17:58 - Division on Motion B1 - Ayes: 236 / Noes: 226 - Motion B1, as an amendment to Motion B, agreed.
20:17 - Division on Motion G2 - Ayes: 134 / Noes: 223 - Motion G2, as an amendment G, disagreed.
The Chancellor of the Duchy of Lancaster (Lord Strathclyde)
My Lords, I beg to move the Motion on behalf of my noble friend Lord Freud. I also felt that it might be a useful opportunity for me as Leader of the House to say a few words about the relationship between the two Houses and, in particular, the financial privilege of the House of Commons. After all, this being Valentine’s Day, it is not a bad time to talk about relationships.
Perhaps I may begin by commending to the House the statement made by the noble Baroness, Lady Royall of Blaisdon, on 10 February 2009. Everything I say today is based on that material and I am grateful that there is not an inch between us. I also commend the paper on the subject by the Clerk of the Parliaments of 10 February 2009, yesterday’s update by the current Clerk of the Parliaments, and the note published by the Clerk of the House of Commons last Thursday. All three documents are available in the Library and online. They all accord with each other and clearly set out the position, which I shall now try to do with something approaching the same clarity and accuracy.
Even for a Conservative, the financial privilege of the House of Commons cannot be considered new. Its origins lie in the constitutional settlement that followed our civil war. The Commons agreed its first resolution on the subject in 1671, and in 1678 resolved that:
“All aids and supplies, and aids to his Majesty in Parliament, are the sole gift of the Commons; and all bills for the granting of any such aids and supplies ought to begin with the Commons; and that it is the undoubted and sole right of the Commons to direct, limit and appoint in such bills the ends, purposes, considerations, limitations, and qualifications of such grants, which ought not to be changed or altered by the House of Lords”.
That resolution settled the relationship between the two Houses for a long time, until the trauma of the Finance Bill of 1909 when this House rejected Lloyd George’s Budget. That led to the Parliament Act of 1911, which put the legislative relationship between the two Houses on a statutory footing and formally circumscribed our role in Bills which deal exclusively with expenditure or taxation or the granting or raising of loans—Bills referred to as money Bills. For the avoidance of doubt, the Welfare Reform Bill is not a money Bill. It is a normal public Bill, some provisions of which relate to expenditure.
At this point I should make clear that the Commons’ financial privilege has, from its origins, extended to both taxation and expenditure. As successive editions of Erskine May have put it:
“The Commons’ claim to sole rights in respect of financial legislation applies indivisibly to public expenditure and to the raising of revenue to meet that expenditure”.
The idea that it is novel for the Commons to assert its financial privilege for public expenditure as opposed to taxation is simply wrong.
That is the history, but what are the implications for today and thereafter? The position is as it was throughout the 20th century. As the Clerk of the Parliaments put it in his 2009 paper,
“until the Commons asserts its privilege, the Lords is fully entitled to debate and agree to amendments with privilege implications”.
That is what we did in this case; and were perfectly entitled to do. I vigorously defend the right of the House to ask the Commons to reflect, and indeed I did so myself in opposition.
What happens next is entirely a matter for the House of Commons, and I intend to respect the convention that the two Houses do not debate the other’s procedures. I can though direct Members of this House to the helpful memorandum by the Clerk of the House of Commons which makes clear that it is the Commons officials under the authority of their Speaker who determine whether each Lords amendment engages financial privilege before the House of Commons is invited to accept or reject each amendment. The Government have no role in this decision; and the Clerk of the Commons has made that clear.
It should not come as a surprise to anyone that in this case the Commons authorities decided that the 11 Lords amendments which we have before us today engaged financial privilege: their cumulative cost is more than £2 billion. So the idea that this was a knife-edge decision reached only after lobbying by the Government is simply implausible.
It is only after the question of privilege has been determined that the Commons considers whether to agree or disagree with each Lords amendment. If the Commons agrees, it can choose to waive its privilege. But if it disagrees, it must offer a reason, and the only reason it can give is privilege. As the Clerk of the Commons explains:
“If an amendment infringes privilege, that is the only reason that will be given. This is because giving another reason suggests either that the Commons haven’t noticed the financial implications, or that they are somehow not attaching importance to their financial primacy”.
I hope that three things are clear from that summary: first, that the scope and presence of privilege are solely for the Commons; secondly that the Government have no role in designating whether or not a Lords amendment impinges on privilege; and last, that when the Commons disagrees with a Lords amendment found to involve money, privilege is the only reason that it can possibly cite for rejecting the amendment—there is no discretion to give another reason. The whole House should be grateful to the noble Lord, Lord Martin of Springburn, who has twice in recent weeks made these very points to help our understanding.
I think that this notion of discretion is where much of the confusion lies, so I propose now to say a word about the ability of the Commons to waive its privilege. If a Lords amendment which has financial implications is within the existing Commons’ money resolution, the Commons may agree to that amendment and, in so doing, waive its privilege. But if the Commons disagrees to the amendment, the question of waiver does not arise: the Commons must give this House a reason and that reason must be a privilege reason. In other words, the designation of a Lords amendment as privileged does not preclude the Commons from accepting it. In fact, the only question for the Commons is whether to accept or reject each Lords amendment on policy grounds. If it accepts the amendment, privilege is waived; if it rejects it, privilege cannot be waived.
Lord Higgins
My Lords, it is extremely helpful of the Leader of the House to set out the position so clearly, and it is what I have always understood it to be. May I make one practical point? The amendment comes back from the other place, privilege having been claimed. The convention is that one does not send back an amendment which is likely to invite the same response. The trouble is that the simple point which is made when they claim privilege is “We can’t afford it”, and one might send back an amendment which costs somewhat less. We do not know whether they “can’t afford it” to the extent that such an amendment would be acceptable. Therefore, it may be quite reasonable for this House, if it gets back an amendment that has been rejected on grounds of financial privilege, which effectively says that we cannot afford it, to send an amendment back that would cost less than the one that was originally proposed.
Lord Strathclyde
My Lords, I am very pleased that I have taken the opportunity this afternoon to clarify something that I know a lot of Peers feel strongly about, particularly former Members of another place. Given that since the general election more than 100 Peers have joined this House, it is worth from time to time re-explaining some of the reasons behind the relationship that exists between the two Houses. I say respectfully to the noble Lord, Lord Morgan, with all his historical perspective, that he may well be right that it has not been a seamless web since the 17th century. But the settlement has been very much recognised and has worked respectfully between the two Chambers over the past 100 years, not least during the course of the Labour Government since 1997.
I agree with the noble Baroness, Lady Royall, as Leader of the Opposition. I understand that there has been widespread comment in legal, academic and constitutional circles, although it has not always been accurate. But I hope that part of what I have laid out today will help those outside commentators to understand the position as I see it and as I believe the House of Commons does. It is a long-standing convention, for reasons which are entirely obvious, that the two Houses do not debate each other’s internal procedures. I am not entirely sure what would be gained by having a further debate on this. After all, today we have a very full House and we have had a useful and interesting debate on this issue.
In everything that I have said and that we are doing this afternoon, there is no extension to the issue of legal privilege. As I said in my opening remarks, the situation is exactly as the noble Baroness, Lady Royall, when she was Leader of the House, laid out in 2009. Nothing has changed. That is why I join with my noble friend Lord Tyler in being somewhat bemused about the noble Baroness’s view on House of Commons privilege. I was rather hoping that she would leap to her Dispatch Box and agree with every word that I had said, at least on the basis that I had agreed with everything she had said. I am very grateful to the noble Lord, Lord Laming, the Convenor of the Cross Benches, for his important intervention.
Let me clarify one aspect of this. As the Clerk of the Parliaments put it in his 2009 paper, until the Commons asserts its privilege, the Lords is fully entitled to debate and agree to amendments with privilege implications. It is right that we should have the ability to do so, not least because it allows the Minister to give the Government’s point of view. That will continue and rightly should continue.
It is always good to hear from former Speakers of the House of Commons and I am indebted to the noble Baroness, Lady Boothroyd, who harked back to an age when there was clearly more flexibility and more discussions in the usual channels in the 1990s. Of course, my noble friend Lord Naseby explained about the ways and means.
Perhaps I may confirm to the noble Baroness that there is no threat to this House in terms of its powers and role. To respond to my noble friend Lord Fowler at the same time, the only purpose in having the Bill on reform of the House of Lords and debating that reform is that this House should be reformed only if it can be more assertive, stronger and better able to hold the Government to account and if it can challenge the views of the House of Commons. Otherwise, why on earth would we bother with all of this?
Lord Strathclyde
My Lords, my noble friend Lord Fowler, with his tremendous memory, harked back to 1986. He complained about the Commons using programme Motions more than they did in the past, and that is true, but of course it is up to them. However, I can confirm that the House of Commons discussed and debated each of these amendments in full before passing them back.
I can tell him my noble friend Lord Higgins that my noble friend Lord Freud will be able to explain the Government’s position on each of these amendments, but he will not be able to confirm what position may be taken by the House of Commons because that is a decision for the Speaker on the advice of his Clerks. However, I should like to repeat the really important thing in all this. Some 35 of the 46 Lords amendments to the Welfare Reform Bill that were designated by the House of Commons as privileged were subsequently accepted by that House. That must be an indication that we did a good job and we did it well.
