Jobseekers (Back to Work Schemes) Bill

Lord McKenzie of Luton Excerpts

Thursday 21st March 2013 Lords Chamber

Moved by

[Lord McKenzie of Luton]

At end to insert “but that this House deplores the Government’s incompetence in failing to provide sufficient information about its back to work schemes, which led to the need to introduce legislation with retrospective effect; deplores the need to introduce fast-track legislation when it took the Government four weeks to introduce the Jobseekers (Back to Work Schemes) Bill into Parliament and in spite of the Constitution Committee’s ongoing concerns about the fast-tracking of legislation; seeks assurances that the appeals process will be robust, speedy and efficient, and that the criteria of the independent report to be prepared under clause 2 will be strengthened to include greater details regarding the number of sanctions, the nature of those affected, the appeals process, the support available to those affected and the effectiveness of the hardship and mitigation provisions; and further seeks assurances that adequate legal advice will be provided to those affected by the introduction of this legislation”.

[Lord McKenzie of Luton]

My Lords, I thank the Minister for his explanation of the Bill, his officials for our meeting yesterday and the follow-up information that has now been provided, which we have the weekend to peruse.

This is a shameful day for the Government when they confront us with a Bill that is wholly retrospective in nature and which they are intent on fast-tracking through the parliamentary process. The Government have got themselves in a terrible mess because their ESE regulations purporting to introduce certain employment and training schemes have been struck down by the Court of Appeal as ultra vires and because the court judged that notices given to individuals under those regulations were inadequate. The Government ignored the advice of the Social Security Advisory Committee and, as we have heard, have not taken on board the comments of the Merits Committee and the history of defective drafting that the Minister acknowledged. I say as an aside that a longer-term issue arises from this about how we scrutinise secondary legislation, particularly some of the important stuff that comes through from the DWP.

It follows that sanctions for not complying with the ultra vires regulations which have been deducted from claimants are unlawful and that would apply to sanctions which have been stockpiled but not implemented should the DWP look to progress them. The Bill covers not only the regulations dealt with by the Court of Appeal but parallel regulations promulgated in the same manner. As we have heard, the Government have sought leave to appeal to the Supreme Court, which may yet finally settle this matter. The effect of the Bill is to cause those sanctions which are and were at the time unlawful to become lawful.

We now have the benefit of the Constitution Committee’s very robust deliberations on this Bill. So far as fast-tracking is concerned, it strongly disagrees with the Government’s assessment of the need for this. In particular, it points out that the Government were able to table amending regulations on the very day on which the Court of Appeal judgment was handed down, yet took four further weeks to get this legislation to Parliament, a point pressed by my noble friend Lord Foulkes. How does the Minister answer that point?

Even if we accept a truncated timetable, it is to be deprecated that the Government have been obdurate in being so limiting in the opportunity we in your Lordships’ House have to scrutinise the Bill. Undue haste and lack of attention to detail were what got us in this mess in the first place, and the risk is that we will compound it by so brief a process. I pay tribute to my noble friends Lady Royall and Lord Bassam for trying to get the Government to see sense on timing, albeit to little avail. Nevertheless, we intend to do our best in the time allotted to make sure that the full ramifications of this Bill are explored.

The Constitution Committee points out that retrospective legislation is not, of itself, unlawful but that, from a constitutional point of view, it should, wherever possible, be avoided. It urges that, in doing our work on this Bill, we should consider whether retrospectively confirming penalties on individuals who, according to judicial decision, have not transgressed any lawful rule is constitutionally appropriate in terms of the rule of law. Perhaps the Minister can help us on this point. On what basis do the Government consider that the rule of law should be set aside in these circumstances? Is it the belief that individuals would have somehow got off on a technicality, that the cost implications justify it or some other reason? Do the Government consider that different standards should apply when benefit recipients are involved?

For the avoidance of doubt, I should make it clear that we do not in principle oppose such schemes as the Work Programme or mandatory work activity and, indeed, we would have been responsible for some of the primary legislation which underpins the regulations in point, but we strongly criticise how the Government have gone about implementing some of them. The Work Programme in particular seems thus far to be little short of a disaster. There is an urgent need to develop effective programmes, especially to address the needs of young people.

We also strongly hold to the view that benefit claimants have rights but also responsibilities and that it is entirely reasonable for conditionality—the obligation to engage—to apply, and that a sanctions regime should underpin this. However, that sanctions regime should be reasonable, proportionate and transparent. In this regard, the amendment to the Bill in the other place which provides for an independent review of the sanctions regime, secured only by the interventions of my right honourable friends Liam Byrne and Stephen Timms, is vital. We plan to build on this in Committee to secure a wider review. We do this in particular because of a growing unease about the extended use of sanctions, beyond their role of underpinning conditionality, as a means of controlling benefit expenditure. As Stephen Timms pointed out in another place, there is growing evidence that it is the proliferation of sanctions which is driving the explosion of food banks across our country and, like him, we will wish to secure that any review covers a range of matters, especially how sanctions are being applied to individuals who have a mental health or other fluctuating condition.

We hear denials from Ministers in another place that the DWP does not have targets for sanctions. Can the Minister please tell us what management statistics are kept of sanctions and how these are routinely reported within the management structure?

If we have to live with retrospection then we need to ensure that there is a robust appeals procedure. Again we should be grateful for the intervention of honourable friends in another place for securing that commitment in the Bill. We will use our time in Committee to explore the extent of this commitment. The principle in this regard ought to be that individuals are in no worse position than they would have been in respect of appeals, hardship, good cause, mitigation than they would have been had the sanctions been properly made originally. For “stockpile” cases, where a sanction has not yet been applied, we need certainty on which regime is to be applied, as of course the system changed in October of last year.

It is understood that for the stockpile cases a withheld sanction will not be applied where somebody is now in work. Given that many people fluctuate between work and unemployment, the point at which the sanction is activated is therefore of importance. Can the Minister tell us what rules will govern this? Can he also say just how the rules will apply in relation to good cause or good reason when a sanction is activated some time after the failure to comply? What would have been contemporary evidence at the earlier time may be more difficult to adduce subsequently. Similarly, in relation to mitigation, what might have been possible earlier may be more difficult now. With regard to those who have actually been sanctioned, what, if any, information is now to be provided to them, especially given the view of the court that the original communication was defective?

The Minister will be aware of the provisions in the LASPO Act which become effective from 1 April and which deny legal aid support for welfare benefits advice. What will be the position of those seeking support for sanctions which have been stockpiled but now retrospectively applied? Will the old legal aid rules apply as though the sanctions were applied in due time? Can the Minister say what, if any, are the ramifications of the Bill for national insurance credits, which may have been restricted alongside the benefits under the sanctions regime?

There are a number of further issues we would wish to explore in Committee so that the full ramifications of retrospection in this Bill are understood. There are practical as well as constitutional issues arising from the Bill. We are told that some £130 million is at risk if this legislation does not proceed. That is likely an overestimate if not all the stockpile—for example, for those in work—will not proceed. Nevertheless, we have to be mindful that, whatever the sum, there is the likelihood that it will be recouped from further benefit restrictions if the Bill does not proceed.

We acknowledge that this gives the Government a dilemma, even if one of their own making. We are in this unhappy position because of the Government’s incompetence. It does not bode well for the growing chaos which is engulfing the department as it struggles with its benefit reforms. I beg to move.

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[Lord McKenzie of Luton]

My Lords, I thank all noble Lords who have spoken in support of the amendment. I say to the Minister that we did have a constructive approach this afternoon. This debate has focused clearly on a whole range of issues. I am bound to say that we still feel that the Minister is largely in denial over various areas or lacking information. Asserting that something is something does not make it a reality. That is disappointing thus far. The phrase which we particularly object to is that there is somehow a group of people who do not deserve a windfall when what they have done is to comply with the law as it stands. That cannot be right.

My noble friends have made powerful points on a whole range of issues, to which we will feel compelled to return when we get to Committee. Like others, I acknowledge the extremely important contribution of the noble Lord, Lord Pannick, who destroyed the Government’s case. I would say to the noble Lord that it would be very good if, from time to time, we could second him to the other place to help out with some of the deliberations there.

There is much still to discuss on this Bill in the short time we have available. Today, it is right that we register that the state of affairs which the Government have brought in respect of this matter is reflected in a Motion which deplores that position. I wish to test the opinion of the House.

Welfare Benefits Up-rating Bill

Lord McKenzie of Luton Excerpts

Tuesday 5th March 2013 Lords Chamber

[Lord McKenzie of Luton]

Does the noble Lord accept that the Child Poverty Act was not looking at just the metrics of the targets? Section 9(2)(b) talks about ensuring that,

“as far as possible that children in the United Kingdom do not experience socio-economic disadvantage”.

We had big debates about that. The Act requires strategies for,

“the promotion and facilitation of the employment of parents or of the development of the skills of parents … the provision of financial support for children and parents … the provision of information, advice and assistance to parents and the promotion of parenting skills … physical and mental health, education, childcare and social services, and … housing, the built or natural environment”.

It was not looking at just those targets; there is a whole range of strategies that this Government should be adopting if they are signing up to this Act.

[Lord Bates]

That is a more reflective point; it is just not exactly what the amendment before us today actually refers to. It refers to the financial measures of “absolute low income”. Is that the one that is based on 1998-99 and uprated for inflation in a direct line?

My point is that there is an absolute crying need, of which we are all absolutely aware. There is child poverty out there and we need to strain every sinew to ensure that we tackle it. Also, we have no doubt that on the current measure there is no question that it is going to increase. The Office for Budget Responsibility’s figures forecast that as the recovery gets under way, private sector earnings will increase by 4.6% per annum. It does not take a great mathematical mind—which is fortunate for me—to figure out that with what we are dealing with today, as well as the likely increase in private sector incomes, we are going to see the gap rising and almost an inversion of what has happened over the past few years happening in the future. But there are more indicators that need to be examined to give us a holistic picture and to ensure that we target scarce resources where they are needed most.

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[Lord McKenzie of Luton]

My Lords, I thank my noble friend Lady Lister for displaying yet again her knowledge of and passion for a very important subject and I pay tribute to all noble Lords who have spoken in this debate for their work on the cross-party inquiry. Some important issues have been raised, such as that of asylum seekers not being able to access paid work as a route to dealing with the circumstances they find themselves in, worrying reports about 10,000 children and extra costs that are imposed on public services such as the NHS, which were identified by the noble Lord, Lord Avebury. Clearly, that report is a telling report but it is a report currently for Government. However, we, too, will have to reflect on it as well.

The principle here is that we must be able to provide support to those in genuine need but must do so in a way that minimises incentives to economic migrants who could undermine public support for genuine refugees. There is an issue here that we need to be frank about. There is a balance between dealing with the issue of benefit tourism and separating that out from the needs of genuine asylum seekers. It complicates the picture. An important issue has been raised today and an important report has been prepared. It is currently for the Government to give their views on it, but we will have to reflect on its contents.

[Baroness Stowell of Beeston]

My Lords, the purpose of this schedule is to set out benefits, payments and tax credits to which the Bill provisions apply. Paragraph 1 refers to sums of social security benefits, payments and child benefit covered by Clause 1. Paragraph 2 of the schedule sets out the relevant amounts of tax credits covered by Clause 2.

The debate has of course been about asylum seeker benefits. As the noble Baroness, Lady Lister, acknowledged in her opening remarks, asylum seeker benefits fall under the remit of the Home Office and the UK Border Agency and are not part of this Bill. As has been said, there is an ongoing review of our approach to asylum support. In response to a question as to when this will conclude, we expect to finish conducting our inquiries before the end of the financial year. As the review is ongoing, there are some questions that I will not be able to answer, but I am none the less grateful for this opportunity to lay out how support for asylum seekers is provided.

