discussions of the new employment and support allowance simply were not up to the job. That may not be entirely their fault. It may be that the individual in question was more able at that moment to carry out the individual tests that are required than she would be if she went home.
Again, I have to declare an interest in that I have a son-in-law with severe ME. He finds that at moments he is able to do quite normal things. But then, a few hours later, he will collapse for another two, three, four or five days. If you have an assessment in a good period, it is extremely difficult—this was the point made by the noble Baroness, Lady Ashfar—to come to a realistic conclusion of what may happen in the rest of the week or month. How you train people to have proper observation or realisation of that fact is beyond me. But there must be better brains than mine around the system who could get to the bottom of it. Until we do, all hope for the people whom the noble Countess has been talking about is lost.
Amendment 90 is the significant one in this group, referring to the training of the provider to recognise symptoms, which is what I have been trying to explain in a nutshell. I expect that we shall have a good deal more to say on this matter as there are more amendments on the horizon dealing with it. The training of staff who will operate these schemes is the key. Putting on my pseudo-civil servant hat, I am afraid that this amendment is probably in the wrong part of the Bill. It is so fundamental that it should be there well before we get to the matter of directions. The Minister will probably have something to say about that. I certainly understand all the points that have been made this afternoon. I wish that I had a golden rod to solve them, but I am afraid that I have not.
I have an extra question for the Minister. I was struck, as always, by the noble Countess, Lady Mar, and her description of the problems of chronic fatigue syndrome and ME. One of the problems that she highlighted was the poor approach by the medical adviser who rated the condition. It is a long-standing difficulty that the doctors doing the assessments have been rather the creatures controlling the gateway to money. They are not always sensitive to mental health problems, the type of syndromes described by the noble Countess, or the more sophisticated and difficult medical conditions. They are not well trained to assess them.
We have the same problem with people looking for benefits such as attendance allowance, where little thought is given to the fluctuating nature of dementia, for example. I am not sure where this comes in the Bill but I wanted to add the question: are we sure that the medical advisers are also properly trained?
Like other queries that have been thrown at my noble friend over the past few Committee days, this is an insoluble problem. On the one hand, people with fluctuating disabilities may want to enter the world of work, and for that they must remain attached to the labour market. However, there is a further dimension because of the nature of their illness. It is not just that personal advisers can inevitably respond only to what is presented to them during the half-hour interview when we know that the condition may change within the day, as the noble Lord, Lord Skelmersdale, said, or within the week, and so on. The doctor making the assessment may be poorly trained but an employer of someone with a fluctuating condition can face a difficult situation, too. Will employers come up against the Disability Discrimination Act when they have an employee whose patterns of attendance are so unpredictable in a job which requires reliability of contact or interfacing with the public?
This is a huge problem that has troubled the DWP, and the DSS before that, for 15 years. I know that it is almost impossible, and I am referring not only to MS, but a range of conditions, including depression and so on, which have cyclical patterns. It is not just a problem for the adviser or the doctor; it is going to be a problem for the future employer. Therefore, one thing that a specialist adviser for the department may be able to do—I do not know, because this is so difficult—is to think about the situation from the point of view of the employer and think about work-related plans and activity and preparation for work that reflects not just the condition of the individual but makes that individual have a chance in the job market. Otherwise, all that investment will be as naught.
We are asking a huge job of the personal adviser: not only to have a very sensitive and skilled interviewing capacity, like the doctors, but also to understand the needs that an employer may have for that person, who may be wishing but worried, apprehensive and frightened about going back into the labour market. We have done a lot about linking rules and all that sort of stuff, but I wonder whether my noble friend could reassure us that personal advisers will not just be given extra skills to understand and respond to the needs of the employee but are actually thinking about how the employer would respond—and, frankly, not simply sack the employee at the first available opportunity.
Sure. But I mean the DWP medical team uses a computer-aided assessment to make a final assessment of the individual’s problems. This is now up and running. Can the Minister tell me whether the situation has got any better? When we last discussed the matter within the context of the first Welfare Reform Bill, this was going to be the all-singing, all-dancing thing that would cure everything. Has it?
I thank the noble Countess for these amendments. She raises again an important issue that she has campaigned about for a long time. I have received a copy of the letter, but I hope she will forgive me for not having had a chance to consider it in any detail. It would not be possible for me to comment on a specific case, but I shall make sure that the letter is passed on to the district manager and given in evidence to those looking at the assessment of the WCA.
I agree with the noble Countess that it is extremely important that, when issuing directions to undertake work-related activities, personal advisers must have regard to a customer’s medical condition. That would include taking into account whether the condition is likely to fluctuate and the impact that that may have on the customer’s ability to carry out the direction. They must, of course, have received adequate training to enable them to do that. It may help to reassure the noble Countess if I outline the safeguards built into the system to protect the progression-to-work customers with fluctuating health conditions.
Amendment 90 relates specifically to training of personal advisers. As we discussed under the previous amendment, they are key to the successful delivery of this model. We will develop a workforce development strategy to work through the implications of the adviser role, which will also enable us to develop, with the help of our stakeholders, comprehensive additional training material for personal advisers to enhance the knowledge and skills necessary to deliver this more personalised approach and ensure that they do not ask too much of an individual. However, it is already the case that Jobcentre Plus pathways advisers receive training on a range of mild-to-moderate health conditions. In provider-led pathways areas, advisers are also trained on a range of health conditions and work with a range of specialist organisations on which pathways advisers can seek advice and support.
Jobcentre Plus personal advisers are able to seek advice from specialist disability employment advisers and work psychologists with regard to customers with complex needs. If they feel it is appropriate, advisers may refer customers with complex conditions to DEAs and work psychologists, as we have just discussed, for additional advice and support.
Turning to Amendment 93, the work capability assessment has been designed to take better account of these fluctuating conditions. In the face-to-face assessment, the healthcare professional carrying out the WCA and the work-focused health-related assessment should also analyse an individual’s functional capability over time. It is not a snapshot of a person’s condition on the day of assessment.
During the early stages of their claim, an ESA customer will undergo a work-focused health-related assessment completed by a healthcare professional. A report of the work-focused health-related assessment will be produced and sent to the customer’s personal adviser. The report will flag up whether the customer’s health condition may fluctuate and the impact that this is likely to have on the customer.
I assure noble Lords that the power to direct progression-to-work customers to a specific activity will be used only in a very small minority of cases. Advisers will always encourage, persuade and support people into activity they genuinely feel is necessary.
This brings me to Amendment 55. As stated in Clauses 2 and 8, any direction to undertake an activity must be reasonable and have regard to the person’s circumstances. Hence, any direction to undertake an activity by the personal adviser must be appropriate to the customer’s abilities and circumstances. That would include taking into account any fluctuating health condition that the customer may have.
If, for any reason, the customer was directed into an activity which they felt was inappropriate the customer could ask for the direction to be reconsidered and it could then be varied or revoked. If the customer does not comply with the requirement to undertake an activity because they were not able to do so due to the fluctuating nature of their condition, they will be able to raise this as good cause for their failure to comply. This will be covered in regulations.
It might be helpful—I am conscious—
Indeed, the purpose of the process is to identify and bag up these issues right at the start of the process of an ESA claim. Clearly issues might arise and mistakes might be made. Notwithstanding recognition of the fluctuating nature of the condition, a direction may be made that somebody thought was consistent with that, and it proves not to be. These things will happen.
