Jobseekers (Back to Work Schemes) Bill
Lord Bach Excerpts(11 years, 7 months ago)
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“( ) The Secretary of State will, within a month of this Act coming into force, lay a report before Parliament outlining whether in his view claimants affected by the introduction of this Act have access to adequate legal advice and support, taking into account the availability of legal aid for claimants appealing a sanction imposed under the 2011 Regulations or the Mandatory Work Activity Scheme Regulations after the coming into force of this Act.”
Lord Bach
My Lords, Amendment 2 is in my name and those of my noble friends Lady Sherlock, Lady Hollis of Heigham and Lord McKenzie. My first point is that this is about as mild an amendment as could possibly be imagined. All that I am asking is that the Secretary of State should lay a report before Parliament within one month of the Act coming into force. The report would outline the Secretary of State’s view on whether claimants affected by the introduction of the Act would, in the crucial words,
“have access to adequate legal advice and support, taking into account the availability of legal aid for claimants appealing a sanction … under the 2011 Regulations or the Mandatory Work Activity Scheme Regulations”,
both of which were declared unlawful. It is a limited request, and one to which I hope the Government will listen sympathetically in the course of this short debate.
It goes without saying that every claimant has the right of appeal. It would be pretty shocking if they did not. However, what use is a right that cannot be enforced? That is where the problem arises. At present any claimant who has sanctions imposed can obtain legal advice as to an appeal, whether the appeal is in the form of a review to the department or to the First-tier Tribunal. If a claimant is eligible, they are, as we speak, entitled to legal aid. Therefore, in reality they can get the advice perhaps from a solicitor or, more probably, from a not-for-profit organisation such as a law centre, the CAB or an advice centre.
This advice is not expensive—about £150 for this sort of case. It does not make the lawyers rich. It is quality advice. It often tells the claimant that he or she has no chance in any review or appeal. On the other hand, it may tell the claimant that he or she has a proper legal appeal. Early advice of this sort stops people going to the First-tier Tribunal. It does not encourage them to do so. The advice does not extent to representation. What it does is give these citizens some limited access to justice, which a mere right of appeal does not do.
Of course, in a week’s time on 1 April, legal aid will no longer be available to a claimant in this kind of case however poor, disabled or marginalised he or she may be. It has been taken out of scope. The question arises: from where is the client who believes that he or she may have an appeal to get advice? Law centres, CABs and other advice centres rely on legal aid as a major part of their income. How will they survive? Will it all be done pro bono by other lawyers? I would argue it is not possible in the real world for that to happen. There is not the expertise in this field of law or the time for busy lawyers to do pro bono work to cover all these cases. All pro bono lawyers agree with that. There is no satisfactory answer to the question: where will these people go?
Her Majesty’s Government’s more general assertion has been that welfare benefit law, under which these sanctions arise, is simple, not complicated, easy to understand and is not really law at all. One only has to state that point of view to know what rubbish it is. The thousands of pages of legal textbooks, the comments of tribunal judges from top to bottom and the experience of real life gives the lie to a trite and convenient lie. In this amendment, I invite the Government to live in the real world and do their proper duty to ensure adequate legal advice and support.
My remarks so far have concerned all claimants who face sanctions since the introduction of the new regulations on 12 February this year, following the Appeal Court judgment. However, there is a past and pressing problem for those claimants whose cases have been put on one side as a result of a Court of Appeal judgment. The decision to sanction those people will either not be made, or it will have been made under what were ruled to be unlawful regulations, their time for appeal not having run out by 12 February. In both cases, they would have a reasonable expectation of knowing their fate some time ago. Any decision to sanction them would, of course, have been subject to appeal. Of course, claimants are entitled now to get legal advice and, if eligible, entitled to legal aid for that advice. But in a week’s time, while still theoretically they are entitled to legal advice for an appeal, they will not be entitled to legal aid, which means in practice that many fewer than should will be able to get that advice. How can it be just that those people are put into a worse position by a delay that is absolutely no fault of their own but is, frankly, the responsibility on the other side—in this case, the department and the Government behind it? That is according to the Court of Appeal—in other words, as we stand now, the law of the land. It would be wrong for any of them to be deprived of their right to legal aid in those circumstances. Does the Minister agree? If not, why not?
