Welfare Reform Bill

Lord McKenzie of Luton Excerpts

Wednesday 25th January 2012 Lords Chamber

[Lord Newton of Braintree]

My Lords, I just want one penn’orth. I completely support these amendments, but they give me the opportunity which I missed earlier in these proceedings to record on the Floor of the House that the single silliest thing in this whole affair is the determination of the Department for Communities and Local Government to have separate council tax benefit systems in every corner of the country. That is a battle to be fought again on another day. I had devised an amendment that could have brought it up today, but I decided that discretion was the better part of valour at this stage. However, there is a local government finance Bill coming down the path. My noble friend—and, above all, his noble friends in the DCLG—should know that some of us are going to go on worrying away at this total absurdity, which I know is not supported in the DWP itself. These amendments may help to mitigate the effects but they will not completely eliminate them, and I shall go on trying to eliminate them.

[Lord McKenzie of Luton]

My Lords, I concur completely with what the noble Lord, Lord Newton, has just said. We obviously will not oppose these amendments, but that should not be taken to mean that we are supportive of this proposition. When I say that I concur completely, I am not saying I am sure that this is the single silliest thing in this Bill—but it is certainly in the top 10. The briefing note that we had makes it clear that the support for council tax in future is likely to be based on a system of means-tested discounts. How on earth that can sit sensibly with universal credit and single tapers is a mystery to me. Maybe we will be enlightened when we get that legislation, which I think will come our way quite shortly. We could have a long debate around this today, as it is a real flaw in the universal credit, but I accept the need for this amendment, as it makes the data-sharing coherent.

[Lord Wigley]

My Lords, may I have one word of clarification about the interplay between these provisions on council tax and how they play with the devolved authorities? There are provisions lower down, on page 100, relating to the National Assembly for Wales, but this brings in a new dimension in that local government in Wales comes under the Assembly as well. Is there agreement with the Assembly Ministers on the provisions which the Minister is putting into the Bill by way of these amendments?

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[Baroness Hollis of Heigham]

Perhaps I may challenge the noble Lord, Lord German. What he is saying is entirely applicable to Wales, where every local authority is a unitary authority and therefore has responsibility for both housing and social services and can read across, for example, from the help that will come from the discretionary housing allowance to the Social Fund. Often the same families need support in a crisis if, for example, a house has been flooded, has caught fire, or if someone is coming out of care, and so on. They will need both housing and social services help, and a unitary authority is rightly placed to give that, provided that it spends the money as it should.

However, the noble Lord has not mentioned that most local authorities in England do not want this because they are lower-tier authorities, and the social services which handle the Social Fund are upper-tier authorities. In the county of Norfolk, which is some 60 miles long and 40 miles wide, yellow lines are put on roads that you do not even drive down, and schools that you have never even visited are closed, which happened when I was a county councillor, because it was too large to be called local government. None the less, that social services authority will be determining the Social Fund for seven district councils, including one wholly urban authority, two semi-urban authorities and three or four rural authorities. As a result, there will be a postcode lottery within Norfolk because a county council of one political complexion will be dealing with half a dozen different authorities below it, responsible for housing and trying to manage the discretionary housing allowance at the same time.

We will therefore have two sets of officials, one at district level and one at county council level, dealing with the same vulnerable family, each of them focusing discretionary money with no mutual interlocking, decision-making or accountability. It is a bloody silly system that is being proposed and I hope that my noble friend presses the amendment to a vote and that, as a result, we give the other place a chance to think again.

[Lord McKenzie of Luton]

My Lords, we support the amendment moved with the great passion and inescapable logic which we have come to associate with my noble friend Lady Lister. I say to the noble Lord, Lord Newton, that I prefer the noble Lord of Wednesday to the one of Monday. As my noble friend said, this is light-touch and effectively cost-free, so we should not have the usual argument about what this would do to the deficit reduction programme. Most noble Lords, with the possible exception of the noble Lord, Lord German, were pretty much on the same page, as the right reverend Prelate the Bishop of Manchester said. To the noble Lord, Lord Fowler, I say that this is not about trying to roll back the decision and retain the Social Fund as it is; it is simply trying to ensure that the money allocated through this process will be spent as it was meant to be. I should have thought that, in these times of austerity, the Government would feel it particularly incumbent on them to ensure that.

