Universal Credit Regulations 2013

Lord Eden of Winton Excerpts

Wednesday 13th February 2013 Lords Chamber

[The Countess of Mar]

My Lords, I propose to confine myself to Part 5 of these regulations on the capability for work or work-related activity. The Minister will recall many occasions when he has assured me that people with ME/CFS are judged on what they can and cannot do in their condition. Memo DMG 1/13, entitled, ESA: LCW and LCWRA Changes, has been brought to my notice very recently. Part 16 of these changes, which I will read out completely so that we understand them, states:

“DMG 42114 advises that a claimant’s LCW must be due to a specific bodily disease, mental illness or disablement. This means that a claimant could satisfy the mental, cognitive and intellectual function descriptors if they had a physical health condition, without having a mental health condition. The law is amended to make it clear that physical descriptors can only be satisfied by a person with a physical health condition, and mental descriptors can only be satisfied by a person with a mental health condition”.

The document then indicates the difference between limited capability for work and limited capability for work-related activity. Both the sections are the same, so I will just read out one:

“when assessing the extent of the claimant’s LCWRA, it is a condition that the claimant’s inability to perform¹

1. physical descriptors² arises”—

I assume the figures refer to the notes—

“1. 1.1 from a specific bodily (i.e. physical) disease or disablement or

2. 1.2 as a direct result of treatment by a registered medical practitioner for such a condition and

2. mental descriptors³ arises

1. 2.1 from a specific mental illness or disablement or

2. 2.2 as a direct result of treatment by a registered medical practitioner”.

In view of the fact that these regulations are running parallel with the ESA regulations—Part 4 and Part 5 —will the Minister please explain why this change has occurred? These people obviously have to have a mental or a physical condition, on a medical certificate presumably, before they can be judged to have one or other of the conditions that I have mentioned. We have a particular difficulty with ME/CFS, as the Minister knows, because many of these people will not have seen a doctor for years and cannot get a medical certificate. I would be grateful if the Minister could clear that up for me.

Also on these paragraphs, Citizen Advice states in its briefing that Regulations 39 and 40 in Part 5 of the Universal Credit Regulations 2013, to which I have referred, set out,

“who is entitled to the Limited Capability for Work element and the Limited Capability for Work Related Activity elements. Regulations 89 to 91 set out who apart from those with LCW or LCWRA will have full work related requirements. Under Universal Credit, claimants with a disability and/or a health condition can be required to undertake ‘all work-related requirements’ before the outcome of their claim for the equivalent of income-related Employment Allowance … has been decided, and whilst they are appealing that decision. ESA regulations (2013) Regulation 26 maintain current protection for those applying for contribution-based ESA … This means that claimants with an equivalent disability and/or health condition applying for ESA … (or the equivalent in UC) will face different work-related conditions through the assessment phase and any appeal, to those applying for ESA”.

Will the Minister kindly clear that one up as well, please?

[Lord Eden of Winton]

My Lords, perhaps I may make a brief comment, but first I must apologise to noble Lords. It is quite clear from all those who have spoken that there is a great deal of expertise and deep knowledge of the subject and, as will become immediately clear, I cannot live up to those standards. However, there is one matter on which I wish to make a brief point. Before doing so, I congratulate my noble friend the Minister on the clarity with which he introduced this subject and on the immense work that has clearly been done on it.

I have one worry, which is that these are enormous and complex changes that will impact on and affect many people who by definition are extremely vulnerable. While I very much support the aim and objective of what the Minister is proposing, and I hope that the pathfinder work is a success, I worry about the implementation of such complex proposals in practice. I share quite a lot of the sentiments expressed by the noble Baronesses, Lady Sherlock and Lady Hollis, and others.

It is therefore most important—perhaps this can be enshrined in guidelines—that those who will be advising the potential beneficiaries of the change are fully and adequately trained and fully understand what they will be talking about. More importantly, when it comes to actually carrying out the whole process of changeover, those who are at the decision-making end should exercise supreme patience and understanding. For me, patience is all important.