I am conscious that I am talking for too long, as noble Lords have indicated, but I want to make sure that I get something on the record in relation to this about the evidence-gathering procedure. When an individual makes a claim for ESA, this is supported by medical certification from their GP to confirm that the individual has a health condition or disability. That is the starting point. Individuals are provided with a questionnaire in which they detail their functional capability. If this indicates that an individual is likely to be in the support group or to be treated as having limited capability for work—for example, as a hospital in-patient or currently receiving a course of treatment—then Atos will procure evidence either from the individual’s GP or the relevant healthcare provider to confirm this, and the evidence is treated as a medical fact. If an individual is called to a face-to-face assessment then they are able to bring with them any relevant evidence to support their claim for benefit. That may include a report from their GP or specialist. They are also encouraged to bring a companion if they want to.
I say to the noble Baroness, Lady Murphy, that the role of Atos doctors is not meant to be as keepers of the gateway to funds. That is not their role and I hope that it is not in practice.
The WCA assesses an individual’s functional capability as a result of their condition. The healthcare professionals carrying out the assessments are therefore trained in disability medicine in order to access that capability. They also receive ongoing medical education in order to remain up to speed with developments in the field of disability medicine. This includes training on the need to inquire about variability in an individual’s capability, both day to day and in the longer term. The criteria by which an individual is assessed require that they be able to carry out an activity reliably and repeatedly for the majority of the time. If they are unable to do so, they are considered unable to carry it out at all. So fluctuations, irrespective of their frequency and duration, are therefore reflected by the practitioner providing an opinion based on the individual’s capability for the majority of the time.
Each practitioner employed by Atos Healthcare to carry out work-capability assessments is approved by the chief medical adviser to the department. Their continued approval is dependent upon ongoing demonstration that the work being carried out meets a satisfactory standard. This is done through regular monitoring prior to approval for new entrants, and continuing random audits by the medical services quality monitoring and auditing system. Approval to do these examinations could be removed if their work does not continue to be of the required standard.
Does the Minister recall a bit of a scandal in the Midlands three or four years ago, when a doctor said that the contractor was paying bonuses to people for turning people away from benefits? Will the Minister confirm that any contract that Her Majesty’s Government have with contractors will cut out any question of doctors getting bonuses for turning people away? That immediately causes problems.
I sincerely hope that that is never a contract term, but I would need to get formal advice that it is not. I am happy to write to the noble Countess on that, but to have it as a requirement would seem perverse and run quite contrary to what we are trying to do.
I think we are straining the contract terms and its construction, which is currently beyond my brief. However, the principle that Atos Healthcare professionals should not be remunerated by reference to somehow keeping people from the benefits system must be absolutely right. If I were able to read this Box note, I might be able to give the noble Countess even greater assurance. Perhaps I will be able to by the time I have finished. It looks as though I am right in principle, but I will follow up.
I had not quite finished. The department is currently carrying out a review of the work-capability assessment. The purpose of the review is to ensure that the WCA is identifying individuals for the correct benefits. A group of experts in the field of physical disability, mental function and occupational health are undertaking analysis of WCA cases in order to evaluate the effectiveness of the assessment in identifying individuals who are incapable of work-related activity, who are currently unfit for work but would benefit from support and eventually return to work, and those who, in spite of their condition, are fit to continue work at that time. A broad range of conditions has been included in the cases analysed, including those that are variable or fluctuating.
Picking up on my noble friend’s points, representatives from both employers and disability rights groups are also involved in the review and have contributed to discussion around the descriptors themselves, their applicability and appropriateness. There is a statutory requirement to carry out an independent review of the assessment every year for the first five years of its running. This will provide further opportunity to evaluate the assessment and its effectiveness in appropriately identifying fluctuating conditions. I will make a point of referring the letter that the noble Countess sent to me to whoever is running that assessment. I do not know the extent to which it could be included, but they should be made aware of its content.
The noble Lord, Lord Skelmersdale, asked about computer-aided decision-making. I think he is referring to the LiMA system. We are reviewing it as part of our review of the work capability assessment.
The noble Baroness, Lady Hollis, focused on how advisers will help customers manage conditions in employment. Condition management programmes are available to help customers with a range of health conditions and focus on learning how to manage the condition in work. I realise that that still focuses on the individual, not the employer. Off the top of my head, I do not know the extent to which access to work and other such programmes are brought to bear, but I will have a look at that.
I know that in this debate, like many we have had in Committee, we have asserted that this is the system, this is the training and these are the skills that the advisers have, and we perhaps have a mismatch between that and individual experiences. There is no easy way around that. There is no easy way of squaring that in this Committee, other than keeping engagement focused on the outcomes that our programme is meant to deliver. Notwithstanding that, I hope that what I have said has provided some reassurance that safeguards are built into the system that will sufficiently protect customers with fluctuating health conditions. With that in mind, I urge the noble Countess to withdraw the amendment.
I have just heard the noble Baroness, Lady Hollis, say that 60 per cent are successful.
I am grateful to the Minister and to all noble Lords who have taken part in this debate for the support that I have had. Is it the actor Richard Wilson who says, “I don’t believe it!”? After 15 years of bitter experience, I am tempted to say that. However, I look forward with hope—I am not a pessimist—to seeing this working and serving these people well. They have had such a rough time over all these years. I will read what the Minister said. I beg leave to withdraw the amendment.
Amendment 55 withdrawn.
Amendment 56 not moved.
57: Clause 2, page 7, line 9, at end insert—
“( ) may not be in regard to the use of specific types of childcare, or particular childcare providers”
Despite the fact that the noble Baroness, Lady Meacher, has decided to not to move the amendment, and even though it has been partially spoken to, it is perfectly within my rights, since it is on the Marshalled List, to move it. I would not be taking this action if I had not been passed the most disturbing letter. Since we are now talking about the reason for directions, it is important that I refer to it.
I did not move the amendment because I felt that we had rehearsed the arguments in relation to it fully on a previous Committee day and I did not want to waste the time of your Lordships by re-rehearsing them. I did not feel that there was anything material that one could add to our previous, full debate.
I understand that, but had I not been handed the letter, in only the past 10 minutes or so, I would not have dared to take this step. We are talking about directions in relation to childcare. It is true that we fully deployed the arguments on childcare during our earlier debates, occasioned not only by the noble Baroness, Lady Meacher, but also by the noble Baroness, Lady Thomas, and—dare I say it?—me, on the first amendment that we discussed on Monday last week. The letter to which I refer is about a mother on income support who was told to attend a compulsory work-focused group information session with up to 15 other single mothers at a particular time on a particular day. The letter—I shall not read out all of it—states:
“I am still breastfeeding. My son is very active and only just learning to walk. Whilst he does eat some solids, 80-90% of his food intake is still breastmilk, about half of which is consumed in the mornings between 6am to noon. He is thriving on it … Because I would rather not disrupt his eating pattern at this stage”—
a fair cause, as I am sure the Minister would agree—
“I called the agency to change the time of the Session. I was told there was no flexibility, only the date could be changed. I was then informed there is a crèche on the premises. Because my son feeds on and off, particularly in the morning, this is unlikely to be of much use to me. He is unlikely to stay in the crèche anyway, so I will have to keep him with me, which will be disruptive to the group”.
If this good lady’s supposition is true, it would be a cause for a direction, would it not? She has been informed that there is no opportunity to change the time or date of her work-focused interview. That must be wrong. I shall of course send the Minister the full letter. I should be very grateful for his consideration of this matter, in relation particularly to directions, because that is what we are talking about. I beg to move.
As the noble Baroness, Lady Meacher, said, we have ranged over this issue extensively. If the noble Lord will allow, I shall respond just very briefly to his reference to the letter. Obviously, without sight of the letter, it is difficult to provide any comprehensive comment on it and, in any event, it would be inappropriate to do so on an individual case. I presume that the child involved is under the age of three, so one is talking about conditionality around work-focused interviews and not work-related activity.