The amendment is intended to build on the useful reassurances we had from the noble Lord, Lord De Mauley, at earlier stages in response to concerns we raised about the localisation of the discretionary Social Fund. Those concerns primarily centred on the lack of a ring fence for the money that is to be transferred to local authorities to allow them to provide services that replace those that the Social Fund currently provides to some of the most vulnerable people when they are facing a particularly difficult situation.

Those concerns about the lack of a ring fence were raised by more than 40 per cent of respondents to the Government consultation on reform of the Social Fund. They have been raised by a wide range of charities, including Scope, Crisis, and Family Action, which state that they are seriously concerned that the abolition of the discretionary Social Fund and its replacement with a patchwork of local arrangements will remove one of the final safety nets for some of the most vulnerable and needy members of society.

Those concerns are so acute because of the degree of vulnerability of those to whom the Social Fund community care grant scheme provides support. Thirty-two per cent of those receiving a community care grant in 2009 were disabled, 26 per cent were lone parents and 10 per cent were pensioners. Many women fleeing domestic violence see community care grants as a vital lifeline when setting up a new home on exit from a refuge. The fear is that, without some way to ensure that local authorities use the money for the purposes for which it has been allocated, the needs of those groups will go unmet and the money will be diverted to other purposes—a lesson we learnt the hard way, as my noble friend Lady Lister pointed out, when we were responsible for removing the ring fence for the supporting people grant when we were in government. Crisis points out that councils are, on average, cutting supporting people services by 13 per cent, despite the overall supporting people budget being cut by only 2.7 per cent.

Local authorities themselves are worried about that possibility. DWP research published in December 2011 into local authorities’ plans to replace the Social Fund found that a number of authorities were concerned that without a ring fence and some level of reporting, funding would quickly become amalgamated into existing budgets and that, as a result, its identity, visibility and purpose would be lost. A second concern was that councillors or directorate heads would redirect the funding to plug gaps in other budgets. The most common example mentioned was the social care budget.

The amendment would not place a ring fence around the funding, which the Minister argued would be restrictive. He also argued that the settlement letter which accompanies the transfer of moneys to the local authority will be sufficient to ensure that those funds are used for the purpose for which they are intended—the meeting of often urgent need. If this is the case and local authorities intend as a matter of course to use the funds for this purpose, there should be no barrier to the Minister accepting the amendment, which merely puts in place a checking mechanism to ensure that what he is confident will happen takes place. We support the amendment.

[Lord De Mauley]

My Lords, during the passage of the Bill there has been much discussion of the reform of the discretionary Social Fund, and how we can ensure that the money intended for vulnerable people goes to them—an aim with which, as the noble Baroness, Lady Lister, generously acknowledged, I am completely in agreement. However, imposing restrictions on local authorities through data sharing, as the amendment seeks to do, would take us a little away from the central issue of how best to ensure that the funding achieves its intended purpose.

The noble Baroness’s Amendment 62BJA would mean that the Secretary of State would have to ensure that he was satisfied that a local authority planned to use the funding, which will replace community care grants and crisis loans for general living expenses, for the purposes set out in the settlement letter, before he could share information with a local authority about eligibility for assistance under the new local provision. The Secretary of State would also have to be satisfied that arrangements had been made to report on the use of the funding.

I appreciate the noble Baroness's intentions in moving the amendment. Despite its drafting, and despite what the noble Lord, Lord McKenzie, said, I read it as another approach to the issue of ring-fencing the funding that will go to local authorities. Although I do not think that it will achieve that, I will say, as I said before, that a ring-fence is not the best way to ensure that the money reaches vulnerable people. Ring-fencing would mean that local authorities could be constrained, for example, from investing in existing services, or pooling the money with funding from pre-existing services to provide a comprehensive and effective support system for the most vulnerable people in their communities.

The Government fully agree that it is very important to have adequate controls in place to ensure that the funds are used in the way intended. We have clear agreement on that point. However, I will explain why the amendment is unnecessary. Other controls are in place to provide checks and balances before, accompanying and following the initial allocation under the new provision. Perhaps I have not been adequately clear about these so far.