As noble Lords have acknowledged, there are two types of support. First, there is support provided to those people who have made an application for asylum that has not yet been decided. That is provided under Section 95 of the Immigration and Asylum Act. People in that context are usually described as people under Section 95. Secondly, there are people who have been found by the UK Border Agency and by the courts not to need protection in the UK, but who cannot return home due to a temporary problem. They are provided for under Section 4 of the Immigration and Asylum Act. That is the Section 4 to which several noble Lords have referred today.

As noble Lords are aware, the support provided is expressly intended to meet people’s essential needs. By that we mean their food, toiletries and clothing. As an example, a family of four receiving Section 95 support while the decision on their application is pending is given £178 per week to cover these essential costs. The same family receiving Section 4 support is given £151 per week. The levels of support provide for the fact that asylum seekers have, as has been acknowledged by noble Lords, fully-furnished, rent-free accommodation with household equipment, utilities and council tax included. This support is temporary in its nature. It is true to say that the allowance is less than income support equivalents but that is because the recipients do not have to pay for other things such as utility bills or other costs associated with running a household.

Likewise, new mothers receiving asylum support do not have to buy a cot or things of that kind because sterilising equipment and such things are provided. They are given a grant to help pay for a pram and clothing. Healthcare and schooling are also provided. In addition to the weekly subsistence rates, families receive the following benefits. A single one-off payment of £300 may be provided to asylum seekers to help with the costs arising from the birth of a new baby. This is different from the maternity grant provided by DWP as recipients will not need to cover the costs of a new cot, stair gates and sterilising equipment. Pregnant women and young children aged between one and three each receive an additional £3 per week, and babies under one receive an additional £5 per week. Assistance with travel costs to medical appointments is available on application.

For those receiving Section 95 support, children receive between 80% and 90% of the equivalent mainstream benefits. Children on Section 4 support, which is intended to be temporary while their parents arrange travel home, receive over 60% of equivalent mainstream benefits.

Guaranteed Minimum Pensions Increase Order 2013

Lord McKenzie of Luton Excerpts

Thursday 28th February 2013 Grand Committee

[Lord Kirkwood of Kirkhope]

My Lords, I am pleased to follow my noble friend and concur with everything that he said. I have been doing uprating statements since 1984, I think, and I am here this afternoon really because I did not want to miss one. I have the boxed set, so I would feel that I was in the wrong place if I was not here. However, and this is me in my moaning mood, in the old days when men were men and women were women these debates were really big parliamentary occasions. These are huge sums of public money that we are considering this afternoon. This is no reflection on the Government at all, because while it is a question for the whole House I do not think that if we held this debate on the Floor of the Chamber there would be many more people here. I cannot help but say that it is a shame that we do not have more concern or attention from other colleagues albeit on what I accept is a ritual.

This is a very important annual debate, but this year it is different. My noble friend explained some of the differences, and I want to explore them a little more deeply, because, both qualitatively and quantitatively, these orders are different from any I have seen before. I make it clear that the Government are absolutely entitled, under the rules of the game as I understand them, to make these reductions against an economic background that we can all see. I am obviously not going to move against these orders, particularly in the context of the uprating Bill, which is in front of the House, but we are in exceptional circumstances. There is therefore a case for the Government to say, “For the next 12 months, Britain is a poorer nation and we all have to make a contribution towards getting back on to a steady state”. My point is that I am not confident that we will get back to a steady state for a number of years. I am not an economist and I do not know, but I really believe that the paradigm has changed and that we will all be forced to face up to the circumstances. That may be supporting the Government’s case more than I am accustomed to do, as the Minister might say.

The point I want to make on the back of that is that if we are in different circumstances if I can use the analogy of discretionary housing payments and if the Government are saying that the housing benefit changes are so profound that there have to be mitigating short-term, time-limited emergency procedures to take the sting out of them for low-income families, we may be forced to think about an equivalent emergency package for low-income households if year after year we find that we do not get back to trend levels of growth. I think that in future uprating debates we are going to be forced to look very carefully not only at adjusting the levels down but in addition at ways of getting behind people who are really at the end of the financial road. They have no scope.

The Government have recognised the plight of pensioners, and the rationale for that is understandable. My noble friend mentioned it: they have limited ways of increasing their earnings. The Government’s suggestion is that working-age households always have the option of work, but I wonder how realistic that is. If we are seeing food banks develop to the extent to which I fear they may develop in future in local communities, I think as legislators we will have to reflect that rather than just assuming that we are in a steady state and that the Government can take those savings out year after year. We might all need to think about how we tackle this. Part of that might be exceptional measures for low-income households.

The evidence comes at me every day from every source. This morning, I picked up a very interesting piece of evidence from the Money Advice Trust, which is a very important institution that I watch because I am interested in the development of payday loans. There are problems about some of the administration and regulation of payday loans. The statement from the Money Advice Trust demonstrates the changes that are happening underneath us and that are affected by this uprating statement. It reports that:

“its National Debtline service took over 20,000 calls for help with payday loans in 2012 … The figure represents a 94 per cent year on year increase, and an increase of 4,200 per cent since the onset of the financial crisis in 2007”.

I know a little about payday loans. Working families take advantage of them. I am not against payday loans. Short-term unsecured credit has a role to play. I do not think it is regulated properly, but that is a different argument. These are working-age families. In my estimation, these levels of increase are not going to get any less any time soon. I recognise that something has to be done with the deficit reduction, but we may need to have a grown-up discussion about this across the parties and across Parliament to make sure that we are not ignoring what is happening in a lot of our challenged communities, particularly in the old social-rented council estates of my native Glasgow, for example, where I know that some these changes that we are introducing on top of everything else that is happening will produce levels of financial challenge for particular groups. Lone-parent families are one group that I particularly care about, and I know that colleagues know even more about that than I do.

I am concurring with this order on the basis that we need to think about other ways of providing some sort of emergency relief—hopefully only short-term—as well as what we are doing in these orders. If we do not start thinking about that now, we will suddenly find that we will be hit by levels of malnutrition and child poverty that will be found completely unacceptable by the population at large. We have to avoid that at all costs.

Finally, I apologise for this because I should have checked before I came, but I do not know what the Government Actuary has to say about the National Insurance Fund, which is appearing in not the means-tested but the contributory dimensions of these orders. Presumably, no Treasury grant is being requested, although I would be surprised if that was the case. Can we have a statement from the Minister to the effect that the department and ministerial team are comfortable with the Government Actuary’s view of the orders as they stand? That is important for the Grand Committee in its consideration of these important orders this afternoon.

[Lord McKenzie of Luton]

My Lords, I thank the Minister for her introduction to these two orders. We do not have much to raise on the first order. The GMP is a promised income for those who contracted out before 1997, so the order is a routine process, which we support.

I have just one question. The Explanatory Note refers to there being no new costs on the private or public sector as a result of these orders, but an uprating cost clearly has to be borne by someone: the pensions providers. Is that not the case?

We have covered much of the ground on the Social Security Benefits Up-rating Order, as the noble Lords, Lord German and Lord Kirkwood, have said. I do not mind having a rerun of this, although much has already been said and we still have more Committee proceedings to go, let alone Report, so I shall resist the wholesale revisiting of our debates, although if provoked I might withdraw that assurance.

The noble Lord, Lord Kirkwood, as ever, made an incredibly valuable contribution on where all this is heading. We all know that the deficit has to be dealt with, although we might argue with how that is being done. But we have not seen as part of an impact assessment—and it is something I would ask about—the impact of this uprating order on child poverty. What assessment, if any, have the Government made of this uprating order’s impact on things such as personal debt and poverty more generally? What do they think about the food banks, which are growing up in our country at the moment? One opened in Lewisham, but unfortunately it was on the day of the universal credit regulation, so I could not go. It is just one of just hundreds that are growing up in a country that we know could by any standards be classified as rich.

We have heard about the basic state pension and the much lauded triple lock—the highest of earnings, prices or 2.5%, in this case. We have no difficulty with the basic state pension having been a higher share of average earnings for some time, although is that not largely because average earnings are so depressed because of the state of the economy? My right honourable friend Stephen Timms in the other place dug away at the triple lock, saying that it is certainly a success in terms of rhetoric but that its practical implications have been much more limited. He knew of one that was not operated because RPI gave a better result, and in year 2 inflation was used. It was only in year 3 that the 2.5% kicked in, in excess of inflation. On the old basis of uprating by RPI in those latter two years, the award would have been higher. Perhaps the Minister can confirm that 1.5 million pensioner households are missing out compared with what would have been the position had the standard minimum guarantee been uprated by earnings and the savings credit threshold frozen.

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My noble friend Lord Kirkwood raised the issue of child poverty, as did the noble Lord, Lord McKenzie, and I shall make a couple of points in response. My noble friend asked how we are keeping these issues under review in the context of the long-term effects of some of these changes. In addition to the measures within the Child Poverty Act, Alan Milburn and his Social Mobility and Child Poverty Commission will carry out an annual review of the Government’s activities in regard to the requirements set out in that Act. The first review will happen this year and will ensure that we are subject to proper scrutiny. We want to ensure that we protect people, and if anything we are doing puts anyone at risk we need to know about it. Those are the kind of arrangements that we are putting in place.

[Lord McKenzie of Luton]

What is the Government’s assessment of the effect that the measures in this order, let alone those in the uprating Bill, will have on vulnerable people? Have the Government concluded that it will have no effect or an adverse effect? If it is as the Minister has said and the Government are mindful, as I am sure the noble Baroness is, of not pushing people into poverty, what will be the effect of this order?

[Baroness Stowell of Beeston]

I was about to remind noble Lords that we have carried out an impact assessment of both the order and the Bill on child poverty. That is in the public domain. However, we cannot consider only the impact of these welfare changes; other dynamic changes are being made that will have an effect on child poverty. For example, the introduction of universal credit is expected to lift up to 250,000 children out of poverty. There are varying ways of looking at its impact on child poverty. We want to make sure that it is done in the round and that it is not considered in a one-dimensional way. We are very much seized of this issue and take it seriously.

My noble friend Lord Kirkwood asked about the GAD report. GAD has said that the balance of the national insurance fund at 31 March 2014 is expected to be greater than one-sixth of the amount of benefit payments in 2013-14 and that there is no immediate need to address the fund balance. We welcome this statement. GAD has also said that there is no immediate need to do anything to address the risk of the fund falling below the one-sixth threshold. It will review the situation again in a year’s time.

There were other points that the noble Lord, Lord McKenzie, made which I have not covered already. He asked about various costings. I think that he asked about statutory maternity pay and the WRAG component. I will have to write to the noble Lord with the details of that. He also asked for information on the average time that people are on ESA—the work-related activity group. Fewer than half of new ESA claimants are on the benefit for a year, but perhaps that is something else on which I could write to the noble Lord with a little more background.

The noble Lord, Lord McKenzie, also asked me—I may not have had an answer through on this; sorry, I have it here—which benefits are not covered by this order but are in the Bill. I think he was asking whether there was any inconsistency. He is right that this does not include tax credits; there will be a separate order on them, which should be coming soon. I think the only other significant difference between the order and the Bill is on child benefit.

[Lord McKenzie of Luton]

I also asked the related question of whether there is anything that is not uprated by only 1% for a CPI amount.

[Baroness Stowell of Beeston]

That would include child dependency increases and capital limits, but I think I will have to write with a full list on that one.

The noble Lord, Lord McKenzie, asked about the 1.5 million pensioners who will see a loss from the savings credit measures. The pass through to the triple lock is a cost-neutral measure: 1 million people gain an average of 50 pence. They are the poorest pensioners, but as this is cost neutral some will obviously see a smaller cash increase. One-and-a-half million pension credit claimants will see this smaller cash increase, which is on average about 35 pence. We have done this to provide protection for the poorest pensioners and ensure that they see the cash increase from the triple lock. As I said at the beginning, my main point here is that this order ensures that the poorest pensioners receive the proper entitlement to that triple lock and get its full benefit. As I have said, I will respond to any outstanding questions that I have not covered in writing.