My amendment asks the Secretary of State to take into account the availability of legal aid for claimants in that situation. In my view, the Government can do no less. It is a modest amendment to which the Government could give their blessing. I beg to move.
Lord Bach
My Lords, I thank the Minister for his reply. I thank other noble Lords who have spoken, all of them in favour of my amendment. I also thank noble Lords who have asked questions of the Minister in regard to this matter.
I have to say that I sometimes wonder whether the Government really understand how important these issues are. We enjoy a system of law that enjoys a reputation that is well deserved over many years. One of the jewels in the crown of the English legal system is that people, when they hear about it, know that it applies to everyone, not just to the rich and powerful but applies, sometimes to a limited extent, to those who are at the bottom of the pile. That is the glory of the legal system. What the Government do not seem to understand is that it does not matter whether there are 20 cases, 500 cases, or 5,000 cases; these are fellow citizens who should be entitled to the protection of the law like everybody else. Is the Minister really saying that if the numbers were much greater the Government would change their attitude? I do not think that that is what he is saying.
This measure is particularly unfair to those who, through no fault of their own, have been caught by the hiatus that has been caused by the Court of Appeal saying that the regulations put forward by the Government were unlawful.
Lord Freud
Perhaps I may make absolutely clear the point about the numbers. There was a lot of comment from noble Lords opposite that the system would be overwhelmed by the numbers because people did not have legal advice and the system could not therefore cope. The point I am making is that that argument does not stand in the light of the rather small number of cases—between 1,500 and 2,000—that might come towards the First-tier Tribunal as a result of the Bill.
Baroness Hollis of Heigham
If I may intervene, approximately 500,000 sanctions were issued last year. Something like 3,500 or 4,000 of those cases went to appeal. That was last year, before this additional provision hits them. The Minister may wish to reconsider his statistics.
Lord Bach
My Lords, perhaps I may go back for a moment to the hiatus caused by the Court of Appeal decision. It means that those who stood to have the protection of the law as it stood at the time that they were sanctioned or due to be sanctioned will, if the Minister is right, no longer have that protection, merely because of the passage of time and because something has intervened that is absolutely no fault of theirs, but is, I am afraid, the fault of the Government. That seems to be against any British sense of fair play. I beg to test the opinion of the House.
Jobseekers (Back to Work Schemes) Bill
Lord Bach Excerpts(11 years, 7 months ago)
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Lord Bach
My Lords, it is hard to think of a more unattractive, more unappealing and more unworthy Bill than this one. In its damning report, our Constitution Committee condemns the constitutional basis on which the whole Bill rests in direct and straightforward terms. Whether it is the issue of fast-tracking, of retrospection or, tellingly, a combination of the two, the report is unambiguous. I am not going to waste the time of the House by repeating the findings of the committee, rather, I shall mention comments made by two other organisations outside of this House. I certainly would not agree with the philosophy of one of those organisations because it is a campaigning group called Boycott Workfare. It puts the case about this prospective Bill rather differently from the Constitution Committee, but the implication is the same:
“This is almost unbelievably disgusting … [DWP] broke the law, now they want to retroactively change the law so that they didn’t break the law in order to keep £130 million out of the pockets of some of the poorest people in the country”.
The much criticised PCS union has surely got it right:
“The bill would set a dangerous precedent if passed—sending the message that when citizens defeat the government in court, it can overturn the court ruling retrospectively with primary legislation—effectively making the Government above the law”.
Of course, this is not the first time that the Government have behaved in this high-handed and unprincipled way, described by the noble Lord, Lord Pannick, in his brilliant speech as an abuse of power. Next week there will be a slightly more minor issue, but in my view still an important breach in the way a Government should behave. The House will debate the Government’s refusal to take any notice at all of the views of this House, reflected in a vote by this House, on a regulation arising from the legal aid Act. This state of mind and attitude towards law making is deeply worrying. The basic thing that Members of this House must do, from wherever we come, is to scrutinise Bills of this kind with particularly specific care.