First, I turn to the current element of the steps that we are taking—what I might call the “before” steps. Departmental officials have already conducted a great number of meetings and workshops with local authorities to support them in preparing to deliver the new local provision. We will continue with this support by holding a series of workshops with all upper-tier local authorities over the coming months. The workshops will consider in detail how transferred funds could be used to maximum effect from April 2013. Through the sharing of ideas and best practice, they will assist the development of new services and will help local authorities identify how the funds can be used to best effect to support the most vulnerable. The participants and outcomes of the workshops will be published on the DWP website as part of our ongoing package of advice and information for all local authorities.

The settlement letter—what I might call the “accompanying” step, because it will accompany the funding that local authorities receive for delivering the new provision—will set out, as we discussed at some length last week, what the funding is to be used for and the underlying principles, and will describe the outcome that must be achieved. On 17 January this year, having further considered our debate of the week before, I laid out exactly what the settlement letter would contain. My noble friend Lord German made the point that local people and communities can hold their local authorities to account. The detailed settlement letter will help them do that. Furthermore, as I explained, in order to underline its purpose the funding will be distributed to local authorities through a specific revenue grant rather than being included with the rest of their general expenditure in the main revenue support grant.

I shall move on to the “following” steps. Following the introduction of localised assistance, the department has already made plans to conduct a review in 2014-15 to obtain appropriate information from a representative cross-section of at least 50 local authorities, which represents one-third of the total, in order to help inform future funding levels. We have committed to using this opportunity to gather further information about the way in which local authorities have used the funding. I contend that this review will be more valuable than the information required under this amendment. It will tell us about how the provision is working and what the funding is being used for, whereas this amendment would require a judgment to be made about the intention of a local authority before it delivers the new scheme. In addition—and this is critical—as local authorities will not know in advance which of them will be involved in the review, the risk of scrutiny and exposure from the review work will also help to drive their behaviours and, in theory, they may otherwise have been tempted not to comply in full.

Turning to the amendment itself, I suggest that it would be unreasonably burdensome to expect the Secretary of State to make a case-by-case check on every local authority that requires information about eligibility from the Department for Work and Pensions. As I said a moment ago, we estimate it would be approximately 150 local authorities. Indeed, the amendment presumes that local authorities will approach the department about eligibility for their local schemes, but this may not happen in every case. It will be for each local authority to decide which vulnerable people in its area would most benefit from the new local provision. This is the point. This is about trusting local authorities. They are best placed to make these decisions, as they will already be working with vulnerable people in their area through the other services that they provide. This local knowledge will help them to decide how to tailor support, and they may not feel that they need to approach the department for any information in order to do this.

Even if the obligation contemplated by the amendment were necessary, which, as I have explained, we contend it is not, primary legislation would not be the place for it. Regulations under Clause 129 will prescribe the purposes for which the department can share benefit information with local authorities, and the agreements reached with local authorities will make clear that the information is to be supplied only if it is for a prescribed purpose—in this case, determining eligibility for the new local provision.

We are already working with local authorities to make sure that they are ready to deliver this support. The settlement letter will make explicit that the funding is to provide a replacement provision for community care grants and general living expenses crisis loans. It will be clear that the funding is meant for vulnerable people and about the outcomes that should be achieved. The review will offer a check on what local authorities have done with the funding they received and will provide accountability.

The noble Baroness, Lady Lister, asked why a light-touch reporting system cannot be set up. Local authorities will be using money in a variety of ways, all directed towards meeting the needs of vulnerable people. Any system, no matter how straightforward, would, by its very nature, have to be complex to capture and assimilate all the money and the varied information.

The noble Lord, Lord McKenzie, and other noble Lords raised Supporting People as a demonstration, in their eyes, of how non-ring-fencing produces a risk. The Supporting People funding was deliberately incorporated into the main formula grant in order to provide local authorities with maximum flexibility. Our funding will not be included in the overall grant. It will be part of a special revenue grant. In addition, we are working and will continue to work with local authorities before the funding is allocated to devise plans for using and targeting the money and, as I have said before, we will review over one-third of them to ensure that the money has been spent appropriately.

My noble friend Lord German, who must have no idea how grateful I am to him for his very helpful words, asked the important question about Wales and Scotland. The funding will not be transferred under the Barnett formula; it will be allocated through a special grant. The funding will be based on the equivalent Social Fund spend for 2012-13, and it should be noted that Scottish policy is also not to impose a ring-fence.