Attending a work-focused interview is mandatory, but a lone parent can give good cause for not attending. On the face of it, there may well be good cause in the circumstances to which the noble Lord referred, but it would be quite wrong of me to offer a judgment on that without the detailed knowledge and he would not expect me to do that. But I am very happy to follow up on that point outside the Committee.
I apologise for detaining the Committee even for these five minutes, but I thought I should draw this particularly germane fact to the attention of the Minister rather more forcefully than just sending a copy of a letter, which I do moderately regularly on all sorts of subjects, as the Minister will acknowledge. I anticipated that I would get absolutely nowhere today for the very reason that the Minister has fairly given. But, as I say, I make no apology. I beg leave to withdraw the amendment.
Amendment 57 withdrawn.
58: Clause 2, page 7, line 9, at end insert—
“( ) may not require independent job search;( ) may not require participation in a work trial;( ) may not require undertaking voluntary work;( ) may not require part-time working”
Amendment 58 is intended to probe the Government’s intentions as to what claimants are expected to do or not do as part of work-related activity if they are in the progression-to-work group. The boundaries between the progression-to-work group and the work-ready group seem to be rather blurred. For those claimants who need a lot of help and support before they are ready to look for work it could be bewildering and confusing to conflate the two groups. Professor Gregg acknowledged that claimants’ routes back to work varied a lot. He gave five examples of work-related activity that might be considered for the progression-to-work group. The first three are not contentious: that is, to stabilise a claimant’s own or family situation, perhaps taking advice about debt or a housing problem; to manage their health for work; and to improve their skills for work. However, the next two seem to contradict having the progression-to-work group and the work-ready group as separate groups. They are to look for work and to prepare for full-time employment. All that we seek with this amendment is clarification that the last two activities would not be directed with an action plan for a progression-to-work claimant.
Finally, I must again protest about volunteering being one of the suggestions for work-related activity which could be subject to a sanction. On Monday, when I raised this subject, the Minister said that if volunteering was part of an action plan, and was not fulfilled, the claimant could be sanctioned. The Minister said that I was “pressing for particular terminology”. I do not mind what it is called. Perhaps “community work” or “community activity” would be better. But to call such activity “voluntary work”, which could be sanctioned if not undertaken, is quite ridiculous, even if it is part of an action plan. I beg to move.
I was startled to see Amendment 58. The four activities that it seeks to rule out—independent job searches, participation in a work trial, undertaking voluntary work or part-time working—are all rather good ideas, are they not? All those activities might, in their own way, make positive contributions to increasing a person’s readiness and suitability to entering the job market. However, as always, I listened with interest to the noble Baroness and accept that the amendment is not as severe as perhaps it appears on the Marshalled List.
An independent job search should perhaps not be required, as it might allow an unscrupulous personal adviser to offload his own work on to a hapless jobseeker. I presume that the idea is for the adviser to work in tandem with the participant as a guide or mentor; however, that should not mean that the participant should sit back and have everything done for him. Would it not be better to say that while independent job searches should not always and immediately be required, it might nevertheless be encouraged and so should not be precluded altogether? I am still less convinced that a person should not be required to work in a work trial. Even though it is a trial, it might be a very useful learning experience, which could be put to good use later; learning basic skills such as dressing smartly and timekeeping would help to pave the way to a more permanent position.
I hope that to require voluntary work is oxymoronic, but if it was used as another stepping stone—why not? If there are no paid jobs immediately available, might a stint in the voluntary sector not be useful for the same aforesaid reasons? The same is even truer of the fourth item, part-time work, which is something that very many people would welcome. I accept the point about requiring people to do something; it is a very coercive activity. However, to be effective, action plans need to be flexible and take into account the circumstances of the individual—hence, I have tabled the amendments in the group starting Amendment 45, to which I may have referred too many times—but also the market conditions, and to be prepared to take advantage of the opportunities available at the time. I do not agree that we should rule out options, which could render these plans very inflexible and therefore less likely to succeed.
As for volunteering, many people up and down this country who are not in a position of being benefit claimants or potential benefit claimants use their time very wisely and helpfully for the country as a whole by volunteering. Your Lordships will have heard me say before that for 10 years I was chairman of the Stroke Association, which, like many other charities—medical ones but others as well—such as BCTV, although I cannot remember what that stands for, rely to a great extent on unpaid employees. I see absolutely nothing wrong with that in general terms or in relation to this Bill.
I support the amendment to the extent that I, too, am bewildered about conflating these two completely different statuses because of the fear that that might engender. I would be grateful if the Minister could clarify whether the level of sanction might be different. I can understand that it might be appropriate to have similar options that might be applied to people in different circumstances, but if I were a social worker working with these people I would want to know clearly what the difference is for my client between being on a progression-to-work route and being on the work-ready group. There is a need for clarity. I am grateful to the noble Baroness for moving the amendment and look forward to the Minister’s response.
The noble Lord, Lord Skelmersdale, said something to the effect that claimants should not require people to hold their hands, but in the first case study that we were sent the adviser took the individual to Marks and Spencer and even stayed with her there for some time. In the second case study, it was a similar set-up. So it looks as though the case workers will be expected on some occasions to stay with their clients.
I am sorry to repeat what I always say, but it worries me that this distinction is not made. Women looking after children are in full-time employment and cannot be seen as jobseekers or job-ready. If the provision of reasonableness is understood, we cannot expect them to be both full-time mothers and on progression to work, unless we provide the kind of jobs that recognise their specific skills of negotiation of care. I am sorry to say that, as yet, I have not come across many employers who do.
Perhaps I can deal with the last point first. The suggestion that mothers cannot effectively be full-time mothers and involved in a progression-to-work group is not something that we accept, nor is it part of the structure of the Bill. To recap, the thrust of the proposals is to identify people who are work-ready. That certainly would not include a lone parent, for example, whose youngest child was under seven. But we shall test through a pathfinder a requirement for work-related activity, subject to safeguards when the youngest child is between three and six. We are doing that for the reasons that we discussed extensively. Work is important, as is the impact on children of parents being in work, as well as family circumstances being better out of poverty.
That is not to diminish or fail to recognise the huge responsibilities that go with parenting, particularly for lone parents. I strongly make the point that that should not preclude the engagement, subject to protections, of people in the labour market.
Does that not make the participatory nature of decision-making rather complex? Is the decision made by the mother whether she is able to take on new or additional work, or is it is prescribed by the Bill? I am slightly worried about where the participation comes in.
If a lone parent were in the progression-to-work group, with the youngest child aged three or four, the process would be through a work-focused interview with Jobcentre Plus and engagement in drawing up and agreeing co-operatively an action plan. There would then be a requirement to undertake that action plan in relation to work-related activity. The key is what is in the action plan, which is a powerful opportunity for the individual to engage and explain what she believes she can and cannot do. That is the co-operative process involved. We will not be rolling it out until it has been tested in pathfinders.
The progression-to-work approach is based on the principle that most working-age benefit recipients should be taking active steps on the journey back to work, as I have just explained. We are confident that, for the vast majority, this mix of support and encouragement will prove a positive process that helps people to improve their employment prospects.
Before turning to the amendment in detail, I want to provide a clear assurance to noble Lords that those in the progression-to-work group will not be directed to look for or to start work but rather to undertake key work-related activities that will help them to prepare for either full-time or part-time work. Noble Lords will be aware that some customers will be closer to the labour market than others and may want to enter work more quickly. Others may want to undertake more limited activity, waiting until their child is older before moving into paid work. To accommodate that, we do not intend to have a specific definition of what work-related activity an individual should undertake. Rather, we want to establish the principle that everyone in the progression-to-work group is on an active journey towards work but keep the specific steps open for claimants and advisers to agree.
