Scotland Bill

Lord Davidson of Glen Clova Excerpts

Monday 22nd February 2016 Lords Chamber

Moved by

[Lord Davidson of Glen Clova]

77: Clause 20, page 23, leave out lines 4 to 12 and insert “a disabled person or person with a physical or mental impairment or health condition in respect of effects or needs arising from that disability, impairment or health condition.”

[Lord Davidson of Glen Clova (Lab)]

My Lords, I rise to speak to Amendments 77 and 79 in my name and that of my noble friend Lord McAvoy. The focus of Amendment 77 is the current definition of “disability benefit” used in the Bill. The concern is that this may place unnecessary limits on the kind of replacement benefit that the Scottish Government have the power to introduce. The fear is that it may not allow the Scottish Government to introduce a benefit to assist people with very low-level disabilities or those for whom the effect of their disability is largely financial.

We moved this amendment in relation to carer’s allowances at Committee stage in the other place following concerns raised by third-sector organisations. The concern from both Inclusion Scotland and Citizens Advice Scotland has been that the definition of disability might,

“restrict the autonomy”,

of the Scottish Parliament,

“to construct a new system based on empowering disabled people to lead active and productive lives and promoting the human rights of disabled people and independent living”.

Amendment 77 would offer an alternative, broader, more flexible definition of “disability benefit” that would, among other things, allow the Scottish Parliament to introduce a benefit to assist people with low-level disabilities or those for whom the effect of their disability is largely financial.

The Government brought forward an amendment on Report in the other place regarding the “carer’s allowance” definition. However, they do not appear to have done the same in relation to the “disability benefit” definition. True it is that the Ministers, the noble Lords, Lord Dunlop and Lord Freud, have both written to this side of the House trying to clarify the Government’s position. The letter we received from the Minister includes the following,

“by including the phrase ‘normally payable’ at the head of the definition, the provision gives the Scottish Parliament the necessary flexibility to create exclusions or create special categories, for example to enable provision for people who are terminally ill or those with lower needs”.

I do not, of course, doubt in any way the accuracy of the Minister’s statement, but on this side we are still keen to get assurances from the Minister on the Floor of the House and confirmation that the Scottish Government could introduce a benefit to assist people with very low-level disabilities or those for whom the effect of the disability is largely financial. That, in a nutshell, is the position that we adopt in relation to Amendment 77.

Amendment 79 provides for the devolution of the Access to Work scheme. This was an amendment that we moved at Committee stage in the other place. As my honourable friend the Member for Edinburgh South observed in the other place:

“Access to Work provides practical advice and support to disabled people, and their employers, to help them to overcome work-related obstacles resulting from disability”.—[Official Report, Commons, 30/6/15; cols. 1429-30.]

The devolution of the programme to local authorities would certainly allow there to be better tailoring to local needs.

Access to Work is closely aligned with employment support. Several charities, including Inclusion Scotland and the Wise Group, are in favour of Access to Work being devolved to Scotland. ENABLE Scotland observes that the Access to Work scheme is one of the most important elements of the employment support system for disabled people. It gives various examples, such as the British Sign Language interpreters working for deaf employees.

ENABLE Scotland states its position as believing that,

“the devolution of Access to Work is necessary to deliver integrated and accessible Employment Support in Scotland”.

Its position, which we share, is that Access to Work,

“does not currently integrate well with employability programmes”,

that are sometimes not fully delivered by the Department for Work and Pensions. It continues:

“For example, if you are a person on Work Choice you can use Access to Work to get pre-employment support in interviews or agree support whilst transitioning into work. Persons supported by the Employability Fund … do not have access to that support and face increased negotiation and bureaucracy to get the support … Given that post-devolution the employability programmes will not be delivered by the DWP, failure to devolve Access to Work in parallel will limit access for Scottish jobseekers and increase bureaucracy for specialist support organisations and employers”.

The Scottish Council for Voluntary Organisations also supports the devolution of Access to Work. It takes the view that that is necessary to create the integrated accessible form of employment support that it considers, as do we, should be created in Scotland. A women’s charity in Scotland, Engender, has also identified support for devolution of the Access to Work scheme, which it says is necessary for improving overall support for disabled people.

There are four questions that the Minister could assist us by answering. I do not expect immediate direct answers to them all; an answer in writing, in the usual terms, would be fine. These questions are as follows. First an integrated package of employment support measures is essential to ensure the best outcomes for disabled people—I assume that there is no disagreement about that. So what effect will absence of Access to Work in the devolution package have on outcomes for disabled people?

Secondly, will the Minister address the points raised by ENABLE, supported by the SCVO? It says that failure to devolve Access to Work in parallel with the Work Programme and Work Choice will,

“limit access for disabled jobseekers in Scotland and increase bureaucracy for specialist support organisations and employers”.

Thirdly, does he believe that Access to Work complements the employment support programme already being devolved to Scotland? Finally, if the Government are committed to keeping this programme as a reserved matter, does that not make an even stronger case for a Joint Committee on welfare devolution to be set up? That idea is covered in a further amendment, tabled by my noble friend Lord McAvoy.