I hope that I have answered all the questions put to me. If not, I shall reply in writing, but I hope that we will now be able to continue.
Lord Stoddart of Swindon
My Lords, I am much obliged to the Leader of the House. I do not really believe that he has dealt satisfactorily with the points raised by the noble Lord, Lord Fowler. He said that this House would be strengthened by the Bill that apparently is to come before us in the next Session, but if it does not provide the same financial powers as those of the House of Commons, we will be in no different a position from that in which we are at present, which we are discussing. Unless that Bill can be amended to give the House of Lords the power to make amendments that may indeed put up expenditure without being told by the Commons that we cannot do so, then what is the point of us?
Lord Strathclyde
My Lords, I have long believed that there are adequate powers in this House, many of which we do not use, partly because we are an unelected and appointed Chamber. When and if we are ultimately elected I expect that, over time, those powers will evolve. I have no idea how they will evolve, but if a Bill for an elected House is presented, this is an issue that we shall debate long and hard, and I look forward to the noble Lord’s amendments.
Lord Freud
That this House do not insist on its Amendment 1 to which the Commons have disagreed for their Reason 1A.
LORDS AMENDMENT 1
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)
My Lords, before I go into this Motion, I would like to pick up some of the points raised by my noble friend the Leader of the House about how what we are considering today is impacted by the ping-pong process that we are going into. The question asked by my noble friend—
Lord Laming
My Lords, I am sorry. This is a really important statement that we are all terribly keen to hear but are unable to do so amid all this noise. Perhaps it is my position in the Chamber, but I wonder if the noble Lord could start again.
Lord Freud
My Lords, I apologise, I was keen not to waste time. I want to pick up on the comment made by my noble friend: why would we bother with all this? I am considering all the work that has been done on this Bill, and as I look around noble Lords I can see that the most astonishing amount of energy has been put into this Bill through its Committee and Report stages; I am the first to register that. I want to assure noble Lords that the debates we have had have been heard, that I have represented the points made with great vigour in government, and that I have seen a lot of changes in this Bill as a direct result of that work. I shall name a few of those changes because it is easy to forget what we have done with this Bill.
On ESA time-limiting, we accepted the need to make amendments to protect those with degenerative conditions. On the benefit cap, we have put in a nine-month grace period and exempted those in the support group of ESA, again in response to debates in this House. On PIP, we have made a number of changes to the required-period condition and have restored the mobility component for those in residential homes. Within universal credit, we have put in £300 million a year to afford additional childcare. That all added up in this spending review period to £638 million. Looked at as an ongoing cost when universal credit is introduced, it amounts to an extra £518 million per annum in a steady state. Each of those concessions was made as a direct result of the debates that we had in this House. I think, bluntly, there was a point at which the Government decided they could not afford any more. The cost of the amendments that we sent through would have been £2.1 billion in this spending review period and another place decided that that was more than could be afforded. I think that we reached the limit and the way to interpret what has come back from another place is that we cannot afford any more. Despite that, I want noble Lords to know that I am going on listening today and I hope that there will be several areas where I can move things along in a way that is helpful to the mood and views of many Peers.
I turn to the Motion. Noble Lords will remember that this is about having just two rates in universal credit for disabled children which align with adult rates. Our objective is to distribute resources fairly and simplify the current systems of support. The idea is to target the money on need and not on age, because of the problem of when people move from the child system to the adult system.
We are absolutely committed to supporting disabled people, to improving their quality of life and to tackling poverty at its root. We need to assess how to invest scarce resources in the most effective way. It is clear that this has been a matter of great concern to noble Lords. I have been exploring that concern and trying to get to its root. The concern lies in whether we are channelling the money to the right children. At the moment, children are passported from DLA and the question is whether we have the right definitions. I understand that concern and am taking steps, subject to your Lordships’ response, to do something about it.
If we are going to have a system of alignment between children and adults, and make sure that that works effectively and that we minimise disruption, then we have to be certain that the categorisations are consistent through that age gap. This is not an easy thing to do, because at the moment the definitions in these areas are linked to DLA for children. We need to be careful not to pre-empt any decisions on the future applicability of that, because we may be looking to change from DLA for children to PIP for children. We need to spend a considerable time to get that move—if it happens—right. Children are different from adults and have different needs from them at different times in their lives. Just as for adults, we need to have a system that is fair and consistent for children.
We need to learn from the introduction of PIP for those aged 16 to 64, which will start in April 2013 and continue through to 2016 as people switch over. We need to build learning from that process. We are also looking at moving towards a single assessment process for children’s social care, health and special education needs. By the start of 2015, we should have gathered sufficient evidence to be able to consider our future approach.
On the basis of that timing and on the basis that the noble Baroness, Lady Meacher, withdraws her new amendment, I am therefore happy to give a commitment to the House that, by the end of 2015, we will review the current definitions, working carefully through the issues with disabled people and disability organisations, so that we have a gateway in place that ensures that the most severely disabled children get the right support.
Before noble Lords say that 2015 is a long way away, I point out that it is not quite as far as it seems. Universal credit will start to roll out in October 2013, and we will migrate claimants into it slowly over the next four years. In practice, people with disabled children are likely to be towards the end of that migration queue anyway. In addition, we have transitional protection for the existing groups. In practice, the timings would mesh quite elegantly. It would mean that the commitment is there to either look at it in the context of a move to child PIP or to have a proper look at it anyway within the context of DLA.
I hope I have been able to demonstrate to the House that we are taking this issue very seriously. It is an important issue that has been raised, and it is one we have thought about very deeply, in order to get this process right. I therefore urge the House not to insist on Amendment 1. I beg to move.
Motion A1 (as an amendment to Motion A)
Lord McKenzie of Luton
My Lords, like other noble Lords, I think we should be grateful to the noble Baroness, Lady Meacher, for keeping us focused on the issue of disabled children, and to all noble Lords who have spoken in this short debate with a great deal of expertise and knowledge on the subject. They reminded us that even in this rich country there are people and families who still live in poverty and are challenged by poverty. The deliberations that we bring to bear through legislation may seem somewhat detached from that, but that legislation has a real effect on real people’s lives.
Like my noble friend Lord Peston and the noble Baroness, Lady Howe, I was a bit confused as to how this amendment became caught up in the issue of financial privilege because I thought that the Minister was on record as saying that this was not an issue of money. Indeed, the noble Baroness, Lady Meacher, confirmed that. I did not intervene in the earlier exchanges on this issue but I am somewhat concerned about aggregate figures of costs flying around, whether we agree with them or not, and tagging on to them a provision that has no cost implication at all. If that is permitted under these arrangements, it is a bit of a slippery slope.
However, we should be grateful to the Minister for his engagement running right across the Bill, particularly on this issue, and for his promise of a review on definitions and access to the various benefits. I hope that he will take account of the point made by my noble friend Lady Hollis and others that the issue of costs does not correlate exactly with severity of disability. If I have to take issue with the Minister, I wish that he had not said that his commitment to undertake this programme was conditional on the noble Baroness withdrawing her amendment. Frankly, if it is right to do it, it is right to do it.
Perhaps I may pursue one point with the noble Lord. He previously stated that families would obtain the benefit of transitional protection so that the cash amount of support under universal credit would not reduce. That would not of course protect the position in real terms but perhaps we can at last understand a little more—on the record, I hope—about how transitional protection will work. Is it to be applied separately to the differing components of universal credit or will it be looked at in aggregate? Could an increase in the housing amount, for example, mean an effective reduction in the protected disability addition? Can we also get some clarity around changes of circumstances and what types of situation would cause the transitional protection to be removed? What about, for example, a move in accommodation that might have been caused by the underoccupation provisions that we debated previously and will debate again shortly? Could that represent a change of circumstances that could cut off that vital transitional protection?
I do not wish to go over all of our powerful debate on this issue. I acknowledge the commitments that the Minister has made but repeat that we should be thankful to the noble Baroness, Lady Meacher, for keeping us focused on this important issue.
Lord Freud
My Lords, many specific points have been made and I shall try to deal with them. We have debated this issue a lot and perhaps I may gently remind the noble Lord, Lord Peston, that we actually voted both ways on very similar issues. I recall that we had a plus two and a minus 16 on this issue—I think it was this issue. When we talk about the message coming from the Lords to the Commons, there were a number of votes in this area.
Lord Peston
Is the noble Lord saying that we are being unreasonable for expecting some reasonable arguments from the other place?
Lord Freud
Gosh, that is a good question. I had better hold my counsel on that.
The amendment inserts a third rate for disabled children. It sets fixed relationships between those rates. With our primary structure, we are trying to have two elements—for disabled children and adults—aligned at the same rates, which are principled changes so that we have some consistency and make the system simple and fairer. I am trying to take out complexity from a system that, if your Lordships remember, is falling down because it is so complex. So simplicity has a value in itself. If the amendment went through, we would have different rates and a mismatch within the structure of universal credit.
I have been asked a lot of questions about the amount of money. The noble Lord, Lord McKenzie, will be pleased to know that I did not include this figure in the £2.1 billion that I cited earlier. To maintain the level of £77, under the original amendment, would have cost £200 million, which is why the Commons attached financial privilege to it, in answer to the question of the noble Countess, Lady Mar. To answer the noble Lord, Lord McKenzie, the reason why it is conditional is that there is not much point in having all the paraphernalia and trauma of a review if we have an amendment of this nature where we are locked anyway. That is why I made it conditional.