It is, of course, obvious what the Government ought to do as a consequence of this debate: they should withdraw their Bill and expedite their appeal to the Supreme Court. However, on the assumption that they will not do the obvious thing, and that the Bill somehow becomes law, I will deal with one aspect of it, as briefly as I can. Clause 1(13) reasserts what of course should be obvious, which is that a person may,
“apply for a revision or supersession of, or … appeal against, a decision to impose a penalty”.
That is of course as it should be. We know that a person is entitled to show good cause or reason why they should not have privileges taken from them.
However, something essential to a person’s right to appeal is about to disappear. It is not, of course, mentioned in the Bill, nor is it talked about by the Government and nor is it really talked about by the media outside. It is a sort of guilty secret. It is the right to legal advice, paid for, if the person is eligible, by legal aid. Today, as we speak, a person who wished to appeal a mandatory recommendation would be entitled to legal aid to get some basic, fairly cheap, quality advice. A person seeking to appeal to the First-tier Tribunal would be entitled to legal aid for such advice. Whether it was the mandatory reconsideration or the next stage, the First-tier Tribunal, they would be entitled, if they were eligible, to legal aid. If we move forward 10 days to 1 April, that entitlement that they have now will no longer be there and they will not be entitled to legal aid. It is obvious that many of those involved in the Work Programme would be eligible for legal aid today. They are on JSA, many of them are young and many more of them will be without means in any event. Part of the value of advice is that it weeds out the hopeless case, so that the system is not clogged up with them. Another advantage is that it encourages the good case, ensuring that people are not, as in this case, being wrongly sanctioned when they otherwise might face no action. However, its greatest value is that it is fair and that it has been an important part of our legal system, and will be up until 1 April. My question to the Minister therefore is this: if the Bill is passed, will the Government ensure that all those who are sanctioned will be able to access advice, either on reconsideration or on appeal, if they want to? That is the position today and surely it should be the position in 10 days’ time.
Finally, I come back to one of the comments that my noble friend Lord McKenzie made in his speech and a question that he posed. If the Government refuse, then is it not clear that those persons whose cases have been stockpiled because of the unlawfulness of the regulations, and who want to appeal the sanctions decision made against them some time ago, will be put in a much worse position because of the Government’s incompetence? How can that be justified in these, or in any, circumstances? I look forward of course to the Minister’s reply. I hope he will reply to the questions that he has been asked by noble Lords around the House. The House is entitled to that, particularly given the circumstances of this Bill. I do not envy him his task in justifying the Bill. Whichever way you look at it, this is no way for a Government in a mature, responsible democracy, to behave towards their citizens.
Welfare Benefits Up-rating Bill
Lord Bach Excerpts(11 years, 7 months ago)
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Baroness Sherlock
My Lords, I rise to move Amendment 6, which is in my name and that of my noble friend Lord McKenzie as well as the names of other noble Lords. We rehearsed this issue in Committee but I return to it on Report because, with apologies, I found the response from the Minister so disappointing. Because it is the last amendment of the day, I will be brief.
The Government estimate that some 232,000 families will claim statutory maternity pay, or SMP, in 2012-13, rising to 235,000 in 2013-14. Using the Government’s own inflation forecasts, the Children’s Society calculated that if a woman were on maternity leave now with her first child, and had her second child in 2015, she would find that she received about £184 less in real terms during her second period of maternity leave than her first. If her earnings were below the flat-rate level of SMP, that figure rises to £217. Just when a family needs money most, support is being cut.
This is by no means the first assault on the living standards of mothers of young children. In Committee, I recited the litany of cuts to support for parents of new children. I will spare the House the entire list but will just reprise one or two. We have seen the abolition of the health and pregnancy grant, the abolition of the Sure Start maternity grant for all but the first child, the abolition of the baby element of child tax credit and the cancellation of the planned toddler element, the abolition of the government contribution to child trust funds, cuts to the percentage of childcare help and much more. Since then, the Children’s Society has analysed in detail the impact of those changes. The results are shocking. They have calculated that a working couple about to have a second child in 2015 could find themselves over £7,000 worse off than they would have been over the following two years, simply as a result of changes since 2010. That is the context for this amendment and, indeed, for this Bill.