As the noble Baroness, Lady Hollis, said, many people will not have online access. I know, being of advanced years myself, how difficult it is to understand everything that is going on. I am reasonably but not fully conversant with all the complexities of new technology and new systems of communicating. I can often sense the impatience at the other end of the line in people younger than me, for whom it is second nature to handle these things. It is not so for everyone and it is most important that those who are in a commanding position assist potential beneficiaries to understand the process of changeover, and do so with extreme patience.

[Baroness Lister of Burtersett]

My Lords, the noble Lord, Lord Eden, said that he is not an expert but sometimes it is the non-expert who puts his finger on the key points, as the noble Lord did. I apologise to noble Lords in advance for the length of my speech but there are a lot of areas to cover, although I shall be leaving out a lot of important issues, including monthly assessment. I shall return to that, in case the Minister thinks he is getting off lightly.

I shall start with three general points. First, I add my thanks to the noble Lord for the work done by him and his team in providing us with so much information. It is only right to draw your Lordships’ attention to the 17th report of the Joint Committee on Statutory Instruments, which has reported these regulations for four instances of defective drafting. Although the DWP acknowledges each of those defects, as I understand it, it did nothing to put them right before these regulations came before both Houses of Parliament. I am told that that is unprecedented.

My second general point was made by CPAG—I declare an interest as its honorary president—in its evidence to the Work and Pensions Committee and concerns simplification. That goes back to the point made by the noble Lord. This is a raison d’être of universal credit, as the Minister made clear in his introductory remarks. CPAG, having acknowledged that of course simplification is a worthy goal which we all support, warns that it is very difficult to achieve in a heavily means-tested and conditionality-based system such as universal credit. Noble Lords who have been grappling with these draft regulations will no doubt nod wryly in recognition of that fact. CPAG points out that many complexities will remain and new complications will be introduced with the advent of universal credit.

The draft regulations reveal that many of the rules that currently cause great confusion will simply be imported into universal credit, despite what the Minister said earlier. The group warns that without good advice, many claimants will struggle to comprehend either their entitlement or the new obligation that universal credit places on them. As a result, the Government’s expectation that universal credit will be taken up more widely than the existing benefits could be misplaced, which also means that its estimates for the number of gainers could be inflated. The group argues that it is essential that the Government provide support for the advice sector as an integral part of the design, piloting and rollout of universal credit. That point is emphasised also by the Work and Pensions Committee, which calls for sufficient additional resources to be available to the advice sector to support a successful transition to the new system.

During the last major reform of social security in the 1980s—noble Lords who have been around a while will remember that time—welfare rights advice services were flourishing in local authorities and in the voluntary sector. Today they are a shadow of their former selves as the cuts take their toll. Could the Minister tell the House what resources will be made available to the advice sector?

My third general point concerns the very heavy reliance on guidance to put into effect the Welfare Reform Act 2012. Gingerbread, for example, argues that transferring details from regulations to guidance removes important safeguards, erodes accountability and transparency in decision-making and increases uncertainty for claimants. It has a particular concern about the over-reliance on guidance to put into effect the flexibilities available to job-seeking lone parents. My noble friend Lady Sherlock has touched on this already and I shall try not to repeat what she said in her able opening statement.

I raised this issue during Report stage of the Bill, late at night on 23 January 2012. The debate was very rushed for procedural reasons, but I thought that I had achieved something when the Minister assured your Lordships’ House that,

“advisers will take childcare responsibilities into account when setting work-related requirements, and we intend to set out some specific safeguards on this issue in regulations”.—[Official Report, 23/1/12; col. 915.]

He then referred to the right of claimants with a child under 13 to limit their work search to jobs that would fit around their children’s school hours. He rightly emphasised that the best way to prevent the inappropriate application of sanctions was to ensure that the requirements were reasonable in the first instance. It is therefore incredibly disappointing that the regulations do not adequately reflect this wise principle.