To answer the questions of the noble Lord, Lord Wigley, about how it would work, we start the universal credit timeline in late 2013, collecting information up to 2015, so we will have the information to undertake the review in 2015. The changes that the review will presumably recommend can be incorporated from then on.
Baroness Meacher
This is an important point. Can the noble Lord make clear that, having undertaken the review, the Government could adjust the rates for disabled children with different disabilities within the current legislation so that we would not have to wait for new legislation? If we had to do that we would be talking not about 2015 but an uncertain date in the future.
Lord Freud
It will depend on what comes out of the review. If it concerns child PIP, which it may very well be, which is a recasting of the whole structure, we may need primary legislation; but if it is an adjustment of DLA, I think we may not. It will depend on the outcome of the review, which will be serious and substantial. One issue that noble Lords are raising is that there is dissatisfaction with the way that we are applying these rates. There is general dissatisfaction about whether we are using the right criteria. We have one rather simple criterion at the moment. Building that review of how we do it will be a substantial exercise. The interesting thing about this debate is the general level of dissatisfaction about whether we are using the right definitions to get to the right children and the right families. Funnily enough, that has been one of the main things driving us to make this commitment.
We have here a commitment that either we are going with a major review of the child PIP or, if not, a fallback where there will be a review anyway, albeit within the context of the DLA. That is the commitment, and I can tell your Lordships that it has been somewhat hard fought.
Lord Wigley
I am grateful to the noble Lord for the clarification, which is very helpful. With such an important review, would it be reasonable to assume that, in the normal way of things, there would be opportunities to debate the outcome of the review here in the Chamber before orders were drawn up to implement any of the conclusions?
Lord Freud
I think that we will be discussing this a lot in the years to come—it is not a dead issue. When you set up such a review, it generates its own momentum. Noble Lords know how powerful a review in this kind of area is. Once you have a review like this and the momentum that follows from it, something happens reasonably rapidly. I do not think that you have set it in absolute terms because it becomes an irresistible force. Therefore, I do not think that that is a concern. The exact nature of what we then do begs a lot of questions that we simply do not need to ask. However, with regard to how we carry out the review, the involvement of this House will be taken very much into account.
Baroness Meacher
I really do not want to hold up the House at this stage but this is such an important point. My understanding is that the details are going to be in regulations. If that is the case, a review will be undertaken and I have no doubt that it will show that these rates are unfair. Why cannot regulations be changed within current legislation to achieve a fairer distribution of additions? That is my only question.
Lord Freud
I am saying that that may be one outcome but there may be a much more radical outcome in the introduction of PIP for children. The question is: are you better off doing that or adjusting DLA with the passporting arrangement? That is very difficult to prejudge when we have not done the review. Therefore, there is method in the, or perhaps I should say there is some method behind—
Lord Freud
Nearly. I hope that I have made it clear that I really understand the concerns being expressed not just by the noble Baroness but right around the House. I think that our commitment to carry out this review—it is a significant review that will look at the issue properly—is the right way of approaching the matter. It is far better than adding an unnecessary and untested complication to the design of what is meant to be a universal credit system which people can instinctively understand. If it is an offer, I urge the noble Baroness to accept it and withdraw her amendment.
Lord McKenzie of Luton
Before the noble Lord sits down, will he write on the issue of transitional protection and changes of circumstances?
Lord Freud
Yes, my Lords. I am sorry; I forgot to answer that. At this stage, I am not in a position to lay out transitional protection because we are currently looking at how it will work. However, it will be a bundled up protection. The work in progress effectively involves taking someone’s existing entitlement, comparing it with their universal credit entitlement and paying the difference as a lump sum, which is then maintained. However, in the context of what we are talking about, the migration process is rather more important than the transitional protection. In the vast bulk of cases, it is when those families move on to universal credit that will matter more than transitional protection, which will be towards the tail end of this period, if at all.
Baroness Meacher
I thank the Minister for his response. I accept what he says about the simplification of the system. That is absolutely right. However, I do not accept the suggestion that this system—certainly in this part of the Bill—is fairer. The fact is that it is not; it is deeply, deeply unfair. I find myself in a situation where we are either going to have the Minister’s acceptance—I think we do have that—that this is unfair and needs a full-scale review, or we have nothing. As the noble Lord, Lord Peston, indicated, maybe we are being bullied. My sense is that there are perhaps some rather large, old, hefty powers from another place leaning on us. Therefore, I would not wish to allege that the Minister is bullying us. I accept that if one has a full-scale review, there is a momentum and we will be there to see what happens and to try and make sure that the right thing does happen.
Disabled people and the disabled organisations who will be involved in the review will be on the case. Therefore, I feel reasonably confident that we will get there. My biggest worry concerns the timeframe and the need for further legislation. I still hope that if the Government get to the right answer in terms of the allocation of benefits to families with disabled children they could make adjustments to regulations while we await new legislation. That matters a great deal. We should not leave families newly coming on to these benefits severely damaged and, I think, cruelly treated. With that, I beg leave to withdraw my amendment.
Lord Freud
That this House do not insist on its Amendments 2, 3 and 26 to which the Commons have disagreed for their Reasons 2A, 3A and 26A.
LORDS AMENDMENTS 2, 3 AND 26
Lord Freud
We have debated this measure at length and I am grateful for the intensity and conviction of those who have spoken both in support of the measure and those who have challenged the Government. I acknowledge that the noble Lord, Lord Best, remains concerned about our proposals to reduce housing benefit and universal credit for working-age claimants living in social sector properties who are under-occupying their accommodation. Before I go into the detail, I remind noble Lords that we have announced an additional £30 million of funding for discretionary housing payments from the 2013-14 period, aimed at those living in adapted accommodation—disabled people who need those adaptations—and for foster carers.
I remind noble Lords of the core argumentation. We do not think that taxpayers should be expected to meet the cost of somewhere approaching 1 million spare bedrooms, a cost of around £0.5 billion every year. Clearly this is unfair, or certainly different, to those in the private rented sector who receive benefits based on their household need. Based on our estimates, the original amendments could potentially reduce those savings by around £300 million, in addition to the £30 million to which I referred. That is real money. Maybe I should—or should not—remind noble Lords of the message from Moody’s. One of the things they make clear is that the Government’s “necessary fiscal consolidation” is key in stopping that potential downgrade.
Lord McKenzie of Luton
My Lords, the Government have moved in a number of ways on the issues that have been returned from the other place. Along the way, they have also accepted a number of other changes that were pressed on them by your Lordships’ House. However, the Bill remains unchanged in some of its most unacceptable provisions, not least of which are those relating to underoccupancy. That is why we support the amendment in lieu, which was moved with such precision and expertise by the noble Lord, Lord Best. As we have heard, the amendment is less ambitious than that previously accepted on Report, reflecting our obligation to take account of the financial strictures of the Government. However, the amendment is not cost-free and cannot be if it is to provide protection for hundreds of thousands of households that, on average, could see their income fall by £14 a week.
It is clear that, under the guise of addressing underoccupation, the Government seek to make further savings on housing benefit on top of the multiplicity of restrictions—the CPI uprating, the 30 per cent percentile, the rent and size caps and the shared-room rate—that are already in play. Savings from some of these are being made in parallel with the benefit cap. The Government’s stated aims for the underoccupation rules are to encourage greater mobility within the social rented sector; to make better use of the available social housing stock; to improve work incentives; and to curtail housing benefit expenditure. The amendment in lieu addresses each of these issues. It is clear that, should a suitable offer of accommodation be forthcoming, there is an expectation that an underoccupying tenant should take it up, whether or not they have only one spare bedroom or fall into any of the exemption categories listed. If they did not, the housing benefit reduction would ensue. What is suitable would have to be defined in regulations and would have to reflect the circumstances of the household, including its need for adapted property, transport links, access to support services and appropriate schooling.
However, there is no merit at all in an economic incentive to move to smaller properties when there are no smaller properties to which people can move. Therefore, the amendment provides that, with no suitable alternative offer, the underoccupation deductions—the room tax, in the terms of the noble Lord, Lord Best—would apply unless there was no more than one spare bedroom and one or more of the other exemption criteria applied. As for improving work incentives, this can surely have no application for those who have no work requirement placed upon them, for example because of a severe disability. These are people who the Government themselves recognise cannot work and should not be expected to work, so what is the purpose of an economic work incentive for them?
We know that disabled people face extra costs in their daily lives and that it is harder for them to take the hit of reduced housing benefit. Indeed, the Government have already recognised this in the benefit cap by exempting certain categories of individuals from loss of housing benefit or universal credit. These are the self same categories listed in paragraph (b) in the amendment, mainly those on DLA or PIP. War widows or war widowers are similarly included in the exemption to parallel the arrangements in the benefit cap—no more, no less. The noble Lord, Lord Best, referred to the sources of funding on offer to deal with foster caring. It is hoped that the Minister will be able to dispel any suggestion that the new money to which he referred is just being cynically recycled. The Government’s other solution is for people to take in paying lodgers. Perhaps the Minister can say what assessment has been made of this possibility.