In conclusion, my main point is that this uprating order is one for the long term, but it is critical to have regard to those who will be affected by the order today, and we have done that. I have already explained that we are spending an extra £2.8 billion on uprating pensions and benefits in 2013-14, enabling us to protect key benefits and vulnerable groups, but we are also taking decisions that will matter to all families in the years to come. Those decisions will help us to secure a better economy and a better future for everyone. That is something which I hope all noble Lords can support and it is on that basis that I commend these orders to the Committee.

National Employment Savings Trust (Amendment) Order 2013

Lord McKenzie of Luton Excerpts

Thursday 28th February 2013 Grand Committee

[Lord German]

My Lords, I have only one question in relation to the changes in this order. I suppose that I should declare an interest in that my wife works for a small charity which is seeking to become a member of NEST for its employees. However, I do not think that I really have an interest in the sense that I am relating my question to the technical change removing the requirement for the trustee to consider next of kin. Therefore, it is a general question rather than being specifically about me.

The Explanatory Memorandum talks about rules, with a small “r”, in England and Wales, Northern Ireland and Scotland, but further on it talks about doing something differently in accordance with Rules with a capital “R”. In terms of next of kin, what is being changed here in respect of those to whom payments should be made? Why is there a £5,000 limit on death benefits being transferred, and what Rules, with a capital “R”, will apply when the trustee looks at the question of those to whom they should pay sums of less than £5,000?

[Lord McKenzie of Luton]

My Lords, I thank the Minister for introducing this order and I say upfront that we will be supporting it. Perhaps I may revert to an item touched upon by the noble Lord, Lord German, which I was going to raise in our previous debate concerning people’s expectations of pensions, the importance of auto-enrolment and certainly the importance of NEST as a key component of that. When the Turner commission looked at the prospect of auto-enrolment and how employer pensions were to be organised in future, I think that the criteria around contribution levels and the band of earnings to which they applied were struck so that over a working lifetime the required level of replacement earnings would be produced. I am bound to say that with what has happened to the band of earnings, contribution levels have not shifted. I have not seen an update of that calculation and I do not know whether there is one—I think that it is an adjunct to this order—but if there is, it would be interesting to see it.

I have one or two questions in respect of some of the detail. We understand why the discretionary period to allow self-enrolling members to be accommodated is necessary, but can the Minister update us on the current elongated process for enrolment? I do not have that fully in my mind. What is the position of new self-enrolling members at the end of that period? Do they have an unfettered right to enrol? Perhaps we can use this occasion, given that NEST has been up and running for a little while now, although with regard to auto-enrolment larger employers are involved first, to find out whether we have any early numbers for the employers and employees who are enrolled.

We support the lifting of the obligation dealing with cross-border obligations and the other essentially technical amendments. I have a small point on terms and conditions. The Minister said that the proposed change would mean that self-enrolment individuals, as others, do not have to agree to members’ terms and conditions, so what is the purpose of those conditions? What relevance do they have? As for multiple jobs, again we support the change that has been outlined, but what is the position on multiple jobs within the same employer group? There is a maximum of 4,400 but, if that can be exceeded and there can be multiple jobs, are there any constraints if those multiple jobs are within the same group, possibly on a specifically organised basis to circumvent the limit?

With those few small inquiries, I say again that we support the order and are pleased to see that NEST is making progress.

[Baroness Stowell of Beeston]

My Lords, I am grateful to the noble Lord, Lord McKenzie, for his support for this order and, indeed, for the support from my noble friend Lord German. I will try to respond to a few points, but I must say straight from the start that I will probably have to write to the noble Lord on many of his queries. This being quite a technical order with quite a lot of associated technical questions, I am afraid that I know my own limits. This one might take me beyond them, so forgive me from the start if I have to follow up in writing.

The noble Lord, Lord McKenzie, asked me for the latest figures about membership of NEST. I have those in front of me. It has been operating since July 2011 and automatic enrolment commenced, as we know, in October last year. We estimate that by the end of staging it will have 2 million to 4 million members and 750,000 participating employers. To the end of January, NEST has more than 200 participating employers, around 45,000 members and a little over £2.2 million in assets under management.

The noble Lord, Lord McKenzie, asked, in going back to the last debate that we had on the last order, about the percentage of average earnings that people will accrue as they enter retirement. If there is anything more that I can say on that, I will have to follow up in writing.

The noble Lord, Lord German, asked about next of kin and what is happening there. The requirement for NEST to have to consider next of kin is in line with the Administration of Estates Act 1925. In Scotland, a person is entitled to moveable estate on intestacy. These are very specific; the change allows NEST to determine who to pay survivor benefits to. The rules with a capital “R” are the NEST rules that support the order. On why the trustee’s discretion to pay survivor benefits is applicable to pots only under £5,000, the Administration of Estates Act specifies a limit on the amount of property allowed to be disposed of on death without the necessity for probate or other proof of title. That limit is currently £5,000.

The noble Lord, Lord McKenzie, asked about the position of self-enrolling members after the staging period. They will be able to join NEST, as NEST has an obligation to accept them. He also asked about what he described as the elongated staging profile. Currently, large employers have staged and medium employers will become subject to the duty from April 2014. Smaller employers will become subject to the duty from June 2015, and all employers will be in by February 2018.

The noble Lord, Lord McKenzie, also asked whether there is an update on the calculation of contribution levels. I think I am about to answer something that I promised to write to him about. In the hope that this answer will mean a shorter letter, if not another letter, the qualifying earnings band is from about £5,500 to about £42,500. A revision order has been laid in draft and will be debated shortly. The noble Lord is correct in saying that the contribution rates remain as in the 2008 Act.

[Lord McKenzie of Luton]

That is very helpful. I am specifically interested to see, if it is available, what that would mean if one revisited the original Turner commission’s calculation to see what, over a working life with that earnings band and those contributions levels, that would be likely to give in terms of the level of replacement income for somebody about to retire. There was a specific calculation that drove many of these parameters at that time. If there is no update, it is of no great moment, but if there is, I would be interested in seeing it.

[Baroness Stowell of Beeston]

If there is anything available that I am able to provide, I will do so. The noble Lord also asked whether there were any constraints on minimum contributions within the same job. Where there is an upper limit on contributions into a scheme, however expressed, the scheme can still certify as long as the upper limit could not result in contributions that are less than those required by Section 20. I think I am right on that one.

Since I have run out of pieces of paper in order to try to respond to the questions that noble Lords have generously put to me today, I will conclude by saying that I am grateful for those contributions. The changes in this order are consequential, minor and technical. They are deregulatory and will ensure NEST continues to operate efficiently for employers and members who use it. NEST is critical to the success of automatic enrolment. I am grateful to noble Lords for their support today. I commend this order to the Committee.

Welfare Benefits Up-rating Bill

Lord McKenzie of Luton Excerpts

Monday 25th February 2013 Lords Chamber

Moved by

[Lord McKenzie of Luton]

2: Clause 1, page 1, line 5, at end insert—
“(1A) In the case of employment and support allowance receivable by claimants of the support component of the allowance (who receive both personal allowance and support components) the mandatory 1% uprating stipulated in subsection (1) shall not apply to any components of the employment and support allowance (including personal allowance and support components) receivable by them.”

[Lord McKenzie of Luton]

My Lords, this is a focused amendment concerning disabled people who are in the support group for the purposes of the employment and support allowance. Noble Lords will recall that in the main phase of ESA an individual will receive a personal allowance and an additional support component. Those are currently £71 and £34.05 respectively. They will increase to £71.70 and £34.80 under the Social Security Benefits Up-rating Order 2013. This is an increase of 1% for the personal allowance but a CPI increase of 2.2% for the additional component. We will have the opportunity to debate the regulations shortly, although, of course, they cannot be amended. Under income-related ESA, other premiums may be applicable, such as the enhanced disability, severe disability and carer’s premiums. Of course, the final amount of any payment depends also on the income, if any, of the claimant.

So far as the Bill is concerned, for those in the support group, the support component and the premiums are outwith the maximum 1% cap, and we support this. However, that is not the case for the personal allowances for a single lone parent and couple, and it is this injustice that we are seeking to rectify. In doing so, we are placing reliance on the commitment made by the Secretary of State for the DWP. On 8 January 2013, he said:

“I stand by what we said originally, and I say it again: in this Bill we have protected people on disability living allowance, as well as people in the support group on ESA”.—[Official Report, Commons, 8/1/13; col. 194.]

That is not the case. Noble Lords will recall that those in the support group are those with the greatest challenges who are deemed neither fit for work nor work-related activity. They are not generally in a position to improve their financial background by way of accessing the labour market and I believe it is generally accepted that they experience higher living costs. The amendment would not represent a hugely expensive change to the Bill, but this is fundamentally about an issue of fairness and insisting that Ministers carry out their promises.

Amendment 3 stands in the name of the noble Lord, Lord Low. I will perhaps offer our view on that amendment when I reply on my amendment. I beg to move.

[Lord Low of Dalston]

My Lords, I support the amendment moved by the noble Lord, Lord McKenzie, to which I have added my name, but I rise principally to speak to Amendment 3, which is in my name alone and provides that the 1% uprating should not apply to benefits paid to claimants in the work-related activity group.

The amendment is essential if the Government are to fulfil their pledge to protect disabled people from the 1% uprating cap. Only disabled people are in the work-related activity group. The assessment process ensures that non-disabled people do not qualify. A recent DWP study tracking those receiving ESA over 18 months revealed that three-quarters of recipients were undergoing regular treatment for a health condition, including a stay in hospital for some. ESA for those in the work-related activity group is paid in two parts—the main component, which is equivalent to jobseeker’s allowance and worth about two-thirds of the total benefit, and the work-related activity group component, which is worth the other third. Many disabled people are being placed in the work-related activity group. Capping increases in their benefit at 1% will mean that households receiving ESA in the work-related activity group will be £87.65 a year worse off. The Government’s proposals to exempt from the 1% cap the support group component for those placed in the support group mean that less than a third of ESA payments for less than half of disabled people receiving ESA will be protected. That is what the amendment of the noble Lord, Lord McKenzie, would achieve, but it would address the shortfall only for the quarter of a million disabled people in the support group.

The most recent DWP figures show that there are 360,000 disabled people in the work-related activity group who also need protection. This amendment would achieve that. One third of disabled people in the UK were found to be living in poverty before the global economic crisis. Disabled people routinely experience higher living costs associated with their disability on things such as equipment, personal assistants and special diets. Disabled people experience the same increases in general living costs as everyone else: food inflation is running at 4.5% and travel inflation at 7%. Unfortunately, disabled people were not able to catch up financially during better economic times. We should not allow them to slip further behind as a result of this Bill; rather, we should ensure that the Government’s objective of protecting disabled people is fully delivered.

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[Baroness Stowell of Beeston]

My Lords, I am grateful to all noble Lords who have contributed to this debate. It is probably worth my summarising that the two amendments we are talking about seek to make changes to the ESA. Amendment 2 would remove from the Bill the 1% increases in the personal allowance for those in the support group, while Amendment 3 relates to those in the work-related activity group.

I understand why noble Lords have tabled these amendments and raised the points that they have in this debate. We all want to protect those who are furthest from the labour market, or who have additional costs because of disability, and that is what the Government are doing.

On the points raised by the noble Baroness, Lady Meacher, referring to the principles outlined by my noble friend Lord Freud during the passage of the Welfare Reform Act, I am clear that those principles—that we will target welfare spending to those most in need and ensure that we do not do anything to disincentivise people from pursuing work—remain intact via this Bill. We are prioritising those in greatest need.

It is right to say that there will still be some effects among disabled people through the Bill because we are including the personal allowance for both types of ESA as well as the additional element for those in the work-related activity group. However, we are ensuring that all those benefits that are paid specifically to cover the additional costs associated with disability are not included in the Bill. For example, the disability living allowance and the attendance allowance are protected, as are the disability premia in benefits such as income support, ESA, JSA and housing benefit, and we have excluded the disability elements of tax credits from the Bill.

