Jobseekers (Back to Work Schemes) Bill

Baroness Sherlock Excerpts

Monday 25th March 2013 Lords Chamber

[Lord Howarth of Newport]

My Lords, is it not the case that every Government of the United Kingdom since 1948 have been committed to the principles and values articulated in the Universal Declaration of Human Rights? Is it not also the case that Article 7 declares that all are equal before the law and are entitled without any discrimination to equal protection of the law? If the Government deny legal aid in these cases, will they not repudiate that historic and fundamental commitment?

[Baroness Sherlock]

My Lords, in responding to this amendment, I should like to pay tribute to my noble friend Lord Bach, who has fought tirelessly on this subject for many months.

As we have heard, it is currently possible for a claimant who meets the eligibility criteria to get free legal advice and assistance to cover preparatory work for a hearing. Legal aid may also be available for higher tribunals and courts appeals on a point of law. However, from 1 April, all welfare benefits will be out of scope for legal aid. The context for this Bill makes this all the more complicated because, as we heard from the Minister, the law on sanctions has changed, so claimants may struggle to work out what applies to their case. Further, since there may often be significant delays between alleged breach and appeal, claimants may also struggle to work out what good cause or recompliance mean so long after the event, subjects to which we will return on a later amendment. This brings me to my questions for the Minister. First, will he clarify the position? If a claimant would have been entitled to legal aid to help prepare his case had he appealed within a month of a decision to sanction him, will he still be entitled to legal aid on the same basis should he appeal after 1 April? If the answer is yes, how will this happen? Who will provide the advice and who will pay for it? If the answer is no, given that the Courts and Tribunal Service is likely to be inundated with cases once the deferred decisions pile is unleashed, what assessment have the Government done of the likely delays and the consequent additional cost to the Courts and Tribunal Service of having so many unadvised appellants arriving at once?

If the Government are unable to give satisfactory answers to all these questions, I suggest that the Minister should accept this very mild amendment. If he does not, and my noble friend Lord Bach chooses to press it to a vote, we on these Benches will give him full support. The very least that the Government should do is provide a considered view—impossible beforehand, given the timetable—of the effect on access to legal advice and support of a group which Parliament never intended to be affected by the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act. We are pleased to support this amendment.

[Lord Freud]

My Lords, before I deal with this amendment, I ask the Committee to indulge me as I answer a couple of questions on the last round from the noble Lord, Lord McKenzie of Luton, which may be relevant.

On the question of what sanctions mean for national insurance, if the failure to participate was after 22 October 2012, national insurance is not credited but if it was before 22 October 2012 then it is. On going into work, no sanctions will be applied to people who no longer receive jobseeker’s allowance. That might save some writing.

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Moved by

[Baroness Sherlock]

7: After Clause 2, insert the following new Clause—
“Guidance
Within a month of this Act coming into force, the Secretary of State will issue guidance on the way in which claimants may be entitled to mitigate any penalty imposed upon them under the 2011 Regulations or the Mandatory Work Activity Regulations following the coming into force of this Act.”

[Baroness Sherlock]

My Lords, the amendment would require the Secretary of State to prepare guidance on how claimants might mitigate any penalty. This is necessary because there are some serious questions for the Government to answer about how the sanction system will work in practice after a delay of many months, potentially longer, and how a claimant is able to limit the effects in the way in which Parliament envisaged when it passed the legislation.

I want to turn briefly to the question of recompliance raised by the noble Lord, Lord Kirkwood of Kirkhope. The Jobseeker’s Allowance (Employment, Skills and Enterprise) Regulations 2011—the regulations that were found to be at fault by the Court of Appeal—explain the consequences of failure to participate in the scheme covered by those provisions. Regulations 8(4) to 8(6) provide that a claimant who fails to participate in an activity may face a loss or reduction of benefit for a period of two, four or 26 weeks. Regulation 8(7) provides that if someone has been sanctioned for 26 weeks but has recomplied, the period for which benefit is stopped is reduced to four weeks—a point explained by the noble Lord, Lord Kirkwood. Recompliance is defined in Regulation 8(8), which refers to the claimant as “C”. It states:

“C will be taken to have re-complied where”,

on the same date, before or,

“after the date on which the Secretary of State determines that C has failed to participate in the Scheme, C complies with … (a) the requirement as to participation in the Scheme to which the determination relates, or (b) such other requirement as to participation as may be made by the Secretary of State and notified to C in accordance with regulation 4”.