We agree that underoccupation in the social housing sector should be addressed and clearly the lack of social housing and the need to build more is part of that, but it is clear that the Government do not see these provisions as a route to doing so. Their assumption is that most people will not move and will take the hit and that is how the Government will get their savings. These amendments would stop them getting those savings from the most disadvantaged in our country. We support them.
Lord Freud
My Lords, the amendment in lieu of the noble Lord, Lord Best, seeks to exempt certain categories where the tenant underoccupies by one bedroom and no suitable alternative accommodation is available, those not required to seek work, carers, disabled people, war widows and foster carers. Our estimate of the cost of this amendment is slightly lower than that of the noble Lord. He suggested that it was £150 million. We estimate that it would cost up to around £100 million in 2013-14. We have already announced an increase of £30 million in the discretionary housing payments aimed at some of these categories—those living in adapted properties and foster carers. Others in vulnerable situations can also apply to the fund where they have difficulty meeting the shortfall.
I say to my noble friend Lord Kirkwood that that £30 million is an ongoing rate. The amount will be kept under review to see whether it is meeting the level of demand in different areas. We set the amount at £30 million based on the numbers likely to be affected by the measures. We think that the £30 million could help about 40,000 cases based on the average reduction of £14 a week. That figure is based on the group of 35,000 potentially affected claimants who are wheelchair users and live in accommodation that has been adapted to suit their needs, although, of course, not all of these would need to apply for a discretionary housing payment. We estimate that around 5,000 foster carers, including those in between assignments, could be affected by the measure.
My noble friend Lord German referred to the type of housing that would be affected by the measure. We decided to tackle this matter through discretionary housing payments, as introducing exemptions and classification is very difficult in practice. Therefore, we are leaving it to local authorities to make some very tough judgments on where it makes sense to offer that support as they have a lot of local knowledge. Regrettably, £100 million is a lot of money in the present climate, even though it is less than the £150 million figure estimated by the noble Lord, Lord Best. Clearly, it is difficult to agree amendments and send them to another place when they have such significant costs attached to them.
In summary, we believe it is right and fair to proceed with the measure as it is in the Bill. We will apply a percentage reduction of 14 per cent for those underoccupying by one bedroom and 25 per cent for those underoccupying by two or more bedrooms. That comes in in April 2013. The noble Lord, Lord McKenzie, asked me to disavow any cynical recycling. I am in a position to do that, as we announced a range of these reductions of between 10 and 15 per cent for one room and 20 to 25 per cent for two rooms. When I fixed the rates in December, I was able to do that within the bands that we had set.
Lord McKenzie of Luton
Is the noble Lord saying that those rates would be lower if the £30 million had not been made available?
Lord Freud
My Lords, we have to look at these things in the round, as we did with the Bill. The reality is that we had a range and we set the provision at an affordable level within that range. Noble Lords may argue that saving money is a cynical thing to do but, as I say, we had a range and we set the provision within the range. We have found the money to ameliorate the measure through the discretionary housing payments process.
My noble friend Lord Newton made an important point about changing circumstances. We have rules within housing benefit to protect people when their circumstances change. Among those changes are going into hospital, being on remand and the death of a member of a household which would result in a reduction in housing benefit. Those same rules will apply in the social rented sector and provide protection for such claimants. For example, housing benefit currently provides 12 months’ protection from rent restrictions where there is bereavement, so there are ways of dealing with such circumstances.
The noble Baroness, Lady Hollis, referred to couples who have health problems. I re-emphasise the point that they would not be pensioners by definition as they are excluded from this measure, so we are talking about couples of working age. Clearly, if there is real difficulty in that regard and separate bedrooms are required, where discretionary housing payments would be considered, and where the couple required an overnight carer, whether non-resident or otherwise, the size criteria would be increased to provide additional room. However, we should consider what happens to people who are renting in the private sector. These situations are already faced by more than 1 million people—I think it is 1.3 million people—renting in the private housing sector.
This is part of a package of reforms to keep the housing benefit bill under control. I have never tried to disguise that in any way. This is a way of trying to control the housing benefit bill that is moving up towards £26 billion, if we do not take the £2 billion of savings across the piece as we are planning to do. That is the saving that we are trying to make within the social rented sector as opposed to the private sector. We are trying to sort out our budget deficit, and we need to make sure that we spread that load right across society in as fair a way as we possibly can.
We realise, obviously, that we need to support tenants, their advisers and housing providers in preparing properly for what is a very substantial change happening in April 2013. Work is well under way to support social housing providers, local authorities and other government departments. An important point raised by my noble friend Lord Kirkwood is the impression that it is all happening on one day. It might be happening on one day, but in practice there is a year before it culminates in which we are aiming to get a very smooth implementation process. We are working closely with the stock team, which is part of the Chartered Institute of Housing, funded by the GLC. We are putting a tool-kit out for local authorities, which involves working on who will be affected; advice on data sharing; allocations policy; tackling worklessness; taking in lodgers; letting spare rooms; reducing arrears; national home-swap schemes; affordable rents; and alternative housing options. We are working on all those areas.
A behavioural response is required right across the piece on something like this. We are looking to help claimants. Those who can must look for a job. Those who are in work can increase earnings by getting more hours. We have discussed taking in a lodger, moving to a smaller property or moving into the private rented sector. Landlords need to have responses. They need to give permission to accept lodgers, identify those affected, communicate changes, train staff, review their allocation policies, look at where the discretionary housing payments need to be made, and so on. There is a range of things on a substantial scale that need to happen, just as the Government have to do a huge amount of work to ensure that they do happen.
We are not expecting the 670,000 people who are affected to move. As I have tried to describe, there are a number of ways in which claimants can make up any shortfall and stay where they are. So I ask the noble Lord to withdraw his amendment.
Lord Best
My Lords, I am extremely grateful to people from all parts of the House who have joined in this debate. My thanks go to the noble Baroness, Lady Hollis, who has been tireless in supporting this amendment and so many others during the course of this Bill; to the noble Lord, Lord Newton, who has been a hero in bringing common sense and good judgment to this Bill at all kinds of stages; to the right reverend Prelate the Bishop of Ripon and Leeds for his support; and to the noble Lord, Lord German, who raised a number of important points. Perhaps I could respond to his point that 1 million bedrooms—I am not sure whether he actually quoted this number—are underoccupied in the social housing sector, and that it would be good if we could get those used. In this country there are, I think, 6.8 million empty bedrooms in houses where there is already one spare room. We have lots and lots of spare rooms, but they are in the owner-occupied sector, and nobody is suggesting that we levy a bedroom tax on the occupiers in the owner-occupied sector—quite rightly; I absolutely would oppose that. However, on council estates now, people who have exercised the right to buy and are homeowners are living next door to tenants in identical circumstances. One of them will be penalised and one of them will not.
I am also grateful to the noble Lord, Lord McKenzie of Luton, for his contribution and indeed to the noble Lord, Lord Wigley. I single out the noble Lord, Lord McKenzie of Luton, because he has brought the expertise of a previous Minister on this key issue to all of our debates and has been more than helpful to me in my formulation of the amendments that we have before us today.
I was greatly encouraged when the Minister said that the cost of this has come down from the earlier amendment, which found favour with your Lordships and did not do so badly in the other place. The cost has come down from some £300 million to about £100 million. I think the Minister said up to £100 million. This, I agree, is serious money, but it is set against the savings in housing benefit that the Minister mentioned again that he is seeking to achieve of over £2 billion. The £100 million is for particularly vulnerable and low-income households. I was not convinced by the argument from our earlier debates in Committee for the increase in the amount that will be charged each week. It will rise from £13 per week to £14 per week, which happens to be the amount required to find a further £30 million of discretionary housing payments. That, I fear, has meant that we are robbing Peter to pay Paul. We are charging another 50 quid to everybody else to pay for the ways in which we can exempt certain people, people in houses that have been expensively adapted, and indeed those who regularly have foster children in the home. That is excellent, but it is being paid for by pushing up the total bedroom tax for everybody else to £728 a year. That is three-and-a-half times the winter fuel payment, for example. That is a serious amount for people on the lowest incomes to find.
I do understand the pressures on the Minister to help the Government achieve deficit reduction, but I see it as incumbent on us in this House to take a stand, even a modest one, to draw a line where deficit reduction is at the expense of many thousands of the very poorest households. We have to say: so far, and no further. Applying the bedroom tax to these vulnerable groups, set out in this amendment, where there is no opportunity for those on very low incomes to avoid the tax, is going too far. I wish to test the opinion of the House.
Lord Freud
That this House do not insist on its Amendment 4 to which the Commons have disagreed for their Reason 4A.
LORDS AMENDMENT 4
“(4A) Regulations shall not permit any reduction of housing benefit or amounts included for accommodation in an award of universal credit in respect of under occupation, deemed or actual, where—
(a) the landlord is a local authority or a registered provider of social housing, and
(b) any such landlord is not able to offer suitable alternative accommodation which would not cause a person to under occupy.
(4B) Regulations may make provision for determining when accommodation is suitable for the purposes of these provisions.”