In many cases, the basic rate of ESA is just one element of the total package of benefits received. Many people on ESA are also in receipt of other benefits, such as DLA, to which I have just referred, and housing benefit. It is worth noting that around 65% of people in the support group also claim DLA. The point I am trying to make here is that ESA is not the only benefit that most people are relying on. People in the support group receive a component worth £34.80 a week, as has already been said, and they are also automatically entitled to the enhanced disability premium of £14.80 a week if eligible for income-related ESA. We should not forget that some people will be eligible for the severe disability premium or the carer premium. All these are protected, like the support component. Income-related ESA households where a member of the couple is over pension age also receive a pensioner premium to ensure that the rate of benefit is the equivalent of the pension credit rate. This rate is also uprated as normal.

My noble friend Lord German asked in particular about the personal allowance aspect of ESA and why it is included in the Bill. It is important for me to be clear that the personal allowance is there to provide basic support. It is designed to meet the basic needs of all those on out-of-work income-related benefits. The personal allowance is consistent across all benefits which relate to those of working age. There is a standard amount. For single people, it is currently £71 a week. It is important that I am clear that this rate is common across all claimants who receive ESA, JSA, income support and housing benefit and reflects the fact that they perform a similar function of providing basic support for everyday needs. They do not reflect disability or the additional costs of disability, so therefore it is right that they are set at a standard rate. That is the rationale for including the personal allowance in this Bill and for the personal allowance to be subject to the 1% cap on annual increases. Treating one personal allowance rate differently from that in other benefits would mean that there would be no clear level of income at which state support is set and at which access to other help would be available across a wide range of services. It would also introduce an element of complexity in terms of the coherence of the benefit system which would introduce new challenges and be likely to add further costs to the running of the overall system.

As has been acknowledged, the support group component is protected, so it is not included in the Bill. It is the component element of ESA which differentiates the need based on the effects of a disability or a condition. That particular component relates to the effects of a specific disability. The support group component is paid in recognition of the fact that more severely disabled people are less likely to be able to increase their income by moving into work and may have additional needs. Therefore we pay those in the support group a higher increase than those in the work-related activity group.

It is worth making the point that for those in the work-related activity group, ESA is not like the old incapacity benefits that usually led to people being in receipt of that benefit for a long period. This is intended to be a short-term benefit for those in this group. Those who are placed in the work-related activity group are there because they have been found able to prepare for work. As such, they will be referred for appropriate support, training and provision to ensure that they get the help they need. ESA for people in that group is intended to be a short-term benefit and we expect these claimants to be closer to the labour market and be in a better position to prepare for work. Therefore, while they may not be looking for work immediately in receipt of that benefit, they have some ability to affect their own incomes. That is why it is right that the annual increase for those in the work-related activity group should—unlike that for those in the support group—be fully within the scope of the Bill.

In his opening remarks, the noble Lord, Lord McKenzie, again referred to the alternative option of the Government bringing forward annual orders rather than introducing the Bill. It is important for me to stress heavily that a central purpose of the Bill, in addition to achieving savings, is to provide certainty. I will say that regularly throughout the passage of the Bill; it is an important aspect of what we are doing. I know that the noble Lord seeks to undermine that, but it is central to what we are trying to do. It is important that we recognise the long-term benefits of providing that certainty; that is how we retain the credibility of the Government’s fiscal policy.

[Lord McKenzie of Luton]

Can the Minister explain to me the certainty that is achieved for claimants on the real value of their benefits as a result of the Bill?

[Baroness Stowell of Beeston]

The point I am making, which the noble Lord is clear about, is that the Bill still provides annual increases in benefits, but at a reduced rate for some elements of those benefits. We are doing this in the way that we propose because it adds to the certainty. As I told the noble Lord when we were outside the Chamber, the IMF was very clear that to anchor market expectations, policymakers need to specify adequately detailed medium-term plans for lowering debt ratios, which must be backed by binding legislation or fiscal frameworks. This is part of what we are doing, and why it is important.

As I have said, despite the economic situation, which we have already discussed today at some length, we have found the resources to fund a 1% increase in working-age benefits and, in doing so, protected the incomes of disabled people as far as we can—especially those elements which are provided to cover the additional costs of disabled people.

The noble Lord, Lord McKenzie, said that it would not be hugely expensive to accept these amendments and to make this change. It is important that I make it clear to the Committee that accepting these amendments would mean a loss of £340 million in savings, which we would have to find elsewhere. Those in the work-related activity group are deemed able to prepare for work and, as such, are better placed to be able to improve their income levels. Therefore, we believe it right that the component is also within the scope of the Bill.

Personal allowance rates are common across the working-age benefit system, as I have already said, reflecting the fact that they perform the same function: to provide basic support for everyday needs. Accepting these amendments would therefore break away from that model and would create additional complexity in the benefits system. Our proposals are proportionate. Although I understand the concerns and points that have been raised in the debate—please believe me, I do—what is being proposed here is fair. I therefore ask the noble Lord to withdraw his amendment.

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[Baroness Hollis of Heigham]

My Lords, this simply will not give you certainty. The whole of the impact analysis brief was a set of mythological language. This will not do what the Government claim. I understand that they are seeking to cut possible expenditure demands but to say that this is about certainty is simply an abuse of language, if I may say so.

[Lord McKenzie of Luton]

My Lords, I thank all noble Lords who have spoken in favour of Amendment 2: the noble Lord, Lord Low, the noble Baroness, Lady Meacher, and my noble friend Lady Lister. From the Minister’s response it seems that this is all about a better future for everyone, and that seems to encompass a rather strange load of decisions. My noble friend Lady Lister asked a question which I do not believe was answered. She raised the comparison with pensioners who are being protected—and we support that because they are not so readily in a position to make up their income by accessing the labour market. However, people are in the support group because they are not expected to be able to be in, or are some distance from, the labour market.

In respect of the WRAG, I think that the Government are generally drawing closer together the JSA group and the WRAG to blur that distinction. People in the WRAG were not expected to look for work. Yes, they were expected to be fit and were deemed to be fit for work-related activity, but there is a constant push by the Government to blur that distinction and ease them much more towards the JSA category, if that job is not being done, in any event, by the WCA and Atos.

The noble Lord, Lord German, asked whether this is a rough edge. It seems to me that it clearly is a rough edge—it has not been overlooked, and it is not being dealt with in any other way. It is a hit that people in the support group and the WRAG have got to take. It seems to me that this is incredibly mean-spirited. It just focuses on the support group—the people who are in the most difficult position and not able to access employment. The noble Baroness said that 65% of them were on DLA and acknowledged that DLA is outwith the Bill. What is the Minister’s understanding of the percentage of people in the support group who will end up on PIP rather than DLA?

In Amendment 3, the noble Lord, Lord Low, makes a broader case for removing ESA from the scope of the 1% restriction on uprating for those who are in the WRAG. It obviously goes further than our Amendment 2. We have made clear that the 1% uprating restriction should be removed in its entirety from all the relevant sums and amounts as defined, and we are grateful for the support of the noble Lord in that endeavour. If we are successful, the noble Lord’s amendment, and several others including our own, would fall by the wayside. Should we be unsuccessful we need to consider how we can at least move some way towards that objective.

As we have just discussed, we focused in our Amendment 2 on those in the support group. We did that because those affected are the most seriously disadvantaged—the furthest from the labour market—and because the Minister has made a commitment that this group would be protected. That commitment clearly is not being met. The noble Lord’s proposal that we should go further, beyond the support group, is entirely reasonable. Those in the WRAG are similarly judged under the WCA as not being fit for work although capable of work-related activity. But for those who seek work, we know that the prospects are not good. Not only do we have a work programme which is failing overall but there is at least anecdotal evidence to suggest that the hardest to help are not being properly supported. We have the shutting of Remploy factories, concerns over the looming bedroom tax, the restrictions on contributory ESA and the loss of the severe disability premium in universal credit. These have all added to the pressure on disabled people.

As the noble Lord, Lord Low, has said, the Bill will mean that people in the WRAG will be some £191 a year worse off by 2015. If we cannot carry the day on removing the 1% restriction across the board, we would look to support the noble Lord should he decide to pursue his line on Report. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

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There we are: those in low-paid work will lose the most as a result of this Bill; 71% of the families affected are at or below average income. The IFS estimates that the combined impact of all the tax and benefit changes introduced between 2010 and 2015 will reduce the incomes of the poorest fifth of families with children by around 7%. Will that really do what the Government want to do? I get increasingly worried by all the evidence that is sent to us, and it is evidence from people who are working on a daily basis with the families about whom we are most concerned. I really hope that the Government will think again on some of these areas.

[Lord McKenzie of Luton]

My Lords, I start by thanking the right reverend Prelate, the Bishop of Leicester, for these amendments. I hope he will understand that, should he press them to a vote tonight, he would present us with a little difficulty. I doubt that will come as a surprise. The difficulty is that the strictures under which we are operating mean that we cannot at this stage make commitments in respect of the next Parliament. Clearly, an uprating in the tax year beginning 5 April 2015 would operate in the subsequent year, which crosses that particular line.

Having said that, there is much to support and sympathise with in the case made by the right reverend Prelate and the noble Lord, Lord Kirkwood. We on this side wish universal credit well and hope that it will deliver that which is promised for it. However, we know that there are a number of teething problems; we think the Government have been right to extend the introduction way beyond the original intention. It therefore seems to me that very important questions have been raised about why we should at this stage include universal credit within these provisions. We on these Benches want to see everything outside this Bill; we think that would be the right way forward, but certainly the universal credit would be a start.

The issue of work incentives is very important. Although we probably do not espouse it often enough, I think we have a shared view around this Chamber about the importance of work, which is the route out of poverty for most people. It generally seems to be better for their health and well-being and all those things. Therefore, it is crucial that any measures such as this support the proposition that we should try to get people into work when they can work, and help them get closer to the labour market when they cannot.

The noble Baroness, Lady Howe, widened the debate to discuss the broader impact of this Bill on child poverty. The figure of 200,000 is the one that was identified by the Minister in the other place. That comes on top of IFS figures, which suggest that another 800,000 children are going into poverty as a result of measures since 2010—in a sense, reversing the gains of the past decade for children and women, too. Therefore, without being able to support the wording of the amendment formally tonight, there is much for us to reflect on and support in the right reverend Prelate’s proposals. I hope that between now and Report—particularly picking up the points made by the noble Lord, Lord Kirkwood—we could end up in a position where we were not only in sympathy but were marching through the same Lobby.

[Baroness Stowell of Beeston]

My Lords, we have covered a lot of ground with these amendments tabled by the right reverend Prelate the Bishop of Leicester. I will do my best to cover that ground. It is probably worth starting by noting some common issues raised by this group of amendments. They come under the headings of their impact on savings from the Bill, their impact on certainty—as I have already talked about—and the inclusion of in-work benefits. I will then refer to some of the points related to housing. Before I begin, however, I note that the right reverend Prelate has added his name to Amendment 13, which removes housing benefit and personal allowances from the schedule, but Amendment 13 is to be discussed later as part of a different group.

[Lord McKenzie of Luton]

I should have said when I got up to speak that Amendment 13 was originally part of this group but unwittingly got moved to be grouped with two later housing benefit amendments in the names of my noble friends. I apologise to the right reverend Prelate for that.

[Baroness Stowell of Beeston]

I was going to say that because Amendment 21, which inserts housing benefit and personal allowances into a different part of the schedule, and Amendment 5, which places a duty to uprate by at least prices, are reliant on Amendment 13, I will speak to the amendments in this group as if Amendment 13 were assumed. I hope that makes sense. Hopefully, we are all following each other in respect of these different amendments.

Noble Lords have already outlined the effects that the amendments would have on the Bill. In broad terms, the legislation would revert to the existing annual exercise of discretion by the Secretary of State. To remove these benefits and payments from the Bill would reduce savings by around £800 million in 2015-16: that is, around £600 million that year from removing universal credit, which would increase over time as more households moved to universal credit; around £160 million that year from removing working tax credits; and, under Amendment 13, around £60 million that year from removing housing benefit and personal allowances—in total, an £800 million reduction in the Bill’s savings in the final year, which is about 40% of the Bill’s savings.