The noble Baroness, Lady Hollis, asked about the tension between upper-tier and lower-tier authorities. The funding is allocated to upper-tier local authorities in order to provide the greatest possible flexibility to local areas. From our discussions with local authorities, we know that a range of delivery models are being considered, some of which will result in some funding being devolved to lower-tier services such as housing. Decisions about the ultimate funding for each area will be determined by a range of local factors, including the location and nature of existing services, and how these align with areas of deprivation and need and the level of funding that will be devolved. In some less deprived areas it may not be necessary or practical to operate a number of services.

Local authorities have been enthusiastic and engaged with this process and I am confident that, given what I have said, they will continue to act in a responsible and fair way to protect the most vulnerable in their communities. I hope I have addressed the issues noble Lords have raised, and I ask the noble Baroness to withdraw her amendment.

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[Lord De Mauley]

My Lords, Tell Us Once is a cross-government programme developed so that people should be required to inform the Government only once of a change of circumstances, such as birth or death. Government Amendment 62BK allows the Registrar-General, superintendent registrars and registrars of births and deaths to transmit information from a birth declaration, as well as information entered in a birth register which is already covered by Clause 133, to the Secretary of State and to verify such information for the Secretary of State.

Birth declarations in England and Wales account for approximately 10 per cent of registrations. The impact can be considerably higher in certain local authorities where the location of the hospital where most births take place falls within a neighbouring borough. In some areas the local authority will be unable to provide the service to up to 80 per cent of customers unless the customer makes two separate visits to the local authority—one to make a declaration of the birth and another when they have received the birth certificate to use the Tell Us Once service.

To ensure that all new parents are able to access the service and to avoid the need for them to inform several government organisations separately of a birth at what is often a busy time for families, I ask noble Lords to accept the amendment.

[Lord McKenzie of Luton]

My Lords, I understand the amendment is to overcome a lack of vires on behalf of the Registrar-General in respect of birth declarations, and we are happy to support it.

Amendment 62BK agreed.

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[Lord Mackay of Clashfern]

My Lords, it will be fairly obvious to most of your Lordships that these amendments are not entirely unrelated to the amendment that I am going to move in a little while. I am not certain of this, of course, but I have a feeling that the proposed amendments regarding the test for the discretion to be used have arisen out of discussions that I have had, which my noble friend Lord De Mauley has been at too, about the effect of the test in relation to charging. I will not elaborate on that now.

I would just be interested to know on what basis this test was originally put into the Bill. It must have been the subject of instruction; parliamentary counsel are extremely creative, but only on the basis of what they are asked to do. They are very good at finding words to express what you want. I wonder, and my noble friend may know the answer to this, what they were asked to do in the first instance. Does this reflect a change in the underlying request or not?

The third amendment concerns the review. That was certainly mentioned to me by the Secretary of State when I met him a week yesterday. I am entirely in favour of that. However, I suggested to him that it would be fair to do it on my basis and that that would be a real test of how good my suggestion was. However, it was suggested, “No, we will test it on my basis”—that is, on his basis. Therefore, from my point of view there is not much of an improvement as yet, but who knows what may happen? At present, the amendment is very welcome but, so far as I am concerned, it does not help me at all.

[Lord McKenzie of Luton]

My Lords, when the noble Lord, Lord De Mauley, introduced these fairly specific amendments, we had a bit of a broad sweep about the background to where the Government were going on child maintenance. I start by welcoming the £20 million of additional funding that has been announced. The noble Lord said that the Government were seeking to introduce tough enforcement and collection, with non-resident parents not being able to escape their obligations, and with HMRC gross data being used for the relevant calculations. We can sign up to that. In fact, we dealt with that in the 2004 child maintenance legislation, so that is in place; it is not new.

The noble Lord referred to the cost of the scheme—£450 million a year. One of the problems is that three schemes are operating side by side through a transition. I think it was originally planned that by 2012—this year—we should be down to one scheme based on gross data, which should significantly reduce costs. However, I think that has been somewhat delayed by the Government.

As regards tough enforcement and collection, following a question that I raised in Committee, the noble Lord wrote to me indicating that not all the powers included in the 2008 Act had been brought into force. If I am wrong on that, he may take the opportunity to correct me.