Baroness Hayter of Kentish Town
My Lords, as we have heard, without our amendment, the Bill will deny thousands of disabled people aged under 20 the right to a non-means-tested ESA when they reach working age. These young people are exactly those whom we discussed in the first amendment—disabled since either birth or childhood. When they grow up they will no longer be entitled to a benefit in their own right but instead will have to rely on means-tested benefit, depriving them of an independent income as an adult. As it stands, even those young people unlikely ever to be able to work will never be entitled to non-means-tested benefits as they will never have the chance to build up a national insurance contribution record. That means that those with early-onset conditions will for ever be disadvantaged compared with those who become disabled later in life and have therefore had time to build up enough contributions to receive non-means-tested benefits.
Clause 52 abolishes the right of people under 20 with work-limiting conditions to be treated as if they had met the NI contributions. I wonder whether our colleagues in the Commons really meant to reject our amendment in the knowledge that it affects young people, some with profound disabilities from childhood, and those with the greatest disadvantage in the labour market. The Bill removes their access to an independent income and reduces their chance of achieving independence. As my noble friend Lady Lister said, it was not to save money—at least that was not listed as a policy intent in the Government’s paper. Therefore, it can only be about changing behaviour, but how do these youngsters change their disability? Most of them would love to work but it is the behaviour of others, particularly understanding employers, which will be the biggest determinant of whether they can find work.
As my noble friend Lady Lister said, these changes are, for the country, tiny—£17 million cumulative—but the impact on young disabled people will be huge. On average, 70 per cent will lose about £25 a week, but 10 per cent of those 15,000 youngsters will lose entitlement altogether, because they have either savings or income from another family member. The Minister spoke earlier about inheritance. I do not know people who go around inheriting lots of money; maybe he does. The idea that because some people may inherit, everyone should be denied access to benefit, I find very strange.
The impact assessment also does not look at the effect on other family members. The introduction of a means test will undoubtedly decrease the incentive for anyone living with a young disabled person either to work or to build up savings. Indeed, these young disabled people will actually have a huge negative dowry to bring into any relationship, because the earnings of the person whom they would love to move in with will immediately kick in against the means-tested benefits of these young disabled people.
We do not know—we cannot work it out from the income assessment—exactly which people will be affected. However, the figures for those under 16 claiming DLA show that 41 per cent of them do so in relation to a learning disability. It is reasonable to assume that a large proportion of the people affected will also be in this group. As my noble friend has said, this is not the amendment she wanted to table. While we must accept that the Commons has given its decision on this provision that removes the right from these people, we ask the Government to monitor its impact, if only to assure both Houses that our fears for these young people are not justified.
The Minister has said that he will review all such policies and impacts of the Bill. We hope as we begin the ending, if you like, of this period of the Bill that the Government can say yes to this very small amendment, which only writes in that such a review should take place.
Lord Freud
My Lords, the short answer is that we will monitor it. However, I do not accept the amendment and I will explain exactly why. It does not work in the way that is intended. It is designed for us to have a full formal review. As noble Lords will recognise, we do have reviews and we treat them very seriously. If you look at the example of the Harrington review of the WCA, you see that they can be of immense value in the development of policy.
The way this one would work is that we would have a review one year after the measure came into force. The amendment would require that that report—a big formal report—is laid before the Houses of Parliament within three months, an incredibly rapid timescale as I am sure that the noble Baroness will recognise. We will monitor this and use evidence from a large number of sources on the experiences and outcomes of those affected. We will use DWP administrative datasets to monitor the trends in both the caseloads and in the level and distribution of benefit entitlements.
I want to put into context the huge paraphernalia that this amendment would require in practice. We are looking at the region of 15,000 claims to ESA youth every year. We expect 10 per cent of those not to qualify for ESA—not to be in the system. That is 1,500 people. It is not appropriate to have on the Bill a major Houses of Parliament review when the numbers are so small. The timing is not right. One does not look at a policy like this only once; one needs to keep it under review and look at it over a number of years, not do it in an inflexible way. I am trying to say that I buy the point that we need to watch it, but I do not think this amendment works. We can evaluate detailed specialist research. Broad surveys will be useless. It is too small and we will not pick up anyone if we do it on the FRS. It will be five people if we do it like that. We will have to review it very differently and then use it to inform how we guide our future policy direction and, potentially, operational improvements.
I do not wish to row about benefit tourism. The reason that it came through late, to be blunt, is that my blood was chilled towards the end of last year when I started working through some of this stuff. That is why I missed it in November. I had not really absorbed the implications. I do not think I would call it a panic—
Lord Lester of Herne Hill
I was troubled when the noble Baroness, Lady Lister, alleged that the use of EU law was a pretext—I think she said pretext—which means it was a kind of sham. May I take it that the analysis given about the decision of the European Court of Justice was based on legal advice and that what has been said explaining EU law is the Government’s understanding on the basis of EU advice as to what that judgment means and its effect, or is it some kind of political pretext?
Lord Freud
No, my Lords. The department has an international wing that monitors this matter very closely and is on top of it. It has lawyers and also takes advice from lawyers—although formally I am not allowed to say that we ever consult lawyers internally for advice. I think that is the position. All I can say is that there are many ramifications to this. I am not playing games. I am quite worried about the implications for our whole benefits system.
Baroness Hollis of Heigham
In my experience in the department, over eight years and with a dozen Bills, the legal advice was usually gold-plated. When I scratched it, I realised that we were going over the top. Most outcomes that were predicted on such things as pensions did not occur. I urge the Minister to adopt an appropriate degree of scepticism toward the legal advice that comes his way.
Lord Freud
My Lords, I am always delighted to take the advice of someone who occupied my room in the department for so many years—although I think that there is a progression and that ignoring it early on does not mean that it will not come back. I will not go into this in too much detail. I am sure that the noble Baroness did not mean to say that I was making it up, because I was not.
Baroness Lister of Burtersett
Before the noble Lord moves off the point, will he give us the assurance I asked for that, whether or not this is a pretext this time, the argument will not be used to bring forward proposals to abolish attendance allowance, DLA or PIP on the grounds that it is the only way to deal with such cases?
Lord Freud
My Lords, that is an enormous question. In this context, I am in no position to give the undertaking. We will have to look very carefully at how we frame our benefits if we do not want them all to be very freely and widely used. That is all I am saying. How we will frame them in the years ahead I do not know. I have not started to think about it. Clearly, we are going through a huge exercise to introduce PIP and it is very unlikely that anything will reverse it for many years. I cannot answer the question because it is too big. However, these are real concerns.
I will go back to a narrower point. We want to modernise and simplify the welfare system. We want to avoid duplication of provision, and to redefine the basis of the contract between the individual and the state. We need to do that in advance of universal credit coming in. We want to place claimants on the same basis as everyone else. All those who do not qualify for contributory benefits will qualify for income-related benefits. The effect in practice will be a streamlined system for these youngsters to receive passported benefits.
The amendment does not work, but I take the point. We will monitor this very closely and keep the outside world, including the Chamber, informed.
Lord Freud
That this House do not insist on its Amendment 17 to which the Commons have disagreed for their Reason 17A and do agree with the Commons in their Amendment 19A.
LORDS AMENDMENTS 17 AND 19
Lord Freud
My Lords, there has been extensive debate in both Houses on ESA provisions. Many points were made and we made a number of changes as a result, which I know that noble Lords acknowledge. Amendments 17 and 19 would increase the time limit for claimants receiving contributory ESA in the work-related activity group from the proposed 365 days to a minimum of 730 days. This would have to be prescribed in regulations. I fully recognise the concerns expressed by noble Lords who supported the amendments, in particular their concern for claimants suffering from cancer. We will debate the cancer point again in a while. On time limiting, I stress again that it will affect only contributory ESA claimants in the WRAG who would normally expect to be able to return to work with appropriate support. Time limiting will not apply at all to claimants who are placed in the support group. They will continue to receive unlimited support for as long as they need it.
We will come on to this in detail later, but I should briefly add that around two-thirds of those with a primary diagnosis of cancer who complete their WCA are placed in the support group and would therefore be unaffected by our time-limiting proposals. Additionally, claimants with the lowest incomes will be in receipt of income-related ESA and would therefore also be unaffected by this measure.
We have had a number of debates about whether the time limit is arbitrary. I do not accept that it is. A number of countries apply a similar limit to that provided by this Bill. The Government need to strike a reasonable balance between the needs of sick and disabled people claiming benefit and those who have to contribute towards the cost—which I acknowledge includes disabled people who pay their taxes. I believe that a time limit of one year strikes the right balance between restricting access to contributory benefits and allowing those with longer-term illnesses to adjust to their health condition and surrounding circumstances; it is double the time allowed for contributory JSA in recognition of that fact.
There is, of course, a strong fiscal case for this change. We estimate that this amendment would reduce the total savings by around £1.6 billion by 2016-17. We have discussed this again and again, but this is a very substantial figure, and this is one of a number of very difficult decisions the Government have had to make in order to stabilise the financial position. I beg to move.
Motion E1 (as an amendment to Motion E)
Lord McKenzie of Luton
My Lords, Amendments 17B, 17C, 17D and 19B relate to the time limit for the contributory employment and support allowance, and recommend that this can be increased by secondary legislation in the future.
The time-limiting of contributory ESA to just 365 days for those in the work-related activity group is one of the most indefensible provisions in the Bill. It is all about saving money and will bring what my right honourable friend Stephen Timms referred to in the other place as,
“a financial catastrophe for a very large number of people”.—[Official Report, Commons, 1/2/12; col. 836.]