I have to disagree with the right reverend Prelate and say that it would simply not be affordable to give up those savings. If we look at the two years of the Bill together, we are talking about a loss of £1.1 billion in savings. As I have said before, none of these decisions is easy, but we have to recognise that if we do not take the savings that this Bill provides in the way it does, this money will have to be found elsewhere.

While I am talking about general matters, it might be worth responding to a point made by the noble Lord, Lord McKenzie, either just now or in an earlier debate—I cannot remember—about the wide range of changes that the Government are introducing in welfare reform. The noble Baroness, Lady Hollis, is not in her place, but she also made the point in an earlier debate. We are making a lot of changes to the welfare system. We absolutely believe in those changes; we think that we are doing the right thing and that those changes will result in a much more effective system. It is safe for me to say that in broad terms most of those changes have received support from the House. There has been recognition on all sides that the welfare system as it stood needed to be reformed. As we move into 2013-14, a lot of those changes will be implemented, so it will no longer be a discussion in theory; it will be real in practice. Of course, as we go through the implementation phase, we will ensure that all changes are implemented in a way that we designed them to be made and that they have the effect and the outcomes that we set out in the legislation. This is not something that we will not be closely involved in to make sure that things operate in the way that we intended.

While talking about general issues, it is perhaps worth responding to points raised about cumulative impacts and assessments. I know that my noble friend Lord Newby referred to this in his response to the first group of amendments, but the matter having been raised again it is worth making a couple of points. The Government introduced a new system of greater transparency around impacts and we publish the impacts of government policy every time there is a fiscal event. The last time we did this was in the Autumn Statement. That cumulative impact includes information about changes to all tax, welfare and public spending policy that can be modelled since the June Budget of 2010.

So far that analysis has not included universal credit, and a separate analysis shows that 75% of the gains from universal credit goes to the bottom 40% of the income distribution. It is worth adding that the IFS has acknowledged that the effects of reforms, such as those to DLA and housing benefit, cannot be precisely modelled, but as I say we are producing quite a lot of information. It is there and publicly available, but let us not forget that all those assessments are against the previous Government’s plans for this period—this Parliament, had they come into power—and we have acknowledged that those plans were not affordable. We are assessing something against a benchmark that we have already acknowledged we cannot afford.

A key principle of this Bill is the certainty that it gives as part of the Government’s fiscal plans. I have said that before, and said then that I hoped noble Lords would not tire of me saying it. I will not tire of saying it to the House as it is important. By taking these benefits out of the Bill and thereby restoring the annual exercise of discretion in relation to prices, the amendments would undermine the key principle of certainty. Amendments 4 and 5, if taken with the others, would make it a requirement to uprate universal credit, working tax credit elements and housing benefit personal allowances by at least prices. I am not sure whether that is the intention, but the amendments would take us further than existing legislation, while not giving a firm commitment to addressing the deficit that the Bill provides.

Noble Lords have talked about the inclusion of in-work benefits and questioned whether these should be included. We cannot escape the fact that some working households will be affected. I am not seeking to suggest for one moment that they will not. Tax credits, for example, account for around £30 billion of expenditure this year. Tax credit spending rocketed under the previous Government by an extraordinary 340% compared with the benefits they replaced. Eligibility for tax credits was extended to nine out of 10 families with children, so it would be unrealistic to exclude the benefits received by working people from these decisions that we are taking. For my part I think people understand that. There is a general recognition that this element of spending could not be excluded, particularly when those in work are facing tight restrictions, if not freezes, to their own pay.

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[Lord McKenzie of Luton]

My Lords, we should be grateful to the noble Lord, Lord Kirkwood, and my noble friend Lady Lister for this amendment and the manner in which they have spoken to it. I start by reiterating that obviously our overall objective is to get rid of the 1% uprating cap throughout the Bill. Obviously, if we were successful, the protection that both speakers are seeking here would be unnecessary, but if we are not able to do that, we have to consider a range of mitigations to these cuts. The aspect identified by the noble Lord, Lord Kirkwood—the bearing of inflation risks much in excess of OBR forecasts—is certainly one that should concern us all. As it is, on the basis of the OBR forecast, by 2015-16 the 1% uprating will imply a real cut of some 4%. Depending on what happens to inflation, that real cut could be much higher. We have heard a range of figures from both speakers that could flow from that.

We need to recognise that these real cuts lower the base for whatever the uprating may be for the future. Studies point to the rate of inflation for what might be termed as essential items being higher than the overall rate, with essentials for this purpose including such items as food, heating, transport, fares and water charges. These are costs which are largely inescapable for low income households. The briefing we have had from USDAW records electricity prices rising by 3.9% and gas by 5.2% up to December 2012, with the poorest 10% of households spending 17% of their income on food, which rose by 3.8% in the period to December. As it stands, this Bill places the whole of the inflation risk on benefit and tax credit recipients, irrespective of the size of the risk. However, if inflation is less than 1% the Government can take the benefit of that and, if they so choose, uprate by less than 1%.

It was the noble Lord, Lord Kirkwood, and his noble friend Lord German who demanded of the Government at Second Reading that there should be no further cuts beyond those set out in the Bill. Of course they got a dusty answer from the Minister, but the problem is that we do not know the level of the real cuts which flow from this Bill because we do not know the rate of inflation. The point made by my noble friend Lady Lister is that inserting an upper rate of 3% should not be taken to imply that real cuts up to this level are acceptable, but that automatic cuts above that level are certainly not.

I hope that the noble Lord will not press his amendment at this stage—I think he said it was probing in nature—because we believe that the right course of action is to eliminate the 1% cap in its entirety. But if we are unable to do that on Report, the type of backstop being sought by this amendment is something which deserves our support—subject to only one exception, which is that the Minister can give assurances about how poor people are to be protected from inflation, a phenomenon over which they themselves have absolutely no control.

[Lord Newby]

My Lords, the effect of Amendment 6 would be that if inflation as measured by the September CPI was to rise to 3% or above in 2014-15 or 2015-16, Clause 1 would not apply. Amendment 10 would do the same for Clause 2.

As I set out earlier today, a key purpose of the Bill is to deliver clear and credible plans for our public finances. It is only through having these plans that we can maintain confidence and keep interest rates at near-record low levels. We have clearly stated our intentions on uprating policy for the next three years, but the plans for 2014-15 and 2015-16 are made possible only by this Bill. Adding conditions to the Bill would remove that certainty and weaken the credibility of our plan to reduce public spending and tackle the deficit.

The Autumn Statement operating decisions were taken on the basis of the Office for Budget Responsibility’s CPI forecast. As the noble Lord, Lord Kirkwood, explained, the OBR does not forecast inflation to reach 3%. The CPI forecasts for the purpose of uprating in 2014-15 and 2015-16 are 2.6% and 2.2%. The Bank of England’s Monetary Policy Committee is committed to maintaining price stability, which is defined by the Government as an inflation target of 2% as measured by the 12-month increase in the consumer prices index. Inflation is forecast by the MPC and the OBR to be above the 2% target in the near term but is forecast to fall back towards the target in the medium term. The inflation target is not set by the Governor of the Bank of England. The inflation target is set under the terms of the Bank of England Act 1997 on an annual basis by the Chancellor, and that will continue to be the case whoever the Governor of the Bank of England is.

As I said at Second Reading, and as the noble Baroness, Lady Lister, helpfully reminded me, these are forecasts and targets. External factors and unforeseen events can produce a different outcome—on the upside or the downside. Nobody can say with absolute certainty what inflation is going to be two years from now.

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[Lord Bates]

My Lords, I wish to comment on the amendment, in which I find a lot to support, particularly the idea of a review. Before I do so, I owe the noble Lord, Lord McKenzie, an apology because in my earlier intervention I made a point about higher-rate tax and said that it had decreased, when of course it had increased. I apologise for impugning his tax-raising credentials. It was a low blow that was not intended. I take this opportunity to correct the record and hope that he might accept my apology.

This is an interesting amendment to consider because we are dealing with a significant crisis. There is no doubt that housing benefit itself needs to be focused on: how it has increased from roughly £11 billion, circa 1997, to a predicted £25 billion in 2015. Clearly, no one could sit in the Treasury, not have a view on that trend and not say that it needs to be looked at carefully.

My second point is that private rents have been increasing at an alarming rate when compared with the rest of the housing market. One needs to consider the increases, which, according to the National Housing Federation, have been something like 35% over the past three years. Over that same period, we have seen an 86% increase in the number of those claiming housing benefit, from 485,000 to 905,000. This is happening at a time when, outside certain sections of the London property market, house prices are actually falling. This is happening when interest rates are at historically low levels, and mortgage rates are at levels whereby 1.99%, two-year fixed rates are being offered. There are very low mortgage rates while house prices are falling, yet at the same time private rents are increasing by not only the rate of inflation but in many cases by twice the rate of inflation. It does not take a great economist—and I note that there are some in the Chamber—to work out that there might be some correlation between housing benefit and a potential inflationary effect on the private sector. I therefore understand that that is one of the issues that my noble friends would look at with some care.

I also note that one of the solutions to the problem is to ensure that there is a greater housing supply through housebuilding. This is an area on which I would pitch to my honourable friend in his pre-Budget purdah and ask him to reflect on how additional funds could be made available. I do not say that the Government have done nothing in that regard. They have put up £10 billion in guaranteed loans to try to stimulate the market, and they have introduced shared ownership schemes through FirstBuy and NewBuy to try and increase house purchase. That is an important element. We do not want, as a society and for the health of our society, to divert people into a life in private rented housing. We want to encourage people to have an ownership stake in society and to own their own home. For them to do that, there need to be enough homes coming on to the market.

There is a competition because, as people are coming on to the market and wanting to own their own home, investors who are experiencing low rates of return in other asset classes are finding, according to Rightmove, that there is a yield of 5.8% on private rented properties—the figure is 6.5% in London—which represents extraordinarily good value in the present market. Capital is therefore flowing into the buy-to-let market, rather than the build-to-buy market. There needs to be some step back from this approach and one needs to ask what is actually happening and how it all connects with changes in benefits.

We are, I assume, taking an approach whereby we believe that capping the local housing allowance and housing benefit will lead to a slowing down of the increases in rents. The noble Baroness is shaking her head, but that is the assumption. We have certainly seen how rents have increased when housing benefit and local housing allowance have increased. Perhaps we should test this out, but that is difficult because we are talking about affecting lots of very vulnerable people. However, there is a case to be looked at. Some annual or periodic review of how this is working and impacting on the housing market would be welcome, and I encourage that part of the amendment. I am delighted to note that my noble friend Lord Freud had been supportive of the idea, and I very much hope that my colleagues on the Front Bench will also be supportive.

Finally, perhaps I may take this opportunity to raise one further question about the way in which benefits are to be paid to the tenant rather than to the landlord. I know that various demonstration projects are undergoing trial in Edinburgh, Oxford, Shropshire, Southwark and Wakefield involving direct payment, and that they have some time to run, but I should be grateful if my noble friend in her response can provide some assessment of how they are going. There are some concerns that paying benefits directly to tenants, particularly when that may represent the largest component of their income, might put them in an invidious position, and some people might get into greater debt as a result. I know that such schemes are being trialled and I should be grateful for some comment from my noble friend on the Front Bench in her winding-up speech.

[Lord McKenzie of Luton]

My Lords, this has been a good but short debate, as any debate around amendments of my noble friend Lady Hollis and the noble Lord, Lord Best, on housing would be. You cannot do better than that in your Lordships’ House. I am grateful to the noble Lord, Lord Bates, for his earlier comments. I thought that he had got it the wrong way round but was not quite sure whether I had misheard. I think that my problem is that I am not confident to challenge him; however, I am grateful for his clarification.