My second concern is that the Minister failed entirely in Committee to address the question that I raised as to the rationale for including SMP in this Bill. Noble Lords may recall that the Prime Minister’s official spokesperson responded to critics by telling the Telegraph that it was a “personal choice” for parents to decide whether to return to work or to stay at home after having a child. Of course it is, just like deciding where to go on holiday, where to shop, or where to buy your children’s clothes is a personal choice—if you have enough money, that is. If not, then it is George at Asda for you, rather than Giorgio Armani Junior. Money is what makes people have choices, not simply the fact of having a baby.
However, that was not the reason that the Chancellor gave when he announced this Bill back in the autumn. He claimed that the legislation was necessary to ensure that the welfare state was fair to working people, and not to those who lie in bed with their blinds down when their neighbours go to work. In Committee, I asked the Minister to explain how SMP fits with his argument. Let us recall that SMP is a contributory benefit, paid only to women who have given up work to give birth or to care for a new baby, after having been in continuous employment for the requisite period and earning enough to require their employers to pay national insurance contributions on their behalf. However, answer came there none. I therefore ask the Minister one last time: how does including SMP in this Bill fit with the Chancellor’s narrative, and why should pregnant women and new mothers pay the price for a tax cut for millionaires? I look forward to the answer. I beg to move.
Lord Bach
My Lords, I very much support what my noble friend has said in moving the amendment. The House seems very quiet this evening, following the shenanigans of this afternoon when it looked very much to some of us as though there was an organised group on the other side—many of whose members are no longer present, of course, it being after dinner time—who found a huge interest in this Bill in order to keep the Report stage going. Be that as it may, those times are obviously past.
If I read correctly, the Minister—to whom I attach no blame at all for what has been going on, of course—said in reply to my noble friend in Committee that the cost in the last of the three years of allowing this amendment would be around £50 million. Let me tell her one way, at least, that that £50 million could be found five times over. The communities department has £250 million to spend, and has done for some time, in order to make rubbish collections weekly rather than fortnightly. No doubt that is a priority for some, and no doubt it has a validity of its own. However, compared to the wrong which is being done by this Bill—and by others too—and in particular the wrong addressed by my noble friend in her amendment, could the Government not get some proper sense of priority as to what does and does not matter, even at this late stage? That is £50 million, compared with £250 million that is sorted away. This was not mentioned, of course, by the noble Lords who were this afternoon defending the Government’s position with such vigour, because it is an inconvenient truth that in government there is spend which could be much better spent on protecting those who are going to be hammered by this legislation. I ask the noble Baroness to answer my question: what is wrong with spending part of that £250 million, and agreeing to my noble friend’s amendment?
Lord Bates
My Lords, I was not intending to speak on this amendment, but I rise at the prodding of the noble Lord, Lord Bach, who seemed to suggest that some kind of operation was going on in the conduct of our discussion. If there was any operation, the strangest thing about it was that there was not a single speech from the Back Benches of Her Majesty’s Opposition. It is amazing. We are talking here about what we recognise as being critical issues. On each amendment, there were probably three speeches from the Back Benches here, but not one single speech from the Back Bench of the Official Opposition. If the noble Lord wants to come back on that, I shall be more than happy to give way.
Lord Bates
I take the noble Baroness’s point and shall not pursue it further. I had not intended to make that point, but it is important. Perhaps I may say one other thing. Since I have trodden on a few toes, let me tread on truly sacred ground.
Lord Bates
I am going to deal with it. I want to come back to the point that I was going to make previously, because I think it is relevant. For the first six weeks of the 39 weeks of statutory maternity pay, 90% of the benefit that is payable is linked to earnings. The point that I was going to make is that, while benefits have increased in line with inflation by 20% in the past five years, as we have heard many times, average earnings have increased by only 10%. In fact, according to the Centre for Social Justice, that increase for some of the lowest earners, particularly females, has been 7.8%. I wanted to make the point that in terms of helping with maternity pay at that particular point, the best we can do is see a growth in salaries. If salaries grow, it is axiomatic that the statutory maternity benefit in that first six weeks will be enhanced. The problem is that salaries have been suppressed.