I remind noble Lords that the number affected will rise by 2015-16 to something like 700,000, 40 per cent of whom will not be entitled to income-related ESA. It will hit some 100,000 claimants in a matter of a few weeks when they see their ESA disappear literally overnight, with losses in income of up to £90 a week and over half of those affected in the lowest three income deciles. The very manner in which this is being introduced, including the assessment period and time already on the clock, demonstrates that this is not about fairness but about money.
The arguments against this one-year limitation have been well rehearsed and I do not propose to develop them in detail again this evening. They were subject to a powerful amendment moved by the noble Lord, Lord Patel, on Report. The restriction has no credible evidence base, it undermines the contributory principle, it creates another couple penalty, and it simply fails to take proper account of the time that many will need to overcome their illness or disability so as to be able to access employment. The policy potentially overrides the WRAG conditionality, and the noble Lord, Lord Patel, is rightly pursuing the situation for cancer sufferers. We look forward to supporting him in his endeavours shortly.
Noble Lords sent a strong message to the House of Commons seeking a minimum of two years for the restriction, and for the restriction to be embodied in secondary legislation so that an evidence base could be brought to bear. That message fell on stony ground and the Government have brought the shutters down on our original amendment by claiming financial privilege. Of course, they did this with the full support of the Lib Dems, despite their party policy to oppose arbitrary time limits, but this is a reality that we have to face, if not forget.
In proposing this amendment in lieu, we do not abandon our determination to see this policy based on evidence; nor do we accept the 365-day arbitrary limit. Securing that an upward revision of this limit can be achieved by secondary legislation at least keeps the cause alive. The Minister has claimed international precedents—as he did a moment ago—as part of the evidence base for this policy. Perhaps we can ask the DWP to publish that research so we can share the benefit of it.
Nevertheless, I have some expectation that the Minister will feel able to accept this amendment and I thank him for his consideration if this is the case. For us, this is not the end of the issue.
Lord Freud
My Lords, Amendments 17B, 17C, 17D and 19B, tabled by the noble Lord, Lord McKenzie, mean that although a time limit of 365 days will still be applied to contributory ESA claimants in the WRAG, including those claiming under the youth provision, there would also be an order-making power that would allow the number of days to be increased in the future.
I thank the noble Lord, Lord McKenzie, for his amendment as this has given me the opportunity to consider again an order-making power for time-limiting. We have discussed at length our rationale for setting the time limit at 365 days. We have listened carefully to noble Lords’ concerns about this time limit. We have always said that, for clarity, we believe it is right to have the number of days specified in the Bill and that the time limit should not be subject to secondary legislation.
However, this amendment achieves an excellent balance of the two. A time limit of 365 days is still specified in the Bill, but with the added flexibility to increase the number of days by order. We welcome this amendment and I commend the noble Lord, Lord McKenzie, for tabling it.
To sum up, we have listened to the concerns raised by noble Lords and have made amendments to ensure that disabled people whose condition deteriorates are able to re-qualify for contributory ESA if they would be placed in the support group. This demonstrates our continued commitment to supporting those with the most severe health conditions or disabilities.
The noble Lord, Lord McKenzie, has tabled very well considered amendments, so I urge noble Lords to accept them. However, I need to make clear that accepting these amendments in no way changes the Government’s policy on the time-limiting of contributory ESA. The limit will remain 365 days. These amendments simply mean that a future Government—of any hue—would be able to change the limit by order, as well as by further legislation.
Lord McKenzie of Luton
My Lords, I am very grateful to the Minister for his acceptance of those amendments. He helped to draft them so he should accept them! I hear what he says about the Government sticking to their 365-day limit, but we will continue to work on him and his colleagues and hope to change their minds before we have a next Government.
Lord Freud
That this House do not insist on its Amendment 18 to which the Commons have disagreed for their Reason 18A.
LORDS AMENDMENT 18
(a) where a person is receiving treatment for cancer when entitlement shall continue for so long as the person has (or is treated as having) limited capacity for work; or
(b) the person has (or is treated as having) limited capacity for work as a consequence of a cancer diagnosis.”
Lord Freud
My Lords, I beg to move Motion F. If I can just get to the right place—
Lord Freud
Thank you very much. I was about to launch into the wrong thing. This is about the ESA provisions for people with cancer, which has been a very sensitive issue. We have listened very carefully to those concerns and made a number of changes to clarify our policy intent to ensure that vulnerable people, such as those with deteriorating conditions, are protected.
The intended purpose of Amendment 18 means that no time limit would be applied to contributory ESA claimants who are receiving treatment for cancer, or have a diagnosis of cancer, for as long as they have limited capability for work as a result. This is clearly a sensitive topic, and we have said all along that we want to do the best for individuals suffering from cancer.
I have to repeat something I said a few minutes ago: that most individuals with cancer are placed in the support group at the outset of their treatment. This recognises the serious effects that cancer treatment can have on individuals.
We have been working closely with Macmillan to improve how the WCA assesses individuals who are being treated for cancer, and we are now consulting on our proposals. While it is important that we do not pre-empt the consultation, I can assure noble Lords that our abiding aim is to ensure that individuals undergoing or recovering from cancer treatment are not subject to unnecessary assessment. A process is in place to ensure that appropriate evidence is gathered to allow those who are unable to work due to the effects of their treatment to access the support group. In this way I believe that we can ensure that people with cancer are treated sensitively and receive the support that they need. I beg to move.
Lord Freud
My Lords, I need to start by paying tribute to the noble Lord, Lord Patel, who has done some astonishing work in this area in bringing the issues vividly to life. We certainly have learnt and have appreciated some of the things that he has said. I hope that I will be able to give him and the House some reassurance about the progress we have made on this.
As noble Lords will know, we are committed to improving the WCA so that it accurately identifies the individuals who should be in the support group where there is no time limiting and no questions. That is why we asked Professor Harrington and Macmillan Cancer Support to look at the way in which individuals being treated for cancer are assessed. That is why we have proposed changes and those changes are what we are consulting on now.
The intention of our proposals is to introduce a presumption that most people being treated for cancer should be in the support group unless the evidence indicates that, exceptionally, the debilitating effects of treatment are likely to be more limited. We would expect this to increase the number of individuals going into the support group and to reduce the number of people called to attend a face-to-face assessment. We have been working closely with Macmillan Cancer Support as part of the consultation and to understand if, following the consultation, there are further areas where improvements need to be made.
I can report to noble Lords that our discussions with Macmillan Cancer Support have been constructive. As a result we have reached agreement in the following three areas, which I hope will deal with some of the searching questions raised by the noble Lord, Lord Patel. First, we have agreed that following the consultation we will work with Macmillan Cancer Support to develop the detailed guidance that underpins the regulations. Our aim is that the guidance should clearly specify the evidence required from a healthcare professional that would confirm presumption and allow immediate access to the support group without a face-to-face assessment. In our initial discussions we have agreed with Macmillan Cancer Support that evidence would be accepted from an oncologist, a GP or a specialist cancer nurse.
Secondly, we have agreed to review the guidance and process for people who are in the work-related activity group but whose condition deteriorates or relapses during the course of treatment so that they can access the support group quickly and smoothly. We would expect this to speed the process and reduce the need for face-to-face assessments. Thirdly, we have agreed with Macmillan Cancer Support to review the guidance for people who are in the recovery period following cancer treatment. That will ensure that individuals can remain in the support group for as long as appropriate during their recovery. Combining those three proposals will greatly improve the way we assess and support individuals suffering from cancer and reflect the particular challenges they face as a result of both the condition and the treatment.
As a result, we would expect that the majority of cancer patients are likely to be placed in the support group for the first six months while they undergo treatment. Following this, many are likely to have a further period in the support group while they recover from the residual effects of treatment. It could easily be up to a year therefore for many people with cancer before the clock starts running in relation to time-limiting. I know that the chief executive of Macmillan Cancer Support has welcomed these proposals and we look forward to working with his organisation following the consultation to help implement our proposals and to support people with cancer, where appropriate, to return to work.
Finally, in response to the noble Baroness, Lady Morgan, on the WRAG, we are looking at this in the round and it would be unwise to pre-empt the consultation. But, clearly, we would want to be in a position where those in the WRAG are genuinely able to do work-related activity. As I have said, we now presume that most people will end up in the support group for an extended period. On the basis of what I have said, I hope that the noble Lord, Lord Patel, will feel able to withdraw his amendment.
Lord Patel
My Lords, I thank the Minister for his very positive response. Like the noble Baroness, Lady Morgan, I pay tribute to the work Macmillan Cancer Support has done for cancer patients. To summarise, the Minister has been clear in accepting that the WCA assessment will be improved, that there will be a presumption that cancer patients in treatment will be in the support group, that discussions with Macmillan will continue following the consultation, and that guidance will be developed based on evidence from healthcare professionals to allow cancer patients either to remain in the WRAG or to go into the support group. He has also agreed to review guidance for patients in the WRAG so that if they deteriorate they can access the support group and to review guidance on the period of recovery following treatment. I have to say that it must be quite unusual to be content with the outcome on amendments on two successive days before two different Ministers. I thank the Minister very much for his summation. Cancer patients will be relieved. I am happy to withdraw the Motion.