My noble friend and the noble Lord, Lord Best, are on the same page on this matter and we are happy to support the amendment, which calls for a review of housing welfare benefit, especially regarding the affordability of private sector housing. My noble friend and the noble Lord made a particularly powerful case in their analysis of the consequences of a growing divergence between levels of private sector rents and levels of support. We know and recognise why there is a growing divergence—the 30th percentile, the individual cap, CPI uprating, and now the proposed 1% cap. It will be made worse by direct payments when universal credit comes in. There are certainly causes of the pressure on rents, with growing numbers of households and insufficient new builds, but no evidence—indeed, quite the reverse—that the restrictions on housing support are driving rents in the opposite direction. It remains to be seen, as the noble Lord, Lord Bates, suggested, whether there will be any slowing down with the further ratcheting down of housing support.

Welfare Benefits Up-rating Bill

Lord McKenzie of Luton Excerpts

Monday 25th February 2013 Lords Chamber

[Baroness Hollis of Heigham]

My Lords, I also support the intention behind the amendment. I declare an interest as a vice-patron of Motability, while two members of my extended family—though not my immediate family—enjoy the use of Motability cars.

A number of us at first welcomed and were appreciative of the amount of consultation that the department engaged in concerning the new regulations for PIP, only to learn that, at the very last moment and without consultation, the Government had made two amendments, one of which was to withdraw the magic words “safely”, “reliably” and so on, while the other allegedly clarified what was meant by “virtually unable to walk” by confining it, as of right, to a territory of 20 metres, as opposed to the original territory of 20 to 50 metres that had informed previous decisions.

The Government, rightly and sensibly, moved on the first of these amendments and reinstated the test for the higher-rate DLA mobility component by introducing the key words “reliably”, “regularly”, “accessible” and so on, but failed to move on the second on the issue of 20 to 50 metres, assuring us that it made no difference in practice. When they were pressed on the statistics, however, the “no difference in practice” turned out to be a very real difference. Although the noble Lord, Lord Freud, suggested that of the 1 million, 600,000 would retain it and 400,000 would lose it, that was not the complete figure because 200,000 people who are currently on the lower-rate mobility allowance—needing psychological supervision and so on—would move up into the higher group, so there was a net loss of 400,000 but a gross loss of 600,000 people in higher-rate DLA who would now lose it, although to some extent that would be compensated for by the further 200,000 coming in from the lower group. Still, the gross figure is something like 600,000.

Like the noble Lord, Lord Alton, I am delighted to acknowledge that I am drawing on the Oxford Economics report that came out in December 2010, which is full of very valuable figures on this. We know from that report that about 28% of people on higher-rate DLA turn that mobility component into a Motability car. There are currently around 543,000 people driving a Motability car on the basis of three-year leases, and around 185,000 new cars are bought each year by Motability. It is the largest purchaser of new cars in the country, accounting for about 10% of them. This will have serious ramifications for jobs and the car industry, which Motability does so much to support.

However, I am not even going to argue about that. I am arguing on behalf of what Motability does for people’s independence. I remember being struck many years ago, back in the late 1990s when I first met the noble Baroness, Lady Campbell, by what she said about the Independent Living Foundation. She said, and for me this was a mind-changing moment, that the ILF, which gave people what we now call personal budgets—generous, or at least adequately generous, sums of money to enable them to employ their own carers and so on—put that disabled person at the centre of the care system, not as a recipient at the end of that system, so that people could determine what time they went to bed and so on. The same is true of a Motability car; it puts the person who is enabled to drive it at the centre of their mobility, not dependent on the charity, good will, altruism, convenience and so on of other people. Of those people who have a Motability car, something like 76% of them drive it themselves, so it becomes their means of movement. The result of that is that it frees not only them to be mobile but their informal carer as well, because without that transport they are totally dependent on someone else to take them to places where they need to go. As one person quoted in the Oxford Economics study said, if they are housebound—that is, without that car—it makes their informal carers housebound too. Removing the car locks two parties into immobility.

The report goes on to show us how effective the Motability car has been in enlarging the horizons of people’s lives. It shows that, for example, most of the recipients had cars in the past that they could no longer use by virtue of their arthritis or their heart problems. Whereas before their disability two-thirds of the recipients of cars were in work, subsequently only 16% were able to hold down paid employment. The Motability car helped 12,500 of them get a job and 56,000 to keep their job. It was crucial for those who needed specially adapted cars that they could not provide for themselves or for people in rural areas, such as my county of Norfolk where, frankly, public transport is non-existent and a complete myth. That car took some of them—16%—to work; it took younger ones into education and training, allowing them, in due course, to get work; it took them to their medical appointments, the shops, their children’s schools and to see their families. It allowed them, as one of them said, to access life. This is what the Government are apparently proposing to take away.

We all accept that people’s disability needs can diminish over time, or may increase over time, but for the most part, those who have reached the threshold of higher-rate DLA continue to have very real and substantial mobility problems wherever that line is to be drawn, whether at 20 metres or 50 metres. Therefore, like the noble Lord, Lord Alton, I urge the Government before Report to hold discussions with the noble Lords, Lord Sterling and Lord Alton, and the noble Baroness, Lady Grey-Thompson, and come up with a way forward on this. We have to have a transitional period—a period of grace—on this, either to the end of the lease or for a two-year period, whichever comes last, which would, at the very least, allow adequate time for the appeals procedure to go through without people losing a car in the mean time and then having to go through the routine that the noble Lord, Lord Alton, and the noble Baroness, Lady Grey-Thompson, described to regain it.

We had a similar discussion with the noble Lord, Lord Freud, about adapted houses. At one stage, if people were underoccupying a house that had had £20,000 spent on adapting it, they were to move from there, go somewhere smaller and have all the adaptation put in again, but good sense prevailed. The Minister agreed that where such money had been invested it was wise for those people to be allowed to stay. That argument makes sense for the home, and it makes sense for the agency of mobility which is the Motability car. That transitional period of grace, whether it is to the end of the lease or for a two-year period, whichever comes last, would prevent the awful situation of cars being taken back in and piled up in scrapyards because nobody would want that supply of used cars on the market when there will not be the purchasing power to buy them. We would not see Ford and the rest of them finding that they suddenly had closed order books, and we would not see people losing their cars, appealing, regaining them and having to go through all the trauma of these arrangements.

At the very least, there is a huge moral, legal, practical and economic obligation on the Government to provide a way forward to allow that transitional period—that period of grace—to allow those who feel that they should keep their car to appeal and, I hope, to retain it and to allow those whom it is deemed must lose their car time to adapt. Without it, I warn the Minister that she has seen nothing yet.

[Lord McKenzie of Luton]

My Lords, I shall start by setting out our position. We certainly support the thrust of this amendment and the intention behind it. We certainly support the concept that there needs to be consultation between the Secretary of State and Motability. The precise formulation of proposed new subsection (2) of the amendment needs careful consideration of the idea of benefits being on an individual basis rather than more generally, but I do not think that particularly concerns the noble Lord, Lord Alton. I think the idea is to press the Government to come forward with some transitional arrangements.

We have heard from the noble Lord, Lord Alton, a comprehensive and passionate argument in favour of the amendment. Indeed, he has been assiduous in following this issue and has been leading on it now for some months. It is probably fair to say that, in all the discussion, the to-ing and fro-ing and all the consultation that was undertaken on the move from DLA to PIP, this did not originally have the prominence that it should have had. The efforts now to ensure that it is properly focused on are very important.

Jobseeker’s Allowance Regulations 2013

Lord McKenzie of Luton Excerpts

Wednesday 13th February 2013 Lords Chamber

[Lord Kirkwood of Kirkhope]

It is still a pleasure to follow the noble Baroness because she made a point that I was going to make. I want to make two remarks on which I would like the Minister to reflect. The first is about the contributory system—the national insurance system. In the middle of last year, I remember listening with great attention to a lecture given by a valued friend, Malcolm Wicks, who sadly died recently. He was a great defender of the national contributory system. He gave a lecture on how he melded the concept of citizenship with the national insurance principle. He said that this involved a lifetime longitudinal commitment both ways between the state and the individual, with people paying in and people taking out, and that people understood that. He was an exponent of that all his life and I certainly miss his good counsel and wisdom. I share his view. We cannot allow these regulations to pass without remarking that this is another notch down in the diminishing of the national insurance principle. I regret that. I understand why the Government are doing it because otherwise the misalignment would be confusing. If you are introducing universal credit, I understand the rationale and it makes perfect sense. However, universal credit does not have the advantage that the national insurance contributory principle had of giving a longer-term relationship between the state and the individual. I want to put that on the record in passing.

Secondly, conditionality for people who are paying national insurance contributions suggests to me that people should perhaps pay less because they now have to submit themselves to sanctions. I have a strong view on sanctions and earlier today the noble Baroness, Lady Hollis, reflected some of that. I take the Paul Gregg view that sanctions are positive only if you can get the full commitment of the individual who might be potentially taking on a jobseeker’s commitment that will lead to sanctions, and if they feel that they are in charge of the process. That is not the case with the system of conditionality as it is currently cast, although with a bit of flexibility it might be amended in that direction to put people in a position where they feel they are more in control of what is going on. They are then much more likely to understand the rationale of a sanction being applied to them. That is work in progress. I hope it will be part of the careful evaluation that the Minister explained to us earlier this afternoon the Government will undertake.

My points really comprise two moans about national insurance that I am getting off my chest. I do not expect the Government to do anything about it. However, these regulations change things in a way that is significant for the future of the national insurance system. Indeed, perhaps in the long term, once universal credit gets into a steady state, the Government of the day—whoever they may be—may want to ask themselves whether it is sensible to continue to have a residual diminishing national insurance contributory principle set of benefits running alongside universal credit. I am agnostic about that but I certainly think that it needs to be recognised in this important debate.

[Lord McKenzie of Luton]

My Lords, I thank the Minister for introducing these regulations. I am fully supportive of the probing that my noble friend Lady Donaghy has done, particularly around the construction sector, on which she is very knowledgeable. I agree with the noble Lord, Lord Kirkwood, that, given the increasing demise of the contributory principle, it is important to consider how we re-establish that in this context, if we can. Of course, there has been an accelerated demise in various benefits. We shall talk about contributory ESA in a moment, but that is now payable for just one year and JSA is generally payable for just six months.

The Minister explained that these regulations refer just to contributory JSA and not to earnings-related JSA. I believe that he referred to my next point in introducing the regulations but, to be clear, I understand that as regards the entitlement under these arrangements, the national insurance contribution rules remain exactly the same as they are at the moment. In respect of national insurance credits, under current circumstances these can be obtained when the claimant satisfies the qualifying conditions for JSA, when he or she is not in work and earning. Will the Minister remind us what the credit and entitlement will be under universal credit when JSA is no longer with us? The Explanatory Memorandum recites that the rules for contributory entitlement are, except for the conditionality and sanctions regimes on which the Minister touched, “largely” unchanged. Will he particularise a little any other significant changes outside those two areas? As regards the alignment of the conditionality and sanctions regimes, we obviously see the merit of this and these regulations give us an opportunity to explore further how that actually works across the three benefits, including ESA.

Like others, I am grateful to Gingerbread, which briefed us on this matter, particularly as regards its focus on lone parent flexibilities, which was touched on extensively in our earlier debate. I will not go over that again except to say that I think the Minister said in response to the debate that 10 out of the 12 lone parent flexibilities are being carried forward, albeit in guidance rather than in regulations. I apologise if he covered this point earlier, but will he remind us which two are not being carried forward? We are aware that he has been pressed on flexibilities and that these should be set out clearly in the claimant commitment so that both the adviser and the single parent claimant can share the same understanding of what the regulations and guidance say about balancing work conditionality with caring responsibilities. It is understood that the noble Lord’s colleague in another place was sympathetic to this. Perhaps the Minister can say whether he agrees. It seems an ideal way of ensuring that all concerned are clear on the matter and it would help to focus the minds of advisers who may not always be up to date with the range of flexibilities available.

[Lord Freud]

My Lords, I again thank noble Lords for a somewhat briefer debate although the quality remained high. Clearly, I do not have to remind the House what these regulations do. They remove the income-related element and make provision for an award of JSA based solely on national insurance contributions.