As a result, parents who are eager to enter work, because they have acquired the skills necessary to do so and feel the time is right for them, may agree with an adviser that activities such as participation in voluntary work or work trials would be extremely beneficial in helping them move to that next step and have that accepted on their action plan as work-related activity. In such a situation, we would not want to deny parents the opportunity to do these activities—I think that was the point made by the noble Lord, Lord Skelmersdale—especially when by entering work they are not only moving their household out of poverty but also improving their life chances. Once recorded on the action plan, these activities would become a requirement and parents would need to show at future meetings that they had undertaken the activity and met the requirement. Failure to meet the requirements without good cause might result in a sanction being imposed because the action plan can always be renegotiated, as long as other agreed activities are suggested.
Although this amendment reinforces our commitment that work-related activity will not include applying for, or being required to enter, work, it would remove some categories that could be counted as work-related activity by an adviser and benefit the individual concerned. That is why we are unable to accept it.
I have just received a letter from a mother who is on income support and has an 11 month-old son. She writes:
“I am being forced to attend a compulsory work-focused group information session with up to 15 other single mothers this Friday morning at 9.45. If I don’t go, I face losing my benefits”.
Later, she writes that, in order to cope with her domestic duties, she tried to call the agency to change the session, but it refused.
I apologise for interrupting the noble Baroness. I think that is the same letter that the noble Lord, Lord Skelmersdale, referred to in the debate on the earlier amendment. I hope the noble Baroness will understand that it would be impossible to comment on a specific case. I am happy to take it up after the Committee and am grateful to her for raising the matter.
I am grateful for the support I have had from the noble Baronesses, Lady Afshar and Lady Meacher. This little debate has highlighted that there is confusion between what is work-related activity that the progression-to-work people will be expected to do and the work-ready people. The noble Lord, Lord Skelmersdale, talked about part-time work being fine. We are surely talking about a part-time work trial. Part-time work for progression-to-work people sounds as though it is a permanent situation.
The noble Lord seemed to be in favour of part-time working for the progression-to-work group. Part-time working is just working, but only part-time. I would have thought that a part-time work trial was different. I presume that what work-related activity will be will be spelled out in regulations. Will we see them later, or are we going to have any more detail?
As I indicated when I responded initially, we do not want to be too prescriptive about what work-related activity entails, for the obvious reason that it very much depends upon the personal circumstances of the individuals involved and the iterative process of engagement between the jobcentre adviser and the individual in constructing the action plan; so there will be a framework. I tried to make it clear that there will be no requirement to enter work or to undertake work. Should people wish to agree that that is what they want to do because they want to fast-track themselves through the work-related activity, we would be wrong to deny them that choice.
That is something that we can all agree on. If it is all by agreement, I have no problem with any of it. The difficulty is that someone in the progression-to-work group may find that they are being expected to undertake part-time work which they are not ready for.
I come back to this problem about the terminology of “voluntary work”. I spoke to my noble friend Lady Neuberger, who has just written a report about volunteering for the Government, about this. She is horrified that volunteering could be part of a requirement. I well understand that it could be a very desirable activity indeed. For example, it might be suggested that someone in the progression-to-work group works in a charity shop for a few days a week. That would be a nice thing; I would love to do it myself, as it would be an interesting thing to do. However, if it is mandated, it is no longer voluntary work. There is an element of compulsion there, so I do not like the phrase “voluntary work” in this context.
To be absolutely clear, there can be no requirement imposed upon an individual in the progression-to-work group to undertake work or part-time work. However, if they wished to do that and have it as part of their action plan, it could ultimately lead to some mandatory action in relation to volunteering or working in the voluntary sector. However, there can be no compulsion placed upon people to enter work or undertake part-time work if they are in the progression-to-work group.
I am grateful for that elucidation, which is really what I wanted to hear. I thought that it was not clear in Professor Gregg’s list of those five items that I read out. In light of what the Minister has said, I beg leave to withdraw the amendment.
Amendment 58 withdrawn.
Amendment 59 not moved.
60: Clause 2, page 7, line 15, after first “of,” insert “or contractors to,”
This is alarming group of amendments: Amendments 60, 61, 64, 65, 151 to 153, 155 and 155A; it is also appropriate for me to speak to the question of whether Clause 25 shall stand part of the Bill, even at this early stage. However, given the somewhat quizzical reaction of the noble Baroness, Lady Meacher, to the first amendment after our break, I reserve the right to come back to the question of whether Clause 25 shall stand part of the Bill when we actually reach it.
We have now reached the point in the Bill on which the whole of the welfare-to-work provision will stand or fall. I confess that the amendment is not the most elegant that I have ever produced, not least because the Minister will tell me that,
“such person (if any) as the Secretary of State may authorise”,
includes contractors. My first concern is what on earth the “if any” is doing there. We all know that contractors are going to be used as personal advisers. No matter what training they are given, they will only have the sketchiest knowledge of, say, stroke, mental illness, learning disabilities or many of the other disabilities that rightly concern not only the noble Lord, Lord Rix, but all Members of the Committee. I hope, too, that they will have no personal knowledge of drug addiction or even the effects of occasional drug use. This, however, is for another debate on Clause 9.
We know, because the Minister told us last week, that there is a list of preferred bidders on the DWP website. I was going to say “belatedly”, due to the article in the Financial Times, but perhaps that is not fair; I am not sure on what date the list of preferred bidders got on to the DWP website. That is a tease—I do not expect a reaction. The firms involved are mostly big ones which contract for all sorts of government projects; I really cannot believe that they will have any more knowledge of the problems that beset individual long-term JSA claimants than Jobcentre Plus personal advisers. Indeed, on the whole, I would expect them to have less. They will therefore have to subcontract, which raises the question whether the head contracts will have any reference to the sort of subcontractors that are likely to be appropriate. I hope that the pilots will cover the full range of problems likely to be found, but, by definition, there can be no guarantee of this.
I have remarked before, and have no hesitation in repeating again—and again if necessary—that these contracts are to be front-end loaded. The major part of the money to be paid to the contractor comes with his engagement with a number of long-term unemployed claimants, presumably in a particular geographical area. I am guessing now what that will look like. I am grateful to the Minister—or at least I assume I am grateful to him; I am certainly grateful to someone in the department, who had a little meeting with me yesterday on the subject of pilots. That was volunteered by the Minister or by someone in the department and was extremely useful. I hope that it will result in some sort of written guidance on what is proposed sometime next week, which I am sure it would be appropriate to circulate to other Members of the Committee. But as far as one can guess from the list of preferred bidders, we are talking about geographical areas. Incidentally, I can find the word “geographical” applied to the word “area” nowhere in the Bill, although references are made in the notes on clauses. Perhaps the Minister could explain, not least because “area” could mean anything, such as “area of expertise”, for example.
I return to the point about front-end loading. If I was a conspiracy theorist, which I hope that your Lordships do not think I am, I might suggest that the whole objective of new Section 2G of the Social Security Administration Act was to get the long-term unemployed out of the hair of Jobcentre Plus. That would be one possibility; the other, which I hope pertains, is that personal advisers within Jobcentre Plus need extra help in getting the long-term unemployed closer to the job market and, one hopes, into full-time work. If the contractor succeeds in this, which after all is the ultimate objective, they should be paid more than the 20 per cent that is, I believe, currently on offer. Should an incoming Government want to change this at any time, it would appear that the Secretary of State could cancel the contract at any time by virtue of new subsection (6)(b). If that happens, will compensation be payable? Will it say so in the contract? That is the reason for Amendment 65.