The OBR report relating to the Bill that we are debating shows some quite encouraging signs. For the first quarter of 2014, we have a forecast of increases in the order of 4.5% per year, growing to 4.6% during the period of this Bill. Surely increases of that nature, when linked to the statutory maternity pay of which we are talking, must have some effect. In the same way, I inquired of the noble Baroness, Lady Sherlock, who introduced this amendment, whether the stark numbers that she presented to us contained any element that reflected the suppression of wages that we have seen over the past five years. This has been seen particularly in the private sector, although it has been in the public sector as well, where wage increases are subject to a 1% cap. That is the point that I ask the noble Baroness to clarify when she responds.
Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013
Lord Bach Excerpts(11 years, 8 months ago)
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The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)
My Lords, these regulations were laid before the House on 13 December. I confirm to the House that these provisions are compatible with the European Convention on Human Rights.
The decisions and appeals regulations deal with provisions that set out the framework for decision-making in universal credit, personal independence payment and contributory employment support allowance and jobseeker’s allowance. The existing decisions and appeals regulations are tried and tested and are considered still fit for purpose, even in the “new world” of welfare reform. For UC and PIP to work as we intend, both technically and in terms of protecting claimants’ rights and welfare, the benefits require a strong underpinning both at the initial decision-making stage and where decisions are disputed. The regulations we are considering provide just that.
I will focus on those issues that I believe will be of most interest to noble Lords because they are both new and of significance. The first relates to mandatory reconsideration, provided for in Section 102 of the Welfare Reform Act 2012. Currently, a claimant can ask for a decision to be reconsidered by a decision-maker, and this process may result in a revised decision. In practice, however, many people do not do so and instead make an appeal from the outset. This is more costly for the taxpayer, is time-consuming, stressful for claimants and their families, and, for a significant number of appellants—some 40% of all appellants are successful—unnecessary. I say this because this success is on the back of new evidence presented at the tribunal.
We need a process that enables this evidence to be seen or heard by the decision-maker at the earliest opportunity. It is accepted that this will not mean that all decisions will be changed and appeals will be unnecessary, but we should at least have a process that allows this to happen. Mandatory reconsideration does just that. It will mean that applying for a revision will become a necessary step in the process, before claimants decide if they still wish to appeal.
Importantly, another DWP decision-maker will review the original decision, requesting extra information or evidence as required via a telephone discussion. If appropriate, they will then correct the decision. When this happens, there will be no need for an appeal—an outcome that will be better for the individual and better for the department. Claimants will of course be able to appeal to the tribunal if they still disagree with the decision, which will be set out in a letter detailing the outcome of the reconsideration and the reasons for it. We hope that because of the robust nature of the reconsideration and the improved communication that our reforms will result in, some claimants will decide that they do not need to pursue an appeal.
We ran a formal 12-week consultation on the proposals between February and May 2012, and published the Government’s response in September 2012. We received 154 responses, which included a range of suggestions on how we could continue to improve decision-making across all benefits. A number of respondents suggested that there should be a time limit on the reconsideration process. As set out in the Government’s response, we are not making any statutory provision for this. Some cases are more complex and require additional time—particularly, for example, where extra medical evidence needs to be sought. However, we recognise the concern here and are considering the scope for internal targets. It is a balancing act that we must get right. We will monitor developments closely and make adjustments accordingly.
I will mention another change linked to the mandatory reconsideration initiative. It will see all appeals being made directly to HMCTS and not, as now, to this department. The change brings the DWP in line with the appeals process for other departments. It is a positive move as it will allow HMCTS to book hearing dates much more quickly than is possible currently.
I turn now to the payment of benefit pending reconsideration and appeal. Noble Lords should be aware that there is no change to the current policy. Under existing provisions, if someone is refused benefit and requests a revision of that decision, benefit will not be paid pending the consideration of that request. It will be the same for mandatory reconsideration. Again, there is no change in relation to appeals. Under existing provisions, if someone appeals a benefit—save for ESA, which I will come to—no benefit is paid pending the appeal being heard. This must be right. It would be perverse to pay benefit in circumstances where the Secretary of State had established that there was no entitlement to it. As a principle, this will not be changed by the welfare reforms.