Amendments 62BL and 62BM appear, at first reading, to make it harder for parents with care to access the statutory maintenance service. The Bill as it stands provides for applicants to take reasonable steps to establish whether it is possible or appropriate to make maintenance agreements outside the statutory system. A key part of the Government’s reform of child maintenance was supposed to be the introduction of the gateway referred to by the noble Lord, the purpose of which is to ensure that all clients consider the range of their child maintenance options so that they can be directed into the family support services where appropriate. The Government’s White Paper states at paragraph 10 on page 18:

“In some cases the gateway will be a step towards an application to the statutory scheme. Where the parent wishes to pursue that and states clearly the reasons why, the conversation about other options available will be closed and they will be assisted in moving to make a full application”.

There were concerns that this process would be a way of screening out parents, particularly parents with care, from the statutory scheme. These were heightened by the potential loss of the statutory requirement to maximise the number of children benefiting from effective maintenance arrangements, which is an obligation of CMEC but is not to carry over to the successor—the executive agency—when that comes into being. Just a few hours ago we received a letter that purports to provide further clarity to the Bill. The noble and learned Lord, Lord Mackay, touched pertinently on that point. I am bound to say that it is regrettable that once again this information is released so close to our Report sitting. A crucial paragraph in that states:

“Therefore, we are now in a position to provide further clarity to the Bill by making it clear that the only engagement required prior to accepting an application to the statutory scheme will be to invite the applicants to have a telephone call with an adviser to discuss their options”.

Like my noble friend Lady Sherlock, I would like better to understand what that means.

If this is the interpretation that the Government put on the two amendments, it will be important to have this on the record. However, I am bound to say that such an interpretation does not flow readily from the wording, which requires the applicant to,

“consider with the Commission whether it is possible to make such an agreement”.

The term “consider” at least implies a more deliberative process than just a phone call. The process being “with the Commission” suggests the two parties having to agree on some sort of basis. However, if this is not what is intended, it would be very important to have that on the record. Given the lateness of this item in our deliberations, we may have to return to this matter at Third Reading.

The cynic might say that this changed position is an attempt to undermine the amendment in the name of the noble and learned Lord, Lord Mackay of Clashfern, by removing, in relation to Section 9 of the Child Support Act 1991, a requirement for an applicant to take “reasonable steps” to establish whether it is possible to have voluntary arrangements. We would not accept that, and the noble and learned Lord’s amendment continues to have our full support and stands separately from these amendments.

However, perhaps the Minister will tell us what the future of the gateway service is to be. To be fair, it was always envisaged that it would start by a telephone offering, but is that now to be its steady state? If not, and if it is to be developed into a more extensive engagement, how would that sit with the new government amendments?

To be clear, we have acknowledged the benefit of voluntary arrangements and the prospects of them being more sustainable. We support the development of family support services. We legislated to remove the requirement for benefit claimants compulsorily to use the statutory system and provide what has become the option service. Our strong concern in doing so was not that thousands would rush to use the free statutory service, but that parents with care would drift out of the system and fail to make arrangements at all.

As to Amendment 62CA, we would support a review of fees regulations. That does not mean we accept the structure of the fees proposed. We would prefer it to be done on the basis of the noble and learned Lord’s amendment.

[Lord De Mauley]

My Lords, I am grateful to all noble Lords who have spoken. Let me turn directly to the issues raised by noble Lords. The noble Baroness, Lady Sherlock, asked, under the amendment, exactly what will happen during the gateway conversation. This also addresses the point made by the noble Lord, Lord McKenzie. We want parents to pause for thought when contacting us, before deciding whether to proceed with making an application to the statutory service.

We believe that the best way to achieve this is for parents to undertake a telephone call with a specially trained adviser. The only requirement on the parents contacting us before entering the statutory scheme will be to engage in this conversation and to discuss whether they have considered their alternatives. The adviser will be able to provide advice and signpost the parent to other support available, if required. Parents can then, if they wish, take time to consider the alternatives and discuss collaboration with the other parent. However, I stress that engaging in the conversation when first contacting us is the only requirement to enter the scheme. Everything else is voluntary. There is no question of us seeking to direct parents to take any specific steps. Where a parent identifies during the conversation that they need to make an application to the statutory service, the adviser will help them to do so. I hope that that addresses the point of the noble Lord, Lord McKenzie.

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[Lord Kirkwood of Kirkhope]

My Lords, I will just take two minutes to deal with that, if I may.