Lord Empey
My Lords, I have some remarks on Motion G2. I recall vividly that in the Autumn Statement there were indications that regional pay was to be examined and the Chancellor had asked regional bodies throughout the United Kingdom to report to him by next July on the issues of regional pay. From a regional perspective, I have to say to the noble Lord, Lord McKenzie, that I have great reservations about his proposals. While a cap is by definition a blunt instrument, and there always has been a specific London issue in pay for as long as I can remember anyway, if we go down the route of establishing a body to run around the regions—as the noble Lord, Lord Newton, has pointed out with his usual typical incisiveness, the variation is not only between regions but within regions and within cities, streets and districts—then I fear that we open the Pandora’s box not only of regional pay but of regional benefit, and sooner or later some people are going to say regional taxes. I fear that the amendment could inadvertently have a perverse effect on all of us, particularly in the regions. I understand that there is very much a London issue, but within regions there are vast variations.
If you want to encourage people to move to where they are more likely to get work, that tends to be in densely populated areas—that is just the reality of life. This measure, however, portends a reality where you could discourage people from going somewhere that they are more likely to find work. I fear that if we go down the road of the amendment, we could open up a range of issues in the regions relating to pay, benefits, taxes and the whole relationship that exists there.
When I heard the noble Lord’s colleague announce this policy in the other place some time ago, I was greatly surprised. Many of his colleagues spoke to me after I had made the point about regional pay and said, “Yes, we can see this is coming”. However, this would actually accelerate the process, so I hope that the noble Lord might not move his amendment and might instead reconsider the policy as it might apply to the regions.
Lord Freud
My Lords, in my opening remarks I described the measures that the Government are putting in place to ensure that the cap operates fairly. I explained that the exemption of people in the ESA support group ensures that the cap affects only people who, taking account of their health and any disability, can reasonably be expected to do work or work-related activity. I explained that the nine-month grace period will ensure that those who have been in work for 12 months or more will have time to find alternative employment or consider alternative options before the cap applies.
I have been asked a series of questions and I shall try to deal with them rapidly. On the question where the money is coming from, I think we shall leave that to the Budget.
Where one member of a couple satisfies the criteria for the grace period, yes, it will apply. The grace period will apply where either member of the couple meets the criteria.
I was asked which payments would be ignored. The noble Lord, Lord McKenzie, went through what I said in Committee and I do not think there is any reason to change any of that. We have to work out the exact nature of the work exemption but, in principle, I see no reason why the grace period should not apply when hours are reduced.
The question of the noble Baroness, Lady Drake, is so detailed that we need to wait for the regulations. That is a very good reason not to put some of this stuff in primary legislation.
An important point was raised by my noble friend Lord Kirkwood about monitoring people. We will monitor these cases very closely and keep track of their destinations. We already know who they are and will engage proactively with them from now on.
The right reverend Prelate the Bishop of Ripon and Leeds and the noble and learned Baroness, Lady Butler-Sloss, raised a question about kinship carers. In practice, the grace period is particularly helpful for kinship carers. We have the conditionality issues. Having this £80 million on a discretionary basis means that we can target those families of exactly the kind that will need such support. Therefore, the way that we have done it is rather more satisfactory in that area.
The right reverend Prelate raised the question of what a benefits system is for. We are constructing the universal credit to make a modern benefits system that does what we need it to do. He can take that as read.
Amazingly, I think I might have answered all the questions. The right reverend Prelate mentioned sweetness and light in relation to Motion G1. Fundamentally, I think that there is sweetness and light. I hope so, in that we are providing a grace period through regulations. We have all the powers that we need to do it, so in practice this amendment is unnecessary. It is sweetness and light in that sense and I hope the Motion will be withdrawn.
To be absolutely honest, there is less sweetness and light over Motion G2. I am resisting having some political knockabout on this. I know that it is not proper in this Chamber; let us leave that to another place. However, I find it very hard to think about having regional limits set by a new quango. My noble friend Lord Newton and the noble Lord, Lord Empey, have made the point that this could be very confusing and complex. If the noble Lord were sitting on my side of the Table at some future point, I would give him some advice: “You don’t want to do this”. Looking at it with a slightly stricter hat on, if we were to vote the Motion through it would mess up and delay the application of the cap. We are talking there about real money. We simply could not make the saving of £200 million a year because it would be such a complicated thing to introduce. Therefore, I hope that Motion G2 will be withdrawn. My mouth will be open if it is not.
There is an important principle in this debate. It is not fair that families on benefits receive more than the average working family. It is not fair to taxpayers. Indeed, it is not fair to benefit recipients who are trapped in a cycle of welfare dependency. Therefore, I urge the noble Lord not to press either Motion G1 or Motion G2.
Lord McKenzie of Luton
My Lords, I thank the Minister for his detailed responses, as ever. It is all sweetness and light as far as Motion G1 is concerned. It was tabled to get the very detailed answers that we got from the Minister and I thank him for that. I thank all other noble Lords who have participated in this debate. It is always good to hear from the right reverend Prelate the Bishop of Ripon and Leeds, who brings us back to issues of homelessness and vulnerable people. It is all too easy for us to forget about them in this environment.
The noble Lord, Lord Kirkwood, expressed his view that he was less than pleased with the benefit cap. I am well aware that he is not alone in that view. Interestingly, he referred to the cap as a sticking plaster. There is an interesting issue over whether the Government see it as a continuing part of the benefit system. We took it that they did, which is why we made some of our proposals, but maybe it is just a short-term measure.
I thank my noble friend Lady Drake for her support. The noble Lord, Lord Newton, asked about how local we would get in all this. Fundamentally, Motion G2 tries to highlight that rent is the big issue in all this. There are big disparities, particularly the London phenomenon, and rent will never be equalised across the country. I see and understand the potential risks in that, to which the noble Lord, Lord Empey, and others, including the Minister, referred. However, the intent is to focus on rents and that huge disparity. In the instance that I cited, the disparity is so big that how you make one cap fit all on an ongoing basis, without having to pile in more money every year to deal with the effects, is a real issue. The Government will have to face that in the months to come.
However, I should make clear that it is not my intention to press the amendments in Motion G1. On Motion G2, I am bound to say that my colleagues in the other place were denied the opportunity to vote on this. Therefore, I intend to test the opinion of the House.
Lord Freud
That this House do not insist on its Amendment 73 to which the Commons have disagreed for their Reason 73A.
LORDS AMENDMENT 73
“(3) In section 6 of the Child Maintenance and Other Payments Act 2008 (provision to allow charging of fees by the Commission), after subsection (2) there is inserted—
“(2A) Nothing in regulations under subsection (1) shall impose a liability on a parent with care for the payment of fees to the Commission where that parent has taken reasonable steps to establish whether it is possible or appropriate to make a maintenance agreement (within the meaning of section 9 of the Child Support Act 1991), and where, having taken such reasonable steps, it is either not possible or not appropriate for the parent with care to do so.””
Lord Freud
My Lords, clearly I am very aware of the strength of feeling that has featured in previous debates on child maintenance, and I look forward to hearing the views of noble Lords today.
Perhaps I may start from a rather different position from the one I took in the debate when we last looked at this issue. I shall quote the right honourable Frank Field, who is an acknowledged expert in this area. Even though he sits on a different side, he makes a point that is absolutely smack-on. He said:
“Is not the really big change that we are discussing the fact that when the CSA was first established, the maintenance moneys went to the Treasury to offset what taxpayers were putting up because, generally speaking, fathers were not prepared to do so, whereas now that money remains with the family? Is it not reasonable, in such circumstances, if people are going to get a top-up to their benefit that they should contribute to the cost of gaining that extra money? On the timing, should we not charge people once they are getting the money, not before?”.—[Official Report, Commons, 1/2/12; col. 910.]
That quote highlights the central point to the debate. We need to look at the proposed charges in the context of all the other financial support that the Government provide for lone parents. Child maintenance is only one aspect of that support.
I have made some rough calculations to give noble Lords a sense of the relative orders of magnitude involved. In the 12 months to December 2011, the CSA collected or arranged maintenance of more than £1 billion. However, by far the largest amount of money going from the Government to support lone parents is through the benefits and tax credits systems. The benefits system provides well over £5 billion of support to lone parents, and the Government provide more than £10 billion of further support through tax credits. Thereby, the total support going to lone parents—a few lone parents are bereaved but the bulk, 95 per cent, are not—in either direct state funding or with funds from state mechanisms is well over £16 billion.
Let us now look at the other end of the telescope. What are we asking the parent with care to pay for collecting that extra money? By the end of the next spending review we will collect each year between £50 million and £100 million in collection charges from parents with care. Those figures are based on the 7 per cent to 12 per cent range of collection charges set out in the Green Paper.
Let us take the figure of £75 million and compare it to the £16 billion of support that is being provided to this group, either directly or through the state. That ratio works out at less than one half of one per cent. I do not think that Barclaycard or other credit cards charge as little as that.
Lord McKenzie of Luton
To clarify the figures, is the £16 billion to which the noble Lord refers payable just to parents with care who are using the statutory CSA system, or to lone parents generally?
Lord Freud
This is paid over to lone parents as a group. That is what we are paying over to lone parents. Some of them have been bereaved, but the bulk of them have not. All of them could look to get support from the non-resident parent, whether or not they had lived with them at one stage. That is the figure I am trying to explain. All of them could look to get some maintenance.