I will touch on some of the questions that were raised. I start with the issues raised by the noble Baroness, Lady Donaghy. She brought some matters to the discussion which are entirely irrelevant to this set of regulations, thereby rather skilfully avoiding the shorter answers that I suspect would have been given in the previous debate, given the pressure of time. I therefore take my hat off to her. She made one or two very valuable suggestions, which I have stolen from her, as she knows. I shall go on doing that. There are some interesting issues on timing. For example, do we have the luxury of time with the self-employed? I am very conscious that we may get the odd one or two people coming in, who I suspect are probably not on the pathfinder, because one of the things that the noble Baroness, Lady Sherlock, teased me on as regards our exclusions was that they made this provision difficult for a self-employed couple to obtain. We therefore have a little time plus the six-months’ grace. Given that we are starting with people probably even in the next phase who are coming in and will find a self-employed job, we would give them the year. All I am saying is that I am absolutely conscious of the noble Baroness’s main point relating to the one-month period and the need for a carryover. I have been looking at that closely, and what she said gave me a good hint about how long that carryover should last, which in her view should be a year. Noble Lords will be pleased to know that that is the kind of period that I am currently exploring.

I am talking to Defra, which is working with the NFU, on how all this works for farmers generally, and so I am very conscious of that issue. As regards the point on the construction industry, which is one of the more interesting industries, what I heard from the noble Baroness was, “Don’t get a Catch-22 situation here about people because of the way we define things”. That is a good point and one of the benefits of guidance is that we can quite flexibly get that in. I commit here to making sure that in that guidance we do not have a Catch-22 situation for this industry which I know has some odd things. If you are working, it should not matter how the position is actually defined if people are making the effort. I will look at that matter seriously.

We have dealt with the irrelevant stuff and I will now move on to the points made by my noble friend Lord Kirkwood. It is interesting, when you look at the figures, that of the approximately 1.5 million on income-related JSA or UC, only 200,000 receive the contracted amount that we are talking about, based on their contributions. Of those, only 70,000 receive it on its own, without a UC or income-related top-up. We have therefore moved a long way into means-testing, as my noble friend observed.

My noble friend’s point about feeling in control was smack right. You do not get a response of the kind that you want if people do not feel part of it. If they do not understand and have not been part of the process that has generated it, the sanction will not work as well and create the right behavioural response. That is what the claimant commitment is doing. Interestingly, the early trials of the claimant commitment are finding that it is working much better than our existing contract.

The noble Baroness, Lady Lister, asked me for another guarantee. I will give the noble Baroness a guarantee that any changes to the ESA and JSA as part of UC would require regulations. There will therefore be a chance to debate that. As to the point about having a contributor on a different platform, the reality is that any Government looking ahead would want to have as few platforms as possible. One will probably end up with the same platform but approval of the process of who gets paid and how would have to go through this House.

In response to the question of the noble Lord, Lord McKenzie, the two areas that were not carried forward were those where the time allowance to attend an interview was moved from seven days to 48 hours. Claimants with children over the age of 13 are expected to show that they have reasonable prospects of getting a job, but they can still have tailored requirements in line with their caring responsibilities. Those are the two specific changes. Regarding the point about national insurance credits, everyone on universal credit will have national insurance credits that count towards the state pension. The difference is that there are class 3 credits for UC, whereas JSA claimants currently get class 1 credits.

[Lord McKenzie of Luton]

Will the Minister drop me a line on the point he made about class 1 and class 3 contributions? I should like to reflect on it because I am not sure that I understood the import of it.

[Lord Freud]

Yes, I would be pleased to provide a letter laying that out for the noble Lord to consider in depth.

We started last year to align the JSA regime and universal credit with the sanctions model. These changes pull them even closer together. We will thereby have a clearer system of requirements and sanctions that are robust and appropriate, underpinned by safeguards for claimants. I seek approval of the regulations and commend them to the House.

Employment and Support Allowance Regulations 2013

Lord McKenzie of Luton Excerpts

Wednesday 13th February 2013 Lords Chamber

[Lord McKenzie of Luton]

My Lords, I thank the noble Lord for introducing these regulations, which run parallel with those relating to JSA, which we have just considered. Before going further with my script, I would like to say that I do not think the Minister dealt with the point I raised earlier about flexibilities being included in the claimant commitment document. Perhaps he might pick up that issue when he responds to this debate.

As we have heard, these regulations relate to contributory ESA, which means that they are generally limited to 12 months, except for people in the support group. Can the Minister confirm that these regulations correctly reflect that position and that days in the support group do not count towards the 365-day maximum, or the days in the assessment period, followed by a period in the support group? Can he further confirm that they reflect the entitlement for someone in the support group to reconnect the contributory entitlement as provided for by Section 52 of the Welfare Reform Act 2012? It would also be helpful if the Minister could put into context the provisions in the regulations relating to youth, given the provisions of Section 53 of the 2012 Act, which preclude further claims under the youth condition.

As for JSA, the Explanatory Memorandum states that any allowance will be paid either alone or together with universal credit, a point probed by my noble friend Lady Donaghy in the earlier debate. How will this work, and who is to decide whether it is paid separately or with universal credit? Currently, universal credit is payable fortnightly in arrears, and the allowance is to be treated as unearned income for the purposes of universal credit. Presumably it is not impacted by the actual payment date. Can the Minister tell us whether ESA is to be sanctioned and whether it is the gross or net amount that is to be taken into account as unearned income? What about hardship payments and repayable hardship payments? How will they work?

The Explanatory Notes make it clear that, with the exception of the conditionality and sanctions regime, the rules will be very similar to the existing rules. I think the Minister repeated that. For the purposes of the record, can he be a little more precise about the lack of similarity?

As regards claimant obligations, the Explanatory Notes at paragraph 7.63 record that the UC model requires more of the claimant than ESA does. In particular, the paragraph suggests that claimants may be required to look for and be available for work that they are capable of doing, which is a more onerous test. Perhaps I can go back to that paragraph. I do not think it accords with what the Minister said in introducing these regulations. It states:

“The requirements placed on Employment and Support Allowance claimants are also based on the Universal Credit model, though there are again some significant differences. For example, claimants can be required to prepare for work and attend work-focused interviews, but are not required to look for work or be available for work whereas in Universal Credit, within limits, claimants may be required to look for or be available for work that they are capable of. The requirements to prepare for work and attend interviews are broadly equivalent to those requirements placed on claimants in the Universal Credit work preparation and work-focused interview only groups”.

I read that to suggest that if the universal credit rules are to apply, claimants may be required to look for, and be available for, work that they are capable of. If that is not the case, it is fine, but if that is correct, one has to ask how these more onerous requirements are to be derived, or are they to be derived from the same WCA process? Will revised guidance be given to Atos and decision-makers?

Similarly, in relation to sanctions, where there is an entitlement to both benefits—contributory ESA and universal credit—the latter will apply. Given that the universal credit requirement on the claimant may be higher than the ESA requirement, what will ensure that there will not be movement up the sanctions scale?

[Lord Freud]

The Employment and Support Allowance Regulations remove the means-tested provisions, because in future universal credit will replace the incremented employment and support allowance. With the exception of the conditionality and sanctions regime, the rules for the new employment and support allowance will be very similar to the existing rules for the contributory element of ESA under the 2008 regulations.

I will pick up some of the questions. The first was from the noble Baroness, Lady Turner, who asked about appeals. As she said, about 37% of appeals overturn the original decision. However, in the context of the total number of decisions made, the tribunal overturned around 15% of around 741,000 fit-for-work decisions. Therefore, the original decision on benefits stood in 85% of cases. Clearly, we will have a further chance to debate this issue later this evening.

All the remaining questions were asked by the noble Lord, Lord McKenzie. He asked about flexibilities for lone parents. Claimants will meet their personal adviser and discuss their circumstances, which will include the hours that the claimant is able to work, taking into account their caring responsibilities. Clearly, the claimant commitment is a living document that will change with people’s circumstances.

There will be separate payments of JSA, ESA and UC. The contributory benefits will not be paid with the same frequency as universal credit, although the monthly amount will be equivalised, and the monthly amount of the contributory benefit will be taken into account as offsetting unearned income. In other words, it will knock out the equivalent amount of UC.

I confirm that days in the support group—the WRAG—will not count towards the 365-day limit. The way in which sanctions will operate if a claimant receives both universal credit and a contributory element is that the relevant sanction will apply to their universal credit award and not to their JSA or ESA award unless they close their UC claim.

The hardship provisions have been removed from both the JSA and the support allowance because it will now be for contribution-based claimants, who will have other income and savings to live on. The noble Lord is correct that there will be no new claims for youth conditions.

I make it absolutely clear that the requirements are for work preparation such as attending a training course, preparing a CV or taking part in the Work Programme. They do not relate specifically to searching for work. Perhaps I may say that there is a bit of clumsy drafting in that paragraph, which states that UC has other elements that are not in the ESA. I know exactly the issue that the noble Lord seized on because I was puzzled by it myself when I read it. However, I can reassure him on that point.

As with the JSA, we are now moving the ESA and UC regimes closer together after the start last year. I commend the regulations to the House.

Social Security (Personal Independence Payment) Regulations 2013

Lord McKenzie of Luton Excerpts

Wednesday 13th February 2013 Lords Chamber

Moved by

[Lord McKenzie of Luton]

At end to insert “but that this House is concerned about the impact of the replacement of Disability Living Allowance with Personal Independence Payment; is concerned about the lack of a full impact assessment on carers; regrets the lack of a cumulative impact assessment of all the changes hitting disabled people; regrets the fact that vital safeguards have not been introduced to ensure that additional pressure is not put on carers, that people do not lose their freedom to work and that they are not driven to already stretched NHS or social care services; believes that while Disability Living Allowance needed reform it should have been started with the needs of disabled people and not with a budget cut; notes that some 600,000 fewer people will be in receipt of Personal Independence Payment by May 2018 compared to those who would have been entitled under Disability Living Allowance; and further notes that some 25,000 disabled people could be forced to give up their jobs because they can no longer afford the extra costs of getting to work”.

[Lord McKenzie of Luton]

My Lords, the regulations that the Minister has introduced come at the end of a protracted process whereby the Government, in their early tenure, signalled their intention to abolish disability living allowance and substitute it with the new personal independence payment. The proposal has not been without controversy ever since. The abolition of a benefit that aimed to support disabled people by making a contribution to the extra costs of disability has failed to gain full support among disabled people and their organisations. Nevertheless, we acknowledge the positive changes that have been made at various stages along the way.

The fundamental problem was the starting point of this process—not how best to design a new benefit that meets the needs of disabled people but a crude attempt to reduce the benefit bill. The change was then promoted in the context of suggesting that DLA was an easy touch for so-called cheats and scroungers, when the reality was that the fraud rate was only around 0.5%.

The first time we heard that there were going to be changes to DLA was in the 2010 Budget when the Red Book said that there would be a reduction in caseload and expenditure of 20%. That figure, I think we now realise, was plucked out of the air; no analysis, but a nice round figure that sounded definite. We now know that DWP’s latest projection indicates that the reduction in caseload and expenditure as a result of these changes will be 27% to 28% by the time the PIP assessments are completed in 2018. There will be more of this later, but we should acknowledge the hard work by officials during this process and the extensive consultations and engagement which have ensued. The Government have been pushed back on a range of important issues, whether through the Bill or the various rounds of consultation: the required period condition is now three months rather than a six-month qualifying period; the mobility component for care home residents has been retained; and they have introduced two-year linking rules, as well as substantive changes to the assessment activities. Furthermore, the agreement to switch into regulations the phrase,

“safely, to an acceptable standard, repeatedly, and in a reasonable period of time”,

is certainly a reassurance for some, as is the extended reassessment process. These are all to be welcomed. Whether the Government should be congratulated on their sensitivity in responding to these points or berated for the insensitivity of their starting position is perhaps a moot point. I shall put it down to the good sense and power of persuasion of officials.