First, I have encountered the break-up of marriage at a variety of levels. I was involved in consistorial legal work before I was elected in 1983, and I spent most of my time in the House of Commons as a spokesman for my parliamentary group and then as a chairman of a Select Committee which endlessly looked at the 1991 Act and all the bits and pieces that flowed from it. It has been quite clear to me as a result of all that experience that if anybody tries to take some lessons and principles from the cases that are conducted in the High Court of the land, dealing with many thousands of pounds at a very high level, where things are fought over and the big silk hanky brigade of the legal establishment makes lots of money, they are a million miles away from ordinary people whose families break up week in, week out. I do not think it is safe to start contemplating the amendment tabled by the noble and learned Lord, Lord Mackay, and its consequences, when seen from that perspective. That is not what this is about.

I mentioned Select Committees. I just want to draw noble Lords’ attention to the fact that the current Select Committee in the other place recently produced a report on this which recommended that where parents with care had taken all reasonable steps to investigate a private arrangement but that was not possible or appropriate, no charges should be made. In my view, there has never been an established case made for charging either parents with care or non-resident parents.

The Henshaw report was an extremely scrappy piece of work. The noble and learned Lord, Lord Mackay, rightly pointed to the fact that even the Henshaw committee, upon which most of the Government’s case is made, clearly said that it did not want any disincentive effect to be imposed as a result of charging. It made a different case altogether. Incidentally, the Henshaw committee report was as clever as to say that we should close down the CSA and have a residual body to chase debts. That is about how sensible some of the recommendations in the Henshaw committee report were. As far as I am concerned, it is true that it was discredited before the ink was dry and it went for ministerial consideration.

This issue is about whether charging will assist collaboration and co-operation between separating parties. I can see no understandable circumstances that charges would make it easier for people to stay together longer. I do not see how that case can be made or that it has been made.

The system we are setting up for 2014 will be much cheaper for a variety of reasons. From an administrative point of view, there is no need to put money into the system because the assessment process, the computer systems and so on will make the whole administration of this, if it all works, a lot easier. It is entirely affordable. The way in which some Ministers have been rubbishing the system is disgraceful. It is not a perfect system but it supports 870,000 children—I repeat, 870,000 children. This is not an insignificant institution which could be done without. Nudging 50 per cent of single parents with care get something like only £20 a week. That is the extent of the money that they derive from the system, but it is essential for those who use it.

Quite simply, collaboration between the parents who are separating will not be assisted by charging. It would inevitably result in less money flowing to the children in the charge of the parent with care. There is no case whatever for charging, so I am compromising greatly in supporting the entirely reasonable amendment moved by my noble and learned friend Lord Mackay. Speaking for myself, I would scrap the whole idea and not give it house room. I hope that the House will come quickly to a resolution and I encourage noble Lords to support the amendment in the name of the noble and learned Lord.

[Lord McKenzie of Luton]

My Lords, this has been a powerful, passionate and extremely well informed debate. If the debate has not been quite unanimous in support of the noble and learned Lord’s amendment, one thing on which there has been unanimity is the esteem in which he is held. On charging and the Henshaw report—which the noble and learned Lord mentioned, as did the noble Lord, Lord Kirkwood—as the report made clear, any charging regime should not dissuade vulnerable and low-income parents with care from seeking maintenance in the first place. That was translated into a White Paper of the Labour Government, which said that charging should be based on three clear principles: it should incentivise non-resident parents to meet their responsibilities; the clear burden of charging should fall on the non-resident parent and not the parent with care; and cost recovery via CMEC should never be prioritised over payments to parents with care.

A host of points have been made. I agree with what the noble Lord, Lord Cormack, said—supporting this amendment will not torpedo the Bill. If it would, I would doubly support it. But even on the basis that it will not, it should be supported. We have heard testament from a number of noble Lords, particularly the noble and learned Baroness, Lady Butler-Sloss, about the complexity and possible difficulty of people’s lives. We have to recognise that people just do not live tranquil, routine lives where you can easily come to agreement. As someone who briefly had ministerial responsibility for the CSA, I saw some horrendous cases about non-resident parents, mostly men, who would do anything to avoid meeting their obligations.

The history of the CSA/CMEC has evolved, and this is perhaps not the occasion to rehearse it. The fundamental point that the noble and learned Lord made was that this is about fairness; it is not about seeking to attribute blame to the challenges that couples find themselves in when they separate. I thoroughly agree with that. I am aware that the noble and learned Lord does not press this matter lightly. As we have heard, he has endeavoured to persuade his colleagues at the highest level in government on the proposition that he is advancing today. We should be guided by what is best for children and whether supporting this amendment would make it more likely that they will benefit from maintenance arrangements. We consider that it will, which is why we support it.