I assume that the contracts have break points at which it would be more appropriate to renegotiate them, hence Amendment 61. That brings me to my next question. What happens regarding the personal adviser in Jobcentre Plus? Does the contractor produce a personal adviser of its own? That seems to me the obvious scenario. If so, what is the relationship between the two advisers? It is already clear that action plans are to be contracted out; indeed, the only thing that, rightly, cannot be, is sanctions. If there is a dispute between the two advisers, how can the claimant choose who to listen to? How is the claimant to know that they are in a contracted-out regime? I hope that the Jobcentre Plus adviser will tell them that they will have to agree and follow a new action plan promoted by someone working for the contactor. We really need to know who is in control of this situation.
Amendment 61 is purely a drafting amendment. Amendments 155 and 155A are also drafting amendments, but surely any mention of the Secretary of State includes authorised persons as equating to direct employees like officials in jobcentres. I am sure that other noble Lords will have a whole raft of questions that they want to put to the Minister on contracting out. As I said, it is such a vital part of the whole scheme of Clauses 1 and 2. I shall leave it there and hope that I have opened up the debate about the whole of new Section 2G. I beg to move.
I have some difficulty with these amendments, except for the clause stand part. My noble friend will not be surprised to hear that the TUC is totally opposed to the contracting out of JCP functions. It has pointed out on innumerable occasions that privatised employment programmes do not outperform those provided by Jobcentre Plus, and gives a number of examples.
It also makes the strong point that contracting out, which is currently undertaken by Jobcentre Plus, may eventually undermine the Government’s ability to intervene directly in the labour market. That is an important point in view of the unemployment that we now face throughout the economy. One of the ways in which a number of us feel that unemployment can be dealt with effectively is through intervention by the Government in appropriate situations to try to ensure that employment is maintained for a large part of the workforce.
The current negotiations with providers about possible new contracting-out arrangements to take account of the sudden increase in unemployment indicate just how slow and unresponsive a contact-based system can be. I feel inclined to support the noble Lord, Lord Skelmersdale, if he were to press his motion to oppose the Question that Clause 25 should stand part of the Bill. Whether it is on the same basis, I do not know; I am not certain that he would oppose it on quite the same grounds as me. I oppose contracting out what should be a government service.
I, too, support the amendment—particularly what the noble Baroness, Lady Turner, said. This is a delicate subject, as being unemployed is not funny. It needs to be handled sensitively and flexibly, and the Government need to have full control of it. Having been a civil servant, I feel for them. We should be employing civil servants rather than paying over the odds for contractors. We might get it cheaply at the beginning, but not necessarily at the end because of the quality of the work and number of appeals that arise. I firmly believe that it should be kept in-house and that the Government should control training. Maybe that is an ideological situation, but that is what I feel.
I am very suspicious of the contracting-out model with this sort of work. I understand that the final decision to sanction, reduce or cancel benefits would remain with civil servants, but there can be no question that if private contractors have targets that they are expected to fulfil, the sense of pressure on the claimant will be of a different order altogether.
That is one of my major concerns, but it also reduces the job satisfaction for civil servants in that position. They will have lost all the job satisfaction of working closely with people, in getting to know and understand them. They will be left with the unpleasant task of ticking the box which eliminates somebody’s benefits. There are major implications for the Jobcentre Plus staff and major implications for claimants.
I understand that there will be targets for the private sector people, and there is a risk that some clients will simply not get a service at all because their chances of success will be much less. That is yet another risk. I am sure that there are others, too. The idea of companies making profits out of these processes of testing somebody’s willingness to undertake all sorts of work-related activities and so on feels somewhat immoral. I have difficulty with it as an approach to this sensitive work with members of the public.
The existing private companies do not deliver. I sent a letter from a teacher to the Minister who was told by the NUT that she is entitled to childcare provision during her maternity leave. The providers have said that if they provided everybody with the appropriate childcare they could go bankrupt, so they are not paying. I therefore support the idea that the Government rather than a private company should provide the service that they require.
We on these Benches share the suspicions, as the noble Baroness, Lady Meacher, put it so well, and the views of the other noble Baronesses who have spoken, about how it will work in practice. We have considerable reservations in principle on whether it is the right way for this service to go. If it is hived off or contracted out how will it be properly monitored and controlled?
This group of amendments allows us to debate the Government’s approach to contracting with the public, private and voluntary sectors to deliver welfare-to-work services on their behalf. As we set out in last year’s White Paper, commissioning of this type is crucial to delivering the outcomes we are looking for. In particular, it is important to use the advantages that third sector organisations can have in delivering support for the hardest-to-help and specialist groups. They can play a vital role in welfare provision. They are well placed to offer services because of their local experience and knowledge of what their community needs, and their rapport with their constituency groups. These organisations have already demonstrated their ability to reach communities cost-effectively and to gain local trust and credibility, which the Government cannot.
The noble Baroness, Lady Turner, talked about comparative outcomes. It is not a case of one sector delivering better outcomes than the other, but about ensuring that government and contracted providers work in partnership to deliver the range of provision necessary to support our diverse customer groups. It is the type of provision in place that matters, not who is delivering it. Under our current arrangements the private sector delivers 32 per cent of the welfare-to-work contracts, the public sector 38 per cent, and the third sector 30 per cent. I would say to the noble Baroness, Lady Afshar, that where communities are particularly diverse, there is a clear case for local specialist knowledge either as a prime contractor or a subcontractor that can be brought to bear. That would not necessarily be at the same level in Jobcentre Plus.
I was coming to that. I will respond in detail to the letter that the noble Baroness has sent to me. Clearly, if people are not complying with their contracts, they can be terminated. I shall come to the monitoring arrangements in a moment.
New Section 2G will allow contracted organisations, where appropriate, to deliver work-related conditionality to lone parents and partners of certain benefit recipients on behalf of the Secretary of State. The clause also provides that decisions made by such contractors will be treated as if they were made by the Secretary of State. That will ensure that people required to participate in the new arrangements will have the normal rights of appeal, even when decisions have been made by outside providers. I am sure that all noble Lords who have spoken will be reassured by that. There is no intention to use external providers as a means of bypassing those rights. This will mean, for example, that a claimant will be able to appeal a decision concerning attendance at a work-focused interview or work-related activities contained in an action plan, or a direction that is unreasonable or inappropriate. As with current contracting practice, if there is an appeal it would be referred to and dealt with by Jobcentre Plus.
I can assure noble Lords that this clause is not about the privatisation of Jobcentre Plus. Jobcentre Plus remains at the heart of our strategy to deal with the economic downturn, and, longer term, to ensure that everybody has the support they need to find sustained work. It has been an important part of our welfare-to-work activities since the start of New Deal in 1997, as evidenced by the extra resources that were made available in the Budget of this year and the Pre-Budget Report of last year to make sure it is able to play its full part in these programmes. External providers bring specialist knowledge, experience and skills. We wish to draw on their expertise wherever possible, but we want to do so in a fair and responsible way that will protect the right of individuals to appeal decisions.
I turn first to Amendment 60, tabled by the noble Lord, Lord Skelmersdale. This probes the extent of the functions that may be exercised by a contractor on behalf of the Secretary of State, and our intentions with respect to subcontracting.
Functions to be exercised stop short of decisions about benefit entitlement or sanctions, which are always made by the Secretary of State. The Bill does not alter our current practice on the use of subcontractors. It is for the department to include provision for subcontracting in the prime contracts that it awards, with the consent of the Secretary of State. That is the route in to subcontracting.