Here come the questions, and I apologise that they are not very exciting. Can the Minister tell the Committee how this will work some months after the event? Let us say that a claimant with a fluctuating health problem has failed to turn up for a training course imposed as part of skills conditionality and has been sanctioned for 26 weeks. The course ended last September. Had he been sanctioned at once, he could perhaps have attended the remaining days of the course and had the sanction reduced from 26 weeks to four weeks. Can the Minister explain how that person could now show compliance? It is obviously too late for him to recomply under Regulation 8(8)(a), but perhaps he could recomply under sub-paragraph (b). If so, can the Minister explain how that will work? If the person has been given any subsequent direction and has complied with it in any way at all, will that count as recompliance; does the recompliance have to be specific to the particular scheme that he was put on; or does it have to be specific to the requirement made of him at the time—that is, that training course? Presumably, the Government would want to make sure that this person was not treated any less fairly than he would have been had the Government’s regulations and notices not been found to be unlawful, but how would the Minister do that? If he is not in a position to explain to the Committee in detail now, I would press him to accept the amendment, which simply asks that he issues guidance explaining to jobcentre staff how they should act in order to put the claimant in the position in which they would have been but for the delay caused by the failure of the regulations to be accepted by the Court of Appeal as lawful.

My second question relates to the question of good cause, which the Minister referred to at an earlier stage. If a claimant fails to participate in the scheme, they are notified by the DWP and will be sanctioned unless they show what is known as “good cause” for their failure to participate within five working days.

Let me give another example. I am interested in exploring how good cause works in this time-delayed world. Let us imagine a single mother who was due to attend a course but missed the registration on the first morning because her 13 year-old son was up all night vomiting and she could not take him to school. She could not leave a sick 13 year-old at home alone the next day, so she phoned up the course and explained what had happened and that she would not be in that day. She talked to the receptionist who took a message and said that it would be passed on. The message was not passed on and when she turned up the next day she was told that she could not join the course because she failed to be there for the start. I should say that I have heard of real cases where precisely these things have taken place, and I am sure that the Minister has as well. Can the Minister help us to understand what would happen in that circumstance?

I understood from what the Minister said early on that that lone parent would have been written to at the time that this alleged breach took place, asking if she had any good cause for failing to turn up for the course. So what happened then? Presumably the decision-maker did not make a decision at that stage, so perhaps this would be sat on from that point, say the previous September, until it got around to being processed from the pile of deferred decisions. Would she at this stage have to explain more about what happened? For example, if there were not enough information in the explanation, did the decision-maker go back at the point at which this happened last September to say, “Tell me more”, or will that happen, say, the following April or May? If so, will she be expected to recall precisely what happened with this child’s bout of sickness last September, when it is now potentially April or May? Will she be asked for evidence for a bout of sickness that may not have required a medical appointment if the child was recovered within 24 hours? If she did give all the information but she was then deemed not to have good cause, presumably she could now appeal. If so, can the Minister explain to the Committee how the normal standards of evidence will be relaxed, if at all, given the serious time delay, to deal with the evidential problems and the possible recall problems that come with that?

Finally, can the Minister explain which set of regulations will apply to someone who committed the alleged breach under the old sanctions regime? Will he or she be sanctioned using the provisions that applied at the time of the alleged failing, because of course the ability to reduce the sanction by recomplying has since disappeared? Can the Minister reassure us that in fact someone will be able to reduce a sanction period by recompliance even if such an option no longer exists under the current regulations?

I apologise for having to go into such detail at this stage, but I did not choose to be conducting a Committee stage at quarter past one in the morning. I do think, if we are going to be asked to fast-track a Bill of this complexity and importance, that it is very important that the Committee is given every opportunity to understand precisely what the Government are trying to do to these people. I beg to move.

[The Deputy Chairman of Committees (Lord Haskel)]

My Lords, I must inform your Lordships that the result of Division 3 on Amendment 5A should have been Contents 35, Not-Contents 139—not 137 as announced.