I suggest to the noble Lord, Lord De Mauley, that it would be really good if he could accept the amendment, particularly because so many noble Lords from his own Benches have spoken in favour of it. The clear and overwhelming view of the House is that the amendment should be accepted, which would be the right thing to do, without having to reinforce that with what would clearly be an overwhelming vote.

[Lord De Mauley]

My Lords, I have enormous respect for my noble and learned friend Lord Mackay, which I know all noble Lords, including the noble Lord, Lord McKenzie, share. I am grateful to him for his amendment and to all noble Lords for their contributions. I have listened carefully—and not, I have to say, without trepidation—to the detailed points made by my noble and learned friend and all other noble Lords who have spoken. I am glad that we have also had a debate within the debate about charging.

I emphasise again that the Government’s reforms and particularly charges need to be seen in the wider context. Perhaps I may start by setting out some of the historical contrast. When the Child Support Act was taken through Parliament in 1991 one of its primary aims was to recoup the money that the Government spent on benefits. This was achieved by reducing lone parents’ benefits by the sum that we were able to collect from non-resident parents. Parents on benefits had to use the scheme in order to further this aim. That was a scheme of its time and was set up with the most noble of intentions, namely reforming a court-based system that was not working.

Today we start in a different place. Lone parents no longer have their benefits reduced at all when child maintenance is received and this Government have been proud to announce that we will extend this to universal credit. We have greater ambitions. We see a key part of the reforms as expanding the support for parents to collaborate. We no longer require parents to use the CSA. We do not want it to be the default option. Where they can collaborate, we believe that that is fundamentally better for parents and children. That is why we cannot accept my noble and learned friend’s amendment.

The proposal would set up a system where the state would be obliged to try to arbitrate. We specifically think that that is what will happen if we use the reasonable-steps test, which surely requires some sort of judgment as to whether an applicant has done all that could be expected to reach a family-based arrangement with the ex-partner.

We cannot see any way to collect hard evidence to show that a parent with care had taken reasonable steps without an inappropriate degree of intrusiveness. We do not believe that the state should try to monitor whether a conversation has taken place about collaboration between two private individuals, the parents. We cannot see how to make this work, not least because parents could quite fairly challenge the state’s discretionary decisions, leading to delays in maintenance flowing and acrimony in the system.

Welfare Reform Bill

Lord McKenzie of Luton Excerpts

Wednesday 25th January 2012 Lords Chamber

[Lord McKenzie of Luton]

My Lords, I thank the noble Lord, Lord De Mauley, for that extensive introduction to the amendment. The effect of it would seem to be to remove CMEC’s duty to report on decision-making standards. The Government judge that this statutory duty provides no particular benefit: first, because the majority of the data is already in the public domain; and, secondly, because the reports have not generated any debate or wider public interest. When the noble Lord introduced the amendment, something he said about difficulties with NAO data rang a bell. There are historical issues around that, which I understand and acknowledge.

I have two questions. If the majority of the data is already in the public domain in other forms, what is included in the minority of the data that is not, and therefore that might be missed? Secondly, the noble Lord went through an extensive list of benefits that might be affected. I would like to be clear about this. The amendment removes Section 81 of the Social Security Act 1998. That covers a range of appeals covered by Chapter 1 in Part 1 of the Act, which will include appeals other than those relating to CMEC. Of particular interest are the data on appeals outcomes in relation to ESA, which have been a particular bone of contention. The statistic that 40 per cent of appeals are successful—I think that that is roughly the latest position—has driven a focus on the process. I would like to be clear about this. Perhaps the Minister will expand a bit on the range of benefit appeals that the amendment seeks to cover.

[Lord De Mauley]

I wonder whether the noble Lord would mind awfully if I wrote to him.

[Lord McKenzie of Luton]

My Lords, that would be fine, as long as the noble Lord will concede that if we feel, following that and having read the record, that anything is unresolved, we will bring it back at Third Reading—within the rules, I hasten to add, as the Chief Whip is sitting alongside him.

[Lord De Mauley]

My Lords, I am now informed that there will be nothing in future reports that will not be available elsewhere. At least that answers the noble Lord's first question. Perhaps an answer to the second is coming.