Under the principles of the department’s commissioning strategy, prime contractors are expected to ensure that DWP provision is joined up with local partnership arrangements. They are expected to work proactively with smaller, specialist providers and subcontract to them, where appropriate. Also, to ensure that the system operates effectively, the commissioning strategy includes a code of conduct, which spells out the key values and principles of behaviour for providers as well as the responsibilities of the prime contractors. It states that the development of smaller sub-contracted providers will be supported and encouraged by prime contractors, and that they should provide a level of extra support for new entrants into the market. All providers will be expected to operate in accordance with the code. That is our policy.
However, Amendment 60 would give a main contractor the unrestricted power to subcontract. The Secretary of State would be relinquishing to a contractor her authority to determine who carries out the relevant functions, and could lead to the department not knowing which contractor was performing these functions. I do not think that that is the noble Lord’s intention, and I would therefore ask him to withdraw the amendment.
Amendment 61, again tabled by the noble Lord, Lord Skelmersdale, turns on the question of the relationship between the provisions of legislation and those in specific contracts. It also seeks reassurances about provisions which would appear, on the face of it, to put contractors in an invidious position by denying them legal certainty about when a contract may be terminated.
Contractors are required to provide a minimum level of support to all customers referred to them. The noble Baroness, Lady Meacher, was particularly concerned in that area. We do not specify the process for dealing with our different customer groups beyond a minimum necessary to ensure that they are preparing for work. However, as part of the contract management process, we do monitor quality of service and outcomes of our customers. Providers are expected to use their skills, knowledge and expertise to achieve positive outcomes for all their customers. To ensure that this happens, the department has a formal contract management process, which is designed to ensure that contractors meet the quality and delivery standards set out in the contract specification for all those they deal with. In addition, external inspection—for example, by Ofsted or Estyn—and validation will ensure the quality and accuracy of their activities if the provider also delivered training.
DWP contract managers also use a risk-based approach to target resources at those providers that are deemed as high risk, conducting more frequent face-to-face reviews concentrating on performance and quality of provision. If a provider is not meeting the required contractual performance this would be dealt with through our existing contract management processes. In the first instance, we would seek to agree a performance improvement plan with the contractor. If this does not work and performance fails to improve, we would consider terminating the contract. In these cases we may tie the improvement plan into the notice period specified by the contract.
In normal circumstances, contracts may be terminated giving the agreed notice as stated in the contract.
I think that the answer is yes. There would be complaints procedures in the contract that would have to be followed, including a route to Jobcentre Plus. If I do not get anything more forthcoming from the Box on that, it might be helpful if I write to the noble Baroness.
On that point, will the Minister confirm that these contracts will be available for public inspection, so we can see the break clauses and the termination arrangements, and that we will not be told that it is commercial and in confidence?
My immediate response to that is that the noble Lord’s second proposition is probably the one that runs; that is, that these would be commercial contracts. Obviously, the outcomes would be clear in a number of ways in terms of departmental statistics and more generally. I do not think that it would be usual for contracts of this nature to be fully within the public domain. Clearly, the process should be clear and transparent and there should be proper accountability.
Trying to scrutinise contracting-out arrangements of all sorts has been a great problem in many ways, whether it is PFI/PPP or anything else. Even if the whole contract is not there, will the notice period and the conditions under which the poor performance can be terminated earlier be made public? Presumably, there will be a standard form for the tender process for letting these contracts. Given the significance for the monitoring and control purposes about which other noble Lords have talked, surely there is no reason why that part of those contracts should not be publicly available.
I see the thrust of the noble Lord’s point. I should like to reflect on that to see what would routinely be available through the contracting process. A certain amount would be available, although there is an extent to which some of the detail would not.
In normal circumstances, contracts may be terminated given the agreed notice as stated in the contract. There may be occasions where we need to terminate a contract immediately due to breach or serious breach. Examples of this would include unlawful discrimination, financial irregularity, non-compliance with health and safety legislation, or disclosure of confidential information. On that basis and with these reassurances, I hope that the noble Lord will feel able not to move that amendment.
Amendment 64 probes the nature of the relationship between the decision of a contractor and that of the Secretary of State. I have already mentioned the extent of the functions which a contractor may perform on behalf of the Secretary of State. New Section 2G(9) of the 1992 Act deals with decisions made on behalf of the Secretary of State by an “authorised person”. The amendment would mean that a contractor’s decision would be his own, but would have the same effect as that of the Secretary of State. In practice, this amounts to the same thing and the amendment would have no legal effect; although I take the point of the noble Lord, Lord Skelmersdale, about the strange legal fiction whereby the decision of one person is, like transubstantiation, literally the same as the decision of another rather than taken as such. But I am advised that our wording achieves the same result.
Amendment 65 seeks clarification of a particularly obscure piece of text. I have every sympathy with the noble Lord, Lord Skelmersdale, in seeking clarification, which I am happy to give. The wording in question is,
“the authorised person is entitled to treat the contract as repudiated by the Secretary of State (and not as frustrated by reason of the revocation)”.
This means that where the Secretary of State ends a contract before it is due to end, a contractor could sue her for damages for breach of the contract. The Secretary of State would not be able to escape liability through provisions in the Bill which allow her to end the contract in this way. So the construct would not be frustrated, it would be treated as repudiated.
Amendments 151 and 152 are related to Clause 25. They simply remove the words “if any”, which, as the noble Lord observed in speaking to his amendments, is to probe our intentions. I make it clear that it is not the Government’s intention to provide in the Bill that certain functions of the Secretary of State must be contracted out. The main purpose of new Section 20E, as inserted by Clause 25, is to allow the Secretary of State to authorise public, private and voluntary sector contractors to undertake various functions relating to the progression-to-work provisions.
Conditionality in this respect for lone parents and partners in particular will initially apply when they claim income support and subsequently apply once they are transferred to jobseeker’s allowance in the modified version provided for by the Bill. The contracting-out provisions in the Bill simply extend existing arrangements in what I might call “mainstream” JSA to those modified versions of income support and JSA.
Perhaps I may make a technical argument for a moment. If Amendments 151 and 152 were accepted, there may be an implication in the legislation that Parliament expected the Secretary of State to exercise the powers to contract out the functions and was therefore subject to a duty to do so.
There is a difference between “expects” in terms of “is required to” and “may”. We are simply providing flexibility. If we followed the noble Lord’s prescription, the Secretary of State would be at risk of having to contract out, which I think would run contrary to what most noble Lords who have expressed a view on the matter would want.
I am not being shy or coy. We have made it clear that we will have pathfinders, undertaken by external providers, to test these propositions, but we need to see where those pathfinders take us and how they are evaluated. If we roll them out across the country in due course, they may in some instances be undertaken by external providers. There is no compulsion or presumption that they will in all circumstances be undertaken by external providers. There has been nothing in what we have said which suggests that that is the case.
Amendment 153 would ensure that functions can be exercised concurrently by the Secretary of State and by a contractor, but it would also create ambiguity as to whether more than one entity, whether it is the Secretary of State or another person, can exercise a function that has been contracted out. More specifically, it would raise a doubt as to whether functions that had been contracted out could be carried out by the Secretary of State or another person not mentioned in the authorisation given to the contractor. I do not think that it is the noble Lord’s intention to create this legal uncertainty and therefore ask him not to pursue his amendment.
Amendment 155 again involves particularly opaque drafting. The best approach is for me to explain the effect that we want the legislation to achieve. When referring customers to an external provider, we want to ensure that they are not disadvantaged in any way and continue to be treated in the same way as if they were dealing with the department—I think that that is an aspiration that we would share.