I turn now to ESA. At the moment, if someone appeals a refusal of ESA, it can continue to be paid pending the appeal being heard; this is not changing. What is changing is that there can be no appeal until there has been a mandatory reconsideration. So there will be a gap in payment. In that period—and I repeat that applications will be dealt with quickly so that this is kept to a minimum—the claimant could claim jobseeker’s allowance or universal credit. Alternative sources of funds are available. Of course, he or she may choose to wait for the outcome of the application and then, if necessary, appeal and be paid ESA at that point.
Another important policy change in these regulations relates to the payment of universal credit being made on a monthly basis. Reflecting this monthly payment, the effective date rule for change of circumstances will follow a whole-month approach—that is, that a change will be effective from the start of the monthly assessment period in which it occurs. Claimants will be expected to report any changes immediately. This will be made clear in their claimant commitment and in the decision notifications that they receive. Any change that is advantageous to the claimant must be reported within the assessment period in which the change occurred. Where the change is reported late—for instance, if the change occurred at the end of an assessment period or if there were special circumstances that caused the delay—our guidance and regulations on special circumstances will allow the decision-maker discretion to treat the late report as being in time. However, if the change of circumstances is reported late and does not meet the guidelines for accepting a late application, the change will only be applied from the beginning of the assessment period in which it was reported. This policy will ensure that the reporting of changes of circumstances is done in good time, that there is no incentive to delay reporting, and that the monthly universal credit award accurately reflects the claimant’s needs for the month ahead.
One area that I know will interest noble Lords is the issuing to claimants of decision notices, which have been developed taking on board claimant insight and stakeholder feedback. The decision notice will clearly set out a claimant’s monthly award and break down how the award has been calculated. In the long run and in the majority of cases, we intend that claimants should be notified of decisions relating to their universal credit award through the online channel.
I turn now to the guidance being drafted to support these and other regulations. I know that noble Lords have concerns about this and it was raised by the Secondary Legislation Scrutiny Committee. Noble Lords will be pleased to learn that the guidance has been placed in the Library—indeed, I am sure that many will have read the guidance. In relation to these regulations, guidance on revising decisions at any time and on the handling of late notification of a change of circumstances is available.
Finally, it should be noted that these regulations were referred to the Social Security Advisory Committee, which decided not to refer them for formal consultation but did invite comments informally. The comments received related to the time limit for mandatory reconsideration and the whole-month approach, both of which I have already covered. I commend the regulations to the House and ask noble Lords for their approval. I beg to move.
Lord Bach
My Lords, I thank the Minister for moving these regulations. This is clearly an important day for the future of our social security system, and the House has heard why so many of us believe this to be a day of shame for our country and its reputation as a civilised and just place to live and work.
I rise, on this particular regulation, certainly as no expert in the provision of the regulations that have gone before but as someone who has an interest, as I hope we all have, in ensuring that everyone has equal rights before the law—in other words, some real access to justice. In the Explanatory Memorandum to the regulations, paragraph 7.1 states:
“The Department for Work and Pensions … is introducing a new set of Decisions and Appeals Regulations to ensure that the decision-making and appeals framework which currently applies to all social security benefits applies to the new benefits introduced by the 2012 Act”.
No doubt the intent behind the regulations—it is a virtuous intent, at least in theory—is that for those wishing to challenge or appeal a decision there is a procedure to go through, as there always has been.
Universal Credit
Lord Bach Excerpts(12 years ago)
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Lord Freud
My Lords, that is not how the benefits system is built up. It is not, and has not been ever under any Government, built up on the basis of needs. It is based on a particular set of payments for people in different categories. That will continue. In fact, under universal credit the gross amount for people who are unemployed will remain more or less unchanged as a direct result. Clearly people can get access to computers. They do not necessarily have to have them at home.
Lord Bach
My Lords, does the Minister accept that when universal credit comes in, an enormous number of wrong decisions are bound to be made? Is he aware that just when universal credit comes in, legal aid for legal help with benefit law will just have been abolished? Are those two facts merely coincidental, or is it a calculated act of policy, whose aim is to punish the vulnerable and the poorest?
Lord Freud
My Lords, when you turn what can be 200 pages of applications for the current suite of benefits into one very much more simplified system, clearly you will dramatically reduce the number of errors that people will make. I therefore think that the complaint is about the existing system and not about the system we are planning.