A number of amendments tabled by the noble Lord, Lord Kirkwood, seem to have a broadly similar intent—to prevent the UK Government from clawing back top-up benefits paid by the Scottish Government through means-testing reserved benefits. We on the Labour side have similar concerns. The Scottish Government should be able to make top-up payments to individuals who have had their payments unfairly reduced, suspended or withdrawn under the UK Government’s sanctions regime.

We accept that Her Majesty’s Government have tabled a significant number of amendments for Report stage that mean that the Scottish Parliament appears to have complete power to create new benefits in devolved areas and top up existing benefits—which, of course, we fully support. However, Labour outlined in the other place our wish for the Scottish Government to be able to make payments to those who have been sanctioned. The Minister may well have already covered that position. Certainly in meetings with him, which were extremely helpful, it has been suggested that the question in relation to sanction is already covered by the legislation. None the less, as with the previous amendment, it would be extremely useful for us if the Government were to confirm that for the record.

We would support Amendment 77J, tabled by the noble Lord, Lord Kirkwood, on definitions of “short-term”. We tabled an amendment in another place, but did not pursue it as we had assurances that the position would be covered by the legislation. Nevertheless, our argument in Committee has been that the inclusion of phrases such as “short-term” would appear to limit the scope of the Scottish Parliament to take action in these areas. In the instance of discretionary housing payment and other discretionary payments, the Government have told us that, in their interpretation, a discretionary payment is a short-term payment. Our argument was that a discretionary payment is just that—a payment made at the discretion of and according to parameters set by the relevant Government. We respectfully suggest that further clarification would be useful from the Minister in that area.

We support the amendments in this group proposed by Her Majesty’s Government, as these are primarily of a technical nature. I beg to move Amendment 77.

--- Later in debate ---

[Lord Dunlop]

The first thing to say is that we do not anticipate problems. That is why I go back to this being a backstop power. The powers to vary are discrete. We shall come on to talk about the amendments regarding a welfare commission, but already close intergovernmental working has been established both at ministerial and official level and a lot of work is going on through visits and teach-ins and the like. Given where we are with universal credit rollout—it is already fully rolled out in Musselburgh; by June it will be rolled out in Inverness and by autumn in another five centres across Scotland—there is an opportunity to look at how these changes and the flexibilities that the Scottish Government have got might actually work in practice. There is a good dialogue between the two Governments to establish what the Scottish Government want to do with these powers and what draft Scottish Parliament universal credit regulations might look like. In terms of dispute resolution, we have already established a joint ministerial group on welfare. That has already proved an effective mechanism for resolving any issues between the two Governments.

I turn to the government amendments. Amendment 77B is technical in nature and ensures that executive competence will be transferred to the Scottish Ministers so that they can make payments of Sure Start, maternity grants, funeral payments, cold weather payments and winter fuel payments when Clause 21 is commenced. Clause 21 provides the Scottish Parliament with legislative competence to create a scheme that would allow it to make payments or provide other assistance for funeral and maternity expenses, and expenses incurred due to cold weather. Without the amendment to Clause 21, executive competence would not be transferred to Scottish Ministers when the clause is commenced. This would prevent Scottish Ministers being able to make payments in respect of Sure Start, maternity grants and all the other payments to which I have referred. This amendment therefore ensures that people in Scotland can be paid these benefits by Scottish Ministers and that payments will be made out of Scottish funds.

Our amendments between Amendment 77P and Amendment 79ZB are again technical amendments. They deal with the way in which existing social security legislation will apply after the transfer of powers under the Bill. The amendments to Clauses 27 and 28 relate to universal credit and put beyond doubt the intention that where regulations are made by Scottish Ministers under the new powers, the Scottish Parliament’s procedure for negative instruments applies. Clause 31 is a technical provision that requires legislation to universal credit to be read as if references to the Secretary of State were references to Scottish Ministers. After careful consideration and since universal credit will remain a reserved benefit administered by the DWP, this clause is not required.

The noble Lord, Lord Kirkwood, mentioned the Social Security Advisory Committee and its role to advise the Secretary of State on relevant matters relating to social security. The Industrial Injuries Advisory Council advises the Secretary of State on matters relating to industrial injuries benefit and its administration. The roles of the SSAC and IIAC are to remain unchanged. Scottish Ministers, however, will not be able to refer their draft regulations to these bodies for consideration. Once legislative competence has been given to the Scottish Parliament it may, if it wishes, put in place separate scrutiny bodies to consider legislative proposals made by the Scottish Government within the scope of the legislative competence and report back to Scottish Ministers. It is for this reason that we do not support Amendment 79ZC, which seeks to change the role of the SSAC to give it a duty to advise Scottish Ministers. We would of course want to put in place arrangements to facilitate information and co-operation between the two Governments.

Finally, Amendments 79ZE, 79ZF and 79ZG will ensure that UK Parliament procedure is converted into Scottish Parliament procedure in relation to the secondary legislation that Scottish Ministers will be able to make in relation to welfare foods. I will move these government amendments and I ask noble Lords to withdraw or not move their amendments.

[Lord Davidson of Glen Clova]

I express my gratitude to the Minister for the clarifications that he has given in relation to disability benefit and its definition. In relation to access to work, I will reflect on the answer he has given and eagerly await the Written Answers. In these circumstances, I beg leave to withdraw my amendment.

Amendment 77 withdrawn.