Is it unfair or unreasonable to ask for a small contribution to the cost of running a child maintenance system against a backdrop of that financial support? I remind noble Lords that, as Frank Field said, there is no offset any more; it is money on top; it is disregarded. A lot of the debate we had when CSA started in the 1990s and was so controversial, and in the early 2000s, was framed by the concept that it was money going from the non-resident to the Treasury. Between 2000 and 2010, we moved to a 100 per cent disregard. That is the fundamental difference of which I remind noble Lords.
The next point is that we have committed to reviewing the charging powers and laying the review before Parliament 30 months after introduction. That is to ensure that we are able to test properly whether the intended incentive effects of the charges are realised and that we get the behavioural impact of the charging regime.
Again, simply, we are looking at a 1:2 charging regime in round terms, which is intended to incentivise both sides to reach agreement between them rather than going through the state system as the first option. One reason that it is so important that we encourage both sides to go independently is because research tells us that the children are better off if the parents can agree between them rather than using the state system.
I, and the Government, have the utmost respect for my noble and learned friend, Lord Mackay, and the intention behind the original amendment laid on charging for child maintenance services. The problem of asking for a test to establish when the parent with care has gone through a process is that it may not be a real test—anyone can say, “Yes, I have been through a process”. If that is the case, we will end up with everyone using the system as the first option. If it is a real test, we will have to go through all the work of checking whether they have made efforts and the rights and wrongs, and we will be pulled down the slippery slope that we are so keen to avoid. Because we would be pulling people into the system, that would have a substantial cost because of the pure volumes.
Charging must have a role in the new system to ensure that we do not repeat the failings of the CSA. The proposed charges create an incentive for parents to collaborate and take responsibility.
As a direct result of the concerns expressed in this House, we have also changed the fees to enter the system, to avoid the parent with care being deterred from using the state system. We have announced that we are reducing the maximum charge from £100 to £20 across the piece to ensure that it is not a potential barrier to entry. We are offering a very good service for that £20 in that we will be looking at the non-resident parent’s earnings, and that will be a real benefit for the parent with care.
With regard to reducing the maximum charge and completing the review, when we know how the system has shaken out we can ask whether we have got the figures right and whether the charges are right. That is the point of the review: we can ask whether we are getting the behavioural responses that we need. I hope that I have laid out the issues adequately. I beg to move.
Lord Freud
My Lords, I shall start by addressing Amendment 73C, tabled by the noble and learned Baroness, Lady Butler-Sloss, which relates to limiting collection charges for parents with care. This is a substantial amendment that is similar to my noble and learned friend Lord Mackay’s, and it would represent a similarly substantial level of cost.
Before I get into the figures—I know that my figures have not been popular today—I want to highlight an element of the proposed charges that I do not think we have conveyed with sufficient clarity to noble Lords: parents have the option of avoiding collection charges altogether by using maintenance direct. My noble friend Lord Boswell asked a series of questions on this.
Lord McKenzie of Luton
Is it not right that under the new proposals the non-resident parent makes the decision to use maintenance direct but that is no longer available to the parent with care? The parent with care cannot opt for that arrangement.
Lord Freud
I think it is clear that the way that maintenance direct works is that the two parents have to agree on it. That is the point of maintenance direct. Under that system the Government calculate how much child maintenance is payable, but the payments themselves are made directly by the non-resident parent to the parent with care. If the payments are made in that way, no collection charges apply. It is a mutual decision.
The Government will ensure that a service is provided that enables maintenance direct to be used without the need for any contact to be made or personal information to be divulged. By using this system, the parent with care has the security of knowing that where it is established that payment has not been made in full and on time by the non-resident parent, the case will be moved into the collection service and swift action can be taken to reinstate payments. They can switch back and forth into that system. I take my noble friend’s point that there is a lot of attraction in that system and it may be underpublicised. To the extent that it is, we need to do something about it.
Where the payments move back into the collection service, charges will then be imposed for its use and they are heavily weighted on the non-resident parent. That acts as a real incentive for non-resident parents to pay in full and on time, and indeed by the charge-free method of maintenance direct. On the question of some non-residents wanting to go on punishing their ex, the parent with care, that would be a very expensive way of doing it—it costs the non-resident roughly twice as much as it does the resident.
I want to come back to the noble Baroness, Lady Sherlock, who said that she would deal with my argument piece by piece. I did not particularly agree with her. I was adding up the benefits system but also the tax credits system, which presumably many of the others who were not on the benefits system would have been on. Tax credits were invented in the early 2000s. I am talking about what it was like in the 1990s. The process by which the state supplied money for lone parents grew gradually through the 2000s until there was a total disregard. Early on, that was in the form of tax credits. From 2008, a proportion was in the form of benefits. The full disregard came in 2010. Therefore, I do not particularly buy the dismantling of the noble Baroness, Lady Sherlock.
I want to go into the costs. We estimate that the cost of Amendment 73C would be around £190 million, although it would depend on the exact level of the collection charge. There are assumptions around that. Therefore, in response to the question of my noble friend Lord Higgins, I say that it would be only a little less than the cost of the original amendment tabled by my noble and learned friend Lord Mackay, which was £220 million.
I also acknowledge the serious and considered concerns that have been set out by noble Lords both today and in our previous debate on this. I am prepared to make some specific commitments to the House on the development and oversight of the regulations, along the lines suggested by my noble friends Lord Boswell and Lord Newton. Later this year we will bring forward the regulations. At that point, other Ministers and I would like to offer Peers the opportunity to meet in a special session in Parliament to gather their views. We envisage an agenda based around the regulations, covering those that relate to the key concerns expressed during the passage of the Bill. I will of course take direction from interested Peers—there are a lot of them—as to the structure of that session. We will set that up as required.
We will also conduct a public consultation on the regulations. Following the finalisation of regulations after consultation, we will bring them back to the House. At that point, we will again offer a session for Peers to complement consideration by the committees of the House. That will not be the last time that the House debates charging; we will bring the affirmative regulations forward for debate.
We also acknowledge the need to evaluate and review constantly the impact of charges on parents. In respect of that, we have already amended the Bill to ensure that the review is published within 30 months of its introduction. Again, I here commit that we will seek the input of Peers during the course of that review in advance of a report being laid before Parliament.
Let me also be specific about what we intend to look at as part of that review. We will want to look at the impact of the application and collection charges on the behaviour of both parents and at the outcomes in terms of establishing effective maintenance arrangements. In our report to Parliament, we will make clear our intentions, including a specific view on the position of the poorest parents.
Lord Newton of Braintree
Briefly, may I just—in the form of a question, as I think is appropriate—ask my noble friend whether he is aware that I think that is a significantly generous response to my request for proper, genuine consultation and a real opportunity for the House to have a say?
Lord Freud
I am very grateful to my noble friend for that. In that spirit, I turn finally to my noble friend Lord Boswell’s Amendment 73BA. In doing so, I thank him for his contribution to today’s debate, which, as one would expect, was thoughtful and wise, as many other contributions have been, even those I have not necessarily agreed with.
We absolutely acknowledge the concerns around vulnerable groups, particularly parents with care. Although we will not further amend our current proposals, we want to ensure that, going forward, especially at the time of the review, we have the powers to evolve charges in line with evaluation. As I have stated, we especially want to consider the behavioural responses of parents and the outcomes they reach as part of our review. If in the light of evaluation and review we need to change our approach, I believe that Amendment 73BA clarifies that we would have the ability to do so under the 2008 Act. Therefore, I welcome Amendment 73BA and the Government wish to accept it.
Lord Boswell of Aynho
My Lords, in view of the tenor of this debate, and specifically what has just been said, I can be very brief and merely express my thanks. Our thanks go first to all those who have participated in this debate and to the non-government organisations and other interested parties that have briefed us and encouraged us on our way. We are grateful to the Minister for the way in which he has set out a response to my noble friend Lord Newton in relation to the consultation exercise and, more specifically, because he has gone even further than his earlier “sweetness and light” and has now actually accepted an amendment from the Back Benches. I am very grateful to him for accepting my amendment. It is not something I do very often, or at least I do not succeed in getting an amendment accepted, although I may try.
There is a real concern about getting this matter right and not disadvantaging vulnerable parents or children. We need to have a fairly intense dialogue about that and a much clearer understanding of the rationale of what is being done. We want to make sure that we do not do the wrong thing and then regret it later because that has been—with respect to all those in this Chamber who have been involved—something of the history of the CSA and CMEC to date. We have a chance to build on that. We start in a very good spirit. We have even had the indulgence of the usual channels and the Scottish interests in enabling us to prolong not just our consideration of this amendment but our detailed consideration of all these Lords amendments.
In conclusion, I wish to say two things. First, I approached this issue by putting a pair of gloves in my pocket which I was prepared to leave on the Bench as a gesture of dissatisfaction if we had to fight our way through to the regulations. I have now metaphorically repocketed them because I think that we can now have a constructive discussion which will lead to a satisfactory outcome. Secondly, and finally, I express my thanks to my colleague in this endeavour—the noble Lord, Lord Newton of Braintree. I dedicate this minor success to our noble and learned friend Lord Mackay of Clashfern in his absence. He took the House with him and got something done, for which we are very grateful. In that spirit and to enable a positive response, I commend the amendment.