The Bill will help ensure that anything a customer does in relation to a contractor is treated as if it were done in relation to the Secretary of State. For example, if a customer were required to provide information to a contractor, such as proof of completing work-related activity, and did so, it could be treated as if the information was provided to the Secretary of State. That is, believe it or not, to provide for legal certainty. Such provision is necessary to ensure that when customer deal with a contractor in relation to any contracted out requirements, they do not have to determine what they need to do in relation to a contractor and the department. When such customers deal with the contractor, they are also automatically dealing with the Secretary of State.
Amendment 155A attempts to remove the ability for anything done or omitted to be done by a contractor or employee to be treated as if it were something done or omitted by an officer of the Secretary of State. In most circumstances, roles ascribed in legislation to the Secretary of State are in practice carried out by officers of the department or, in the case of the amendment, staff in Jobcentre Plus. However, there are circumstances in which roles are ascribed to officers of the Secretary of State. The wording used in this provision mirrors the arrangement between a contractor and his employee with that between the Secretary of State and an officer who acts on her behalf. It would ensure that the individual will be in the same position whether a contractor is used or not, as the case may be.
I am sorry to interrupt the Minister, but is he saying that if a Minister is brought to the Dispatch Box because there is a problem with the department outside the Civil Service—the problem is with the contractor—that Minister is answerable for the contractor?
I think that it would generally be the case that the Minister is responsible for the activities of the department and would have to account for Parliament for its activities, including those of the contractor. That would run naturally.
To accept the amendment tabled by the noble Lord, Lord Skelmersdale, would raise unnecessary ambiguity about how customers will be treated and the safeguards by which they will be protected. I am conscious that this has been a somewhat lengthy response but it was to a fairly large group of amendments, with some technicalities embedded within them. I hope that it satisfies the noble Lord and other noble Lords who have spoken.
The last thing that I would ever want to do would be to create more ambiguity than is already contained in the pages of the Bill—and by the nods around the Table, I gather that various other noble Lords agree with me on that. The Minister is quite right: this is a bad group, and I should probably never have agreed to it in the first place. However, in the interests of time, I hoped that it was an appropriate thing to do.
My comments particularly apply to Clause 25 stand part. The fact that I was speaking to it did not necessarily mean that I disagree with it. I must disabuse the noble Baroness, Lady Turner, by saying that I certainly do not agree 100 per cent with the views sent to us by the TUC and other union organisations. It will not surprise her to hear that. She will not find that I put down a proposal in the next couple of weeks to leave out Clause 25 or, indeed, a numbered amendment on Report. That is not my intention.
We are getting a little closer to what is going on with contracting out. I am grateful for the appearance of the noble Lord, Lord Oakeshott, in this Committee, as he knows much more about contract procedure than I do. The noble Countess, Lady Mar, is quite right: the important thing is to ascertain who is answerable. From the answer that the Minister gave to her question and from what he said earlier, I appreciate that in all cases, even if an activity is contracted out, the Secretary of State is in control and therefore has to defend the actions of the contractor or the sub-contractor. That is absolutely the right thing to do.
The matter of frustration rather than repudiation is extremely technical and perhaps I should have consulted a lawyer before attempting to put down an amendment to that effect. However, the Minister has as usual explained the matter extremely well, and that is not the bit that I will have to read particularly carefully when I read Hansard tomorrow morning.
The Minister said that Amendment 60 would give the main contractor unrestricted power to use, access and employ subcontractors. I do not see anything wrong with that. Surely the Secretary of State is not the person to say whether the prime contractor can or should employ the services of a subcontractor in each particular case. Surely to goodness the main contractor, who decides that he has this range of difficulties in his casebook, has the knowledge, and should have the power, to engage such subcontractors for such subset of these long-term unemployed people as are appropriate for his casebook. I find that rather difficult and will have to read that part of the Minister’s speech extremely carefully.
I reiterate that we would not want to end up with a situation where we contract with a prime contractor without any knowledge, control or understanding of who he may subcontract with. The process by which the subcontracting can take place being part of the known and identified contract arrangements between the Secretary of State and the prime contractor must be the right way to go. I am not sure that it was the intended effect of the noble Lord’s amendment, but to draft it as he has would in a sense give the prime contractor, without control, the ability to subcontract. We would not want that.
Clearly, the Secretary of State and the department need to know what is going on, but it is not for them to say that main contractor X should use the services of charity Y, Z or A in the execution of that contract. It is for the Secretary of State to know that those subcontracts exist and that the prime contractor believes that he needs to use them, but it is surely not for him to direct the contractor to use a particular organisation to fulfil his contract.
It may not be a question of direction, but I would have thought that, in any contract negotiations, if one is trying to ensure that there is full coverage of the support that needs to be available, the Secretary of State, or officials working on her behalf, would want to be clear about precisely what arrangements are being put in place. To be clear, if the Secretary of State’s authority is delegated, she must consent to the subcontract. That is the current arrangement and is absolutely right. The Secretary of State, in agreeing to arrangements with a prime contractor, is entitled to, and should, know the full spread of expertise and support that is available. Surely we would not want it any other way.
That is the point that I was making. I was saying that of course the Secretary of State needs knowledge thereof, but the prime contractor has the caseload. Caseloads are going to differ, for example by geographical area—perhaps a rural area as opposed to a municipal one—and the Secretary of State would not necessarily know what is in that particular casebook. It would be for the contractor to break up the casebook, and say that, “For this group of people, I will need such and such; and for another group of people I will need a different type of subcontractor altogether”.
I am not sure that we are very far apart on this. We are seeking to achieve the right position: when the contract with the prime contractor is finally entered into, the Secretary of State would want to know the full range of provision that is available to that prime contractor. Therefore, in a sense, the Secretary of State consents to knowing who is going to provide that full range of services. That can be distinguished from a situation where the prime contractor may have a contractual obligation to have full coverage, but who they are going to use in any individual case is left open when the contact is entered into. That is not the right approach.
It is one thing to have the availability; it is a totally different thing to have to need to use it in particular cases. I was trying to illustrate that. This is an extremely complicated subject.
However, one thing that is fundamental to all this is the position of the long-term unemployed individual. I spoke of my personal confusion about who is the personal adviser in any particular case. There is no argument that the operation starts within Jobcentre Plus and that there is a personal adviser who, up to now, has been—from memory—a job adviser. That job is contracted out and somebody else from the prime contractor looks on a day-to-day basis after the long-term unemployed individual. I hope I have that right.
The job adviser and Jobcentre Plus must presumably maintain some measure of control in all this. Therefore, it is very important that we understand the relationship between the private sector adviser and the Jobcentre Plus adviser because both people will be in existence at the same time in relation to the long-term unemployed individual and they will have to talk to each other if only because the jobcentre adviser is the person giving directions, dealing with sanctions and so on, on the advice of the contractor’s adviser. I am sorry to make this complicated. I have not written it out in quite such detail as I might have done, but those were the sort of questions that I was asking in this group of amendments.
I suspect that it would help us all if the Minister were to write us a letter on exactly how this relationship is going to work, unless of course he wants to do the operation verbally now.
Amendment 60 withdrawn.
Amendments 61 and 62 not moved.