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[Lord Freud]

My Lords, this amendment, which would require the Secretary of State to issue guidance on the way in which claimants can mitigate any penalty imposed under the ESE or MWA regulations after the Act comes into force, is unnecessary, as this information is provided to claimants as a matter of standard practice. When a claimant is issued with a benefit sanction, they are as a matter of course sent a letter explaining the decision made and what effect it will have. The letter clearly tells claimants that if they want to appeal the decision, they should fill in leaflet GL24, If you think our Decision is Wrong, and that claimants can,

“get this leaflet from your Jobcentre or Social Security Office”.

Attached to the sanctions letter are two leaflets: leaflet 1NF1, on appealing against a decision and leaflet JSA9, the hardship leaflet). I have both of these leaflets with me today.

The leaflet on appealing against a decision explains in plain English who the claimant should contact if they want to know more about the decision or, if they think the decision was wrong, how to appeal it and what support they may get in formulating that appeal. The hardship leaflet explains what financial support is available, the eligibility criteria and how to apply for hardship, and provides the form they must fill in to claim hardship. The whole process is done as a matter of course and, indeed, is on the record and available for anyone to see how those leaflets work.

I turn to the point raised by the noble Baroness, Lady Sherlock, on recompliance. If a claimant has been issued with a 26-week sanction but has complied in the intervening period, they will be served with a four-week sanction. Recompliance is not particular to any scheme and can include participation in any other scheme. Of course, the sanctions regime has changed, so if the failure to participate was before 22 October last year, the old regime, which includes the re-engagement, applies. However, if the failure to participate is after 22 October, the current sanctions regime, which has no engagement and which builds up, will apply. That goes on the time of the failure to participate.

The noble Baroness was concerned about the time between the failure and the sanction being imposed on the stockpiled cases. I am sorry that I have not yet found a better word than stockpiled but it is for cases not people. As I said on an earlier amendment, the process of finding that information takes place immediately on the failure. They receive a letter and need to provide good cause at that point. Clearly, where there is a problem and there needs to be amplification, and there is a problem of information or evidence, the decision-maker will have to take that into account in the normal way, given that there is a gap and it is a justifiable lacuna.

As a matter of course, the cases that we have stockpiled will get issued with a sanction and receive the standard letter, and those accompanying leaflets that I outlined. This amendment is therefore superfluous and I ask the noble Baroness to withdraw it.

[Baroness Sherlock]

I thank the Minister for that reply and, in particular, for clarifying that it will be the sanctions regime that was applicable at the time of the alleged breach that would prevail. I will just ask him to clarify one point more specifically. I was glad to hear him say that any subsequent direction can count as recompliance and that it did not have to be something specific to the particular scheme or course originally. It can count, but will it?

[Lord Freud]

If it fits the norms within which that re-compliance operates, then it will. I am not sure whether there is huge distinction, in this case, between the may and the will.

[Baroness Sherlock]

I am not trying to be pedantic, although I confess that it is a hobby. The reason it matters in this case is that normally, if I were sanctioned for not participating in a course, the obvious way to comply is to start going to the course. As the course has long since finished, there are all kinds of unrelated things that may have happened in between then and now, which would not be the obvious way for me to re-comply with a direction on something that has long since ceased. Therefore, the fact that these things could count does not necessarily mean that they will. The reason that I wanted guidance was precisely to make clear to jobcentre staff that in these circumstances they should interpret any form of compliance as being enough. I encourage the noble Lord to say that on the record.

[Lord Freud]

What I will say on the record is that we will ensure that guidance to jobcentre staff will make this absolutely clear.

[Baroness Sherlock]

What will that be?

[Lord Freud]

My Lords, we will make sure that the particular options here are laid out for jobcentre staff so that we do this consistently. I can add that recompliance will count if it is a scheme under the ESE regulations.

[Baroness Sherlock]

That was worth waiting for. I thank the Minister for that. I still think that this amendment is worth while. Although the Minister regards it as superfluous, the information that goes out to claimants actually relates specifically and only to complaints and hardships. The other obvious way to mitigate the effect of a sanction is recompliance and in fact none of that information does relate to recompliance. However, in the light of what he has just said, and given the lateness of the hour, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.