At the last minute, after consideration in the other place, we have what part of our Motion calls for: an assessment of the impact on carers of the replacement of DLA. This is hardly the time to subject it to proper parliamentary scrutiny, but it seems clear from the DWP’s own analysis and the Minister’s introduction that the projected eligible PIP number for 60 to 64 year-olds in May 2018 at 1.6 million will be 600,000 below the number who would have been eligible for DLA. Of the reassessed DLA caseload, some 450,000 out of the 1.75 million will receive no award at all. In total, almost 1 million will receive a reduced award or none whatever. Is it the contention of the Government that these individuals who are to miss out on PIP have no significant additional costs associated with their disability? One of the quoted reasons for the change from DLA to PIP has been the Government’s wish to increase support for those with the greatest needs; we have heard it again this evening. How, therefore, does that oft-repeated assertion chime with the statement that the new PIP benefits rates will be exactly the same as those for DLA? The Government claim that a higher percentage of claimants will receive the highest rates of PIP than would be the case under DLA, but because the caseload under PIP is much lower, this amounts to approximately the same number of individuals. That is not helping the most severely disabled more; it is helping them at the same rate while taking away financial support from many other disabled people who also have additional costs to meet as a result of their disability.

This has not proved to be a good time for many disabled people. The shutting of the Remploy factories; the failure of the Work Programme to support disabled people; the impact of the looming bedroom tax; the failure fully to protect disabled people from the uprating caps; the loss of the severe disability premium in universal credit; and concerns over the protection from the benefit cap all mean that we need to be especially cautious about the change from DLA to PIP. We have not seen any comprehensive cumulative impact assessment of all of these measures on disabled people. Are we to expect one?

We know that for some, the receipt of DLA has proved a means to get to work. This raises the concern that anyone in these circumstances missing out on PIP may have to give up their job. What reassurances can be given that this will not happen? The Minister may pray in aid the Access to Work Programme, as did his colleague at the other end. Perhaps we can be given an update on the budget. Official statistics released in January this year show declining numbers of individuals being helped under this scheme. In 2009-10 it was 37,000, a year later it was 35,000, and in 2011-12 it was 30,000. What is happening with this programme?

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[Lord McKenzie of Luton]

My Lords, I thank all noble Lords who have contributed to this debate, and I thank the Minister for his responses. In relation to the question of the noble Lord, Lord Alton, I accept that the Minister cannot be very specific, but the answer must be that at least a significant number of people will miss out on their Motability arrangements as a result of these regulations.

Perhaps I may first address the process of holding this important debate at this hour, with little prospect of a vote. We probably bear some responsibility for not pressing hard enough through the usual channels to make sure that this debate was held on a separate day or was ordered in a different way. I should just say that further regulations will at least give us another chance for a debate around the issue. We would not want to defeat them because we would want them, but the House would be able to express its opinion, which I hope would be some comfort to all those people out there who are directly affected by the regulations.

We have heard some very powerful themes. On the importance of recognising the right of disabled people to live independently, we heard from the noble Baronesses, Lady Browning and Lady Grey-Thompson, the noble Lord, Lord Alton, and others. The noble Lords, Lord Touhig and Lord Alton, mentioned the risks around delivery. We understand that Atos will use subcontractors. I am not sure whether we should feel more comfortable; we will have to see. My noble friend raised an issue about a 30-day period and that was deemed to be enough. I am still struggling to see how long, on average, it is expected that a health professional will have to review every case. Some of the experience of the WCA and Atos is that the time spent is far too short and that is why we have problems.

We heard very directly from the noble and learned Lord, Lord Hardie, what it will mean to someone to lose their DLA and what it will mean in terms of their employment. I do not think we had an answer from the Minister to the question about the range of people likely to be affected by that. My noble friend Lady Lister asked about the number of carers. I think she posed a question about the assessment at 2018, when the reassessment process will be complete, and at 2015. The Minister is nodding that he did, in which case I apologise to him. We have had some specific questions about colons and colitis. We have also heard about the impact of all this on deaf people.

At the end of the day, there is no doubt that major concerns are articulated in relation to the 20-metre and 50-metre proposals. I remain confused. The noble Baroness, Lady Thomas, was comforted and thought that the 20-metre proposal was an extra; and that if you could not walk 20 metres you were assured of the enhanced rate and that did not preclude you from getting the enhanced rate if you could not walk 50 metres. I am struggling to see the difference. If the number of people affected by the 20-metre/50-metre proposals are going to be broadly the same under the existing arrangements, why is that? What is the purpose of the 20-metre rule? I am not just talking about the process by which that has come about, but why is it there and what difference does it make?

If the noble Lord is saying that the current 50-metre rule is creating an inconsistency because some people who are not able to manage 50 metres are getting the higher rate when perhaps they should not, we need to understand that a bit better. That seems to be the implication from what the noble Lord is saying. Unless there is clarity on that issue, a climate of fear will persist among many disabled people about the consequence of these regulations for them, their ability to work, and their ability to live independently.

Given the hour, I have no option but to withdraw the amendment. We need to return to this matter and have a fuller, more complete debate. The House needs a chance to express opinions on these regulations and what they mean for disabled people.

Amendment to the Motion withdrawn.

Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013

Lord McKenzie of Luton Excerpts

Wednesday 13th February 2013 Lords Chamber

[Lord McKenzie of Luton]

My Lords, I again thank the Minister for introducing the regulations. I wish him well in dealing with those incisive inquiries from my noble friend Lady Lister about the monthly assessment, the monthly payment and supported housing. She gave us a very powerful analysis.

We acknowledge that an updated framework for decisions and appeals that encompasses universal credit, PIP, JSA and ESA is needed. As the Minister will doubtless anticipate, there are two key matters that we will pursue, mirroring those discussed in the other place: mandatory reconsideration and the payment of benefits in the interim. Noble Lords will recall the debates that we had in Committee and on Report on the Welfare Reform Bill on what has ended up as Section 102 of the Act, and a degree of scepticism about why it was necessary to have two powers when a power was already available to decision-makers to revise a decision prior to the determination of appeal. However, we are where are, with two time limits within the system. If a claimant disagrees with a decision, they have one month to ask for a reconsideration. When the result of that is known, they will have one month from the date of the new decision to appeal.

As the Minister has identified, there is no statutory time within which decision-makers are obligated to complete a reconsideration. This is important because it reflects on how long a claimant’s interim benefit position will endure. We therefore register our concerns about the strictness of the time limits imposed on claimants in the current climate.

My noble friend Lord Bach gave a tour de force speech about the current situation, in which legal aid is being denied and advice agencies are being stretched and hit with redundancies and closures. We received last Friday the Universal Credit Local Support Services Framework, with not enough time to peruse it in any detail for today. Perhaps the Minister will tell us whether its envisaged remit will include advice on a decision or a reconsideration. Will the local support services be available to advise and assist on that? Of course, this pressure on advice surgeries is compounded by the raft of changes that we have discussed today and will doubtless continue to discuss, and which are about to enter the system shortly. Can the Minister say something about any discretion that might be available in respect of the time limits imposed by the provision?

It is understood that benefit entitlement pending a reconsideration will be on hold. I think that is what the Minister said: that if someone is seeking a benefit for the first time, they will be left without benefit if and until the claim is settled positively. For those claiming ESA and going through a reconsideration process, this would appear to herald the change. Is it not the case that an ESA claimant will currently be paid at the assessment rate equivalent to the JSA rate pending a reconsideration and appeal? Will the Minister confirm that this will not be the case in the future? The remedy in the short term, as has been suggested, appears to be a claim for JSA in due course where contributory ESA is involved, presumably a claim for universal credit. This appears to be what the Minister still advises. How does that deal with the point that this may require an individual to sign up to a claimant commitment and undertake work for which they are not suited?

Can the Minister please confirm the position for someone in receipt of ESA who, on a reassessment under the WCA, is assessed as being fit for work or subject to all work-related requirements? If someone who is currently on ESA and at risk of being downgraded to universal credit or JSA is subjected to the reconsideration appeal process, what benefit is paid before that appeal is concluded?

These questions touch on the timeliness of the reconsideration process. It is accepted that if a reconsideration and appeal process is successful, any due award will be backdated to the original claim, but that does not help the claimant in the interim. My honourable friend Anne McGuire MP made the point in another place that where high levels of appeals are successful, such as on ESA and DLA, a protracted reconsideration and appeals process will disadvantage claimants, driving them into debt and into the arms of the food banks.

We note that the Government have declined to place time limits on the reconsideration process—the Minister confirmed that tonight—but it seems from their response to the public consultation on mandatory consideration that they will consider making proposals for an interim performance indicator. Perhaps, therefore, I can take the opportunity to repeat some questions posed by my honourable friend Anne McGuire that remain unanswered. What do the Government envisage as the standard length of time for a revision prior to appeal? Will customers be told how long they should expect to wait? What action can be taken if projected timescales are exceeded, and will the department monitor and publish statistics on waiting times for appeal?

My honourable friend also took us back to earlier deliberations in Grand Committee, when the noble Lord, Lord De Mauley, was at the Dispatch Box. In response to an inquiry, he said:

“Alongside implementation of this power, we intend to make further improvements to the reconsideration process, which will include suitable arrangements for monitoring and, where appropriate, improving the speed of the process”.—[Official Report, 23 November 2011; col. GC 456.]

Perhaps we can be told what progress has been made on that.

Finally, I ask a question about the routine publication of appeals data—again going back to our debates on the Welfare Reform Act. At one stage, I think it was envisaged that there would be a cessation of the routine publication of those data. Perhaps the Minister can confirm that that is not the case.

We do not oppose the regulations, but we need to monitor them closely to see that their implementation does not create unfairness.

[Lord Freud]

Again, I thank noble Lords for some very good contributions. This is not the easiest or most digestible set of regulations. They very much replicate the existing decisions and appeals provisions but, just as the welfare reform agenda has provided an opportunity to reduce the complex range of income-related benefits, with the introduction of UC, it has also provided an opportunity to rationalise the rules governing the administration of these new benefits. This consolidated set of regulations does that by ensuring that the rules underpinning decisions and appeal rights are clearer and more accessible, benefiting both claimants and, indeed, the department.

On the detail of mandatory reconsideration, I reassure the noble Lord, Lord McKenzie, in particular, that we will closely monitor the impact on claimants, the quality of decision-making and appeal rates during the early stages of implementation. It is a key change that will improve claimants’ experience of the appeals process if we get it right. We will also monitor appeal volumes more broadly, particularly with the introduction of the new benefits, UC and PIP. We will review and amend the advice for decision-makers guidance as necessary, and if we find that the regulations are at fault there is an option to amend them.

On the point raised by the noble Lord, Lord McKenzie, regarding the time limit, the key issue is that we will be able to handle some cases with extreme speed while others may take more time, particularly where we need to ask for more evidence. I will commit to keeping noble Lords updated on that matter. On reconsiderations, we envisage that the first point of call will be to our staff, but some people may choose to go to an independent advice centre, although we had not been envisaging this as part of the role of the local support service.

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[Lord McKenzie of Luton]

I think I understood what the Minister said, but if during the process somebody has applied for or been in receipt of ESA and there is a challenge, it will have to go through a mandatory reconsideration process first and then out on to an appeal. Once you get to the appeal, you will get ESA at the assessment rate—I would guess until it is settled; is that right?—which is equivalent to JSA. Is that not a change from the current position, under which you in effect go straight to an appeal, however long or short that reconsideration period is?

[Lord Freud]

Under the current position, there is a voluntary process whereby people can go for reconsideration and the ESA is not payable until the decision is taken to go formally to an appeal. The difference is that we are moving from a voluntary process that some people do to a mandatory process that all people will have to do, and there is a gap. That is where concern has been expressed, and my response to that concern is that we need to keep it under control and look at how long that timing really is. I take that specific point, but on a more general point my understanding is that there was a bit of concern from the noble Lord that there was actually a change in payment from appeal. As I say, that is not happening.