63: Clause 2, page 8, line 30, leave out “criminal” and insert “court”
This is a simple probing amendment. On the previous amendment my argument rested in part on new subsection (7), which I suggested says that any decisions surrounding these functions are construed to be decisions made by the Secretary of State. However, new subsection (8), to which the amendment refers, contains exclusions; anything done or omitted does not apply to so much of the contract as relates to the exercise of functions. In other words, that is a matter for the contractor and the contractor alone, and that is fair enough. It is also fair enough that any court proceedings brought as a result of anything done by the contractor, his employee, his subcontractor or whatever, which I assume includes subcontractors, are to be against the contractor rather than the Secretary of State. But subsection (8) of new Section 2G does not appear to say that. It seems to me to say that “criminal proceedings” are for the contractor alone. Where does that leave proceedings for civil action? Does not this lacuna mean that they are to be the province of the Secretary of State? Two questions therefore arise. First, is my interpretation correct? Secondly, why does it refer only to criminal proceedings and not all court proceedings—perhaps tort proceedings for negligence, breaches of contract or administrative law, for example? I beg to move.
New Section 2G would allow contracted organisations, where appropriate, to deliver work-related conditionality to lone parents and partners of certain benefit recipients by allowing some of the conditionality functions conferred on the Secretary of State to be carried out by providers. Under the Bill, relevant claimants affected by these arrangements will always have an effective remedy against the Secretary of State for anything a contractor does on her behalf, except where the action follows some criminal activity on the part of the contractor. This provides clarity and simplicity for the individual, who is protected because he knows that he can always sue the Secretary of State on any civil matter. The Secretary of State can decide for herself whether she in turn wishes to sue the contractor for any breaches.
This amendment would draw the line in a different place, such that the contractor would be directly liable in all cases subject to court proceedings, including matters of a civil nature. It would mean, for example, that where a claimant wanted to make a claim for negligence they could sue a contractor in civil proceedings at court instead of taking action against the Secretary of State by virtue of new Section 2G(7).
The provisions in the Bill reflect what we have done in all our other contracting provisions. Such arrangements are preferable because they give greater certainty and clarity to both client and contractor. The contractor is responsible for any criminal issues while the Secretary of State takes responsibility for civil matters. I hope that that has clarified things for the noble Lord.
I have made this point before: the fact that the department has always done this does not necessarily mean that it remains right. When did contracting rights start in the department? Was it 20 or 30 years ago? I think that it was something like that.
It was before mine too, I can assure the noble Lord. I do not apologise for raising this matter. I am not yet persuaded that I am wrong. I cannot see that if the contractor commits a civil misdemeanour, he should not be liable at court. I will look very carefully at what the Minister has said and perhaps come back to it, but I suspect not. I beg leave to withdraw the amendment.
Amendment 63 withdrawn.
Amendments 64 to 66 not moved.
Debate on whether Clause 2 should stand part of the Bill.
Before we leave Clause 2, it is worth taking this last chance in Committee to reiterate some of the concerns which have been expressed about this clause. They boil down perhaps to claimants in the progression-to-work route being given the appropriate work-related activity for their circumstances, to sanctions being a last resort for this group and for the training of Jobcentre Plus staff to be such that we can all be confident in their ability to interact with claimants with multiple barriers to work. It may be worth noting that the Joint Committee on Human Rights was concerned that there was some evidence that certain vulnerable groups, in particular those with mental health problems or learning disabilities, were disadvantaged already by the administration of the reforms introduced by the previous Welfare Reform Act 2007, and that the Government had not said how they intended to monitor the effectiveness of existing safeguards. Perhaps we will have to decide whether the Minister’s replies to this part of the Bill have been satisfactory.
The JCHR specifically recommended that the training and guidance that a person advises should expressly address how to identify and engage with people with mental health problems and learning disabilities. It said:
“The training and guidance should encourage staff to engage proactively with supporters, family and other professionals where necessary, appropriate and consistent with the claimant’s right to respect for private life. Any training and guidance should be prepared in consultation with disabled people and service user groups”.
The Grand Committee has echoed this afternoon what the JCHR said. Before the next stage of the Bill, and after studying the Minister’s responses, we shall have to consider which issues to revisit.
The surest and most sustainable way to address child poverty is to support more parents into work, which pays and allows them to manage the careful balance between employment and family life. For that goal to be met, we want to ensure that preparation for work becomes a natural progression rather than a sudden step up.
The clause allows us to invent this natural progression by introducing a progression-to-work group, as recommended by Paul Gregg in his independent report, Realising Potential: A Vision for Personalised Conditionality and Support. The report recommends that the parents and partners of certain benefit recipients with younger children within the group undertake mandatory action planning and work-related activities that are flexible and personally tailored to their needs and circumstances to prepare them for work.
I stress up front that we are not forcing anyone into work, apart from rare instances of non-co-operation where there may be the need of a direction to push people to do things they do not want to do. I say again, it is about preparing parents for work to avoid that sudden step up when their youngest child reaches seven and they have to make themselves available for work and actively seek work.
New Section 2D allows the Secretary of State to make regulations that may require a person in receipt of income support or the partner of a person receiving income support, income-based jobseeker’s allowance or income-related employment and support allowance, to undertake work-related activity as part of their progression to work. New Section 2E provides for action plans for persons in receipt of certain benefits and to the partners of such people who are required to attend a work interview under the provisions of new Sections 2A and 2AA of the Social Security Contributions and Benefits Act. The benefits in question are income support, income-based jobseeker’s allowance or income-related employment and support allowance. Regulations made under this section will provide details in relation to the form, content, review and updating of action plans.
When a person is required under the provisions of Section 2D to undertake work-related activity, the action plan will contain details of the activities that will allow that requirement to be met. The regulations will also allow the person provided with an action plan to ask for it to be reconsidered; they will set out the circumstances and time in which such a request may be made and the matters to be considered when deciding on reconsideration, notification of the reconsideration and directions giving effect to the decision on reconsideration. New Section 2F allows the Secretary of State to direct those groups detailed under new Section 2D to undertake specific work-related activities detailed in the action plan.
However, such a direction must be reasonable—this touches on the point about vulnerable people with mental health and learning disabilities—and have regard to the person’s circumstances. The specific activity identified should be one that helps the individual to prepare for entry. Section 2G provides the Secretary of State to authorise certain functions in relation to work-focused interviews, action plans and directions to be contracted out to external providers. Parental employment is the single biggest determinant of family income, and children in out-of-work families are at high risk of poverty. Living in a household where no adult is working puts a child at a 61 per cent risk of poverty. That is much higher than the 30 per cent risk of poverty for children in households where at least one but not all adults are in work and an 8 per cent risk of poverty for children in households where all adults are in work. Therefore, ensuring that parents are given the help and support they need to prepare for work when it is appropriate for them will have a major impact on them and their children.
Clause 2 agreed.
Amendments 67 to 70 withdrawn.
71: After Clause 2, insert the following new Clause—
“Work-related activity: additional premiums
(1) The Social Security Contributions and Benefits Act 1992 (c. 4) is amended as follows.
(2) In section 135, (the applicable amount) after subsection (6) insert—
“(7) The applicable amount shall include an amount in respect of a work-related activity component if the claimant undertakes work-related activity as defined in section 2D(8)(c) of this Act.”.”
There is some difficulty. I do not know what time the Committee is proposing to finish. If it is proposing to finish at 6 pm, I am stuck because I have Amendments 71 and 72—I shall not move Amendment 73—which are connected, but I do not want them grouped. Since we have taken so long over some previous amendments, I shall not be able to complete those two amendments by 6 pm, so I do not know what is the best thing to do in these circumstances. I do not wish to trespass on the Committee and say that we should continue to complete them; alternatively, we could start on them on the next day in Committee.
We could simply have them as the first item on the next day’s business. They change the topic to financial issues, which require some careful discussion, and many Members may wish to be involved. I do not see how we can do that in 10 minutes. I apologise to the Committee. It is not a situation I would wish for.
Committee adjourned at 5.47 pm.