Jobseekers (Back to Work Schemes) Bill

Lord Howarth of Newport Excerpts

Monday 25th March 2013 Lords Chamber

[Lord Howarth of Newport]

I wonder whether the Minister would reconsider the language habitually used by DWP. When he talks of a stockpile he is referring to human beings in very anxious circumstances who are waiting for their cases to be considered. Does not this language rather dehumanise them?

[Lord Freud]

The noble Lord makes the same point as JRR Tolkien, who did not think that “growth” was the right way to refer to hobbits at Bilbo Baggins’s birthday party. If the noble Lord can think of a better word than stockpile, I will happily use it. I cannot think of one off the top of my head. If the noble Lord finds that offensive—

--- Later in debate ---

[Baroness Hollis of Heigham]

I support the amendment of my noble friend. I have to declare a sort of interest as a former Minister responsible in the DWP for the tribunal services before Leggatt centralised them. As a result, I would visit tribunals and, five minutes into the hearing, I could tell whether the claimant had or had not received legal advice and support or welfare advice and support before entering the appeal. Those who had presented a coherent account with the appropriate accompanying papers and evidence, were prepared for the questions asked of them. It kept the process simple and straightforward, and the cases that I saw took on average about 40 minutes to complete. In each case, the decision, usually up to half the time in favour of the claimant, was the right one.

Then there was the other sort of case that came to tribunal, people who came with their sheaf of papers in a carrier bag, which they shuffled through without any advice, unaware of what it was that the tribunal needed to know and what would count as relevant evidence. I recall one man, Indian or Pakistani, who was there with his wife; his eyes never left the floor, and he sat hunched over as he tried to explain in poor English and a low, faltering voice, why he was appealing against a refusal of DLA—and he could not. The superb chair, who we now call a judge, spent nearly two hours trying compassionately to coax his story and evidence out of him in some sort of order. It took more than twice as long as the previous case, and his appeal was upheld.

What lessons may we draw from the situation in which there is no prior legal help or support for advice? Social security decision-makers, as we argued on the previous amendment, frequently fail to review decisions properly. Unless the claimant is savvy enough to put his case in ways that fit guidance on reconsideration, we end up with an unnecessary tribunal case, and the tribunals handling such cases clear, as a result, two or three cases a day instead of five or six. I plead with the Minister to learn from this. I do not know whether he has sat in on any social security tribunals, but he would quickly see which claimants had had prior advice and which had not. Remove the advice and the need does not go away; it is merely displaced to the very much more expensive and time-consuming stage of the tribunal itself. Instead of advice being given in advance, the whole untangling of that mess has to be done by the tribunal judge in person. That seems to me key. The need does not go away; all you are doing is transferring it to the most expensive and laborious way of addressing it.

Legal advice, which we are told we cannot afford, is not a luxury; in my view, it is essential because social security is complex and most claimants, by definition, are probably poorly educated, not especially articulate, confused about what they are due and need help at the early stages. They are aggrieved. However, as my noble friend Lord Bach said, early advice may discourage people from pursuing unfunded and unfounded cases. Legal advice also helps ensure greater consistency and a common approach across regions. We are getting a lot of research evidence suggesting the unevenness of responses from decision-makers and tribunals trying their best to produce the consistency that local offices are not.

The Minister knows that we are seriously worried about what will happen when existing claimants are brought on to UC, which I very much want to work. I fear that the tribunal system will be completely overwhelmed unless there is legal aid and welfare advice available at the preliminary stage to screen out weak cases and to put into good order appropriate cases for the tribunal; otherwise, I believe that the system will buckle.

We are therefore deeply worried about the situation of claimants under the Bill who will not know what their rights are and whether the proposed sanction is valid. In some cases, they may have been stalled for many months. They do not have fresh evidence to bring to bear and can no longer rely on their memory to give a coherent account of what happened when. Did they have good cause? At the preliminary stage, legal or welfare rights advisers can perhaps help them find out, track hospital or school records, organise paperwork and explain to the claimant what will happen, why he has lost his benefit and whether the case against him is soundly based. If that welfare rights officer or the legal advice is not there to do that, the tribunal judge will have to, as I have seen with my own eyes. Can that individual stop the sanction? Is it possible for him to comply? Jobcentre staff cannot or will not now give that advice, especially given the evidence about targets. Claimants need the supportive, friendly, neutral, professional, cheap advice from outside the system. However, of course all this hinges on whether the department wants people to get the right benefits and the right outcome. Does it?

[Lord Howarth of Newport]

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

[Baroness Sherlock]

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

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

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