[Lord McKenzie of Luton]

My Lords, I am happy to have the answer in writing, as long as we can have it a decent time before Third Reading. That would be very helpful.

[Lord De Mauley]

My Lords, there has been much talk of the cavalry this evening, and mine has now arrived—at least it would have if I could read it. Decision-making in both the department and CMEC will be repealed. This will cover all benefits. Does that help the noble Lord?

[Lord McKenzie of Luton]

I think that it may, if I understand the scope of it. Does it mean, for example, that the data that we get relating to appeals and ESA—I cannot off the top of my head remember how those data get into the system—will be included? That is a very important statistic and is likely to remain so. If it will be taken out by the amendment, how else will it be covered, and how will it flow through into the public domain?

[Lord De Mauley]

My Lords, it is publicly available.

[Lord McKenzie of Luton]

My Lords, I am happy to leave it there for the moment. However, I will read the record. I would like to understand how the data become publicly available and whether the amendment will preclude them being made available by this route.

Amendment 62D agreed.

--- Later in debate ---

[Lord Wigley]

My Lords, I rise to speak to the amendments that deal with the devolved Administrations. I wondered until almost the last sentence that the Minister spoke exactly what the game was going to be. From what I understand, it will be mainly in terms of the avoidance of duplication. I do not know whether I have got that right—and perhaps the Minister can indicate whether it is mainly the avoidance of duplication, as opposed to giving anything additional with regard to the powers.

The 2020 target has had considerable enthusiastic support in Wales, but the progress has not always been as positive as one would have hoped. Of course, definitions of child poverty can sometimes be a problem, as I am sure that the Minister will immediately acknowledge. It is not just with regard to absolute levels of poverty; it is to do with relative levels as well. Perhaps the Minister will respond to this. One challenge is to get joined-up thinking between the devolved Administrations which have responsibility for social services, education, community services and local government. Many of the other responsibilities are in Westminster, particularly the economy and taxation and the transfer of resources. That is clearly important in cracking this problem. I welcome any steps being taken here that bring greater coherence and better working together between the various parts of these islands for that purpose. But I hope that something additional will come into the equation that enables greater progress to be made to eradicate child poverty, not just in Wales but throughout the UK.

[Lord McKenzie of Luton]

My Lords, we are supportive of Amendments 62G, 62H and 62K. As we have heard, Amendments 62G and 62H clarify the position with regard to the devolved Administrations and Amendments 62J and 62L do so with regard to Northern Ireland. The briefing note explains that Amendments 62G and 62J ensure that there is no overlap between the role of the commission and the devolved Administrations by ensuring that the commission describes rather than assesses progress on each of the devolved Administration’s strategies. Could the Minister confirm, however, that the commission will still take a UK-wide view and ensure that it assesses progress across the whole country, including assessing where central government may need to take specific actions on those policies within its remit in a particular nation?

I listened carefully to what the Minister said about Amendment 62EA, clarifying the requirement in the Child Poverty Act for UK child poverty strategies to describe the process that the Secretary of State considers needs to be made by the end of the period. The department says that the amendment will confirm the Government’s existing understanding that a description of the progress in narrative or policy terms meets the requirements of the Act. Perhaps the Minister can say a little bit more about this amendment. As I understand it, the intention of the Child Poverty Act was to ensure that the Government set out a strategy to ensure that this progress was made rather than simply describe, perhaps in numerical terms, what that progress would look like. We would be concerned if the effect of the amendment was to weaken the duty on the Government to set out such a strategy.

[Lord Freud]

My Lords, the amendment is intended to clarify the Child Poverty Act, not to change the substance or affect the law. It will make it absolutely clear that describing progress in terms of policy is entirely in line with the requirements of the Act. It does not alter current government policy on child poverty. The Government will continue to be required to produce a child poverty strategy every three years, setting out the measures that will be taken and the progress that needs to be achieved in that period. The purpose of the latter two amendments is simply to clarify how progress can be described.

To pick up on the point made by the noble Lord, Lord Wigley, the amendment will ensure that scrutiny of devolved matters relating to child poverty remains with the devolved Administrations, thus respecting devolution conventions. We will continue to work closely with the devolved Administrations to ensure that both the commission and the devolved strategies contribute to continued progress against the goal of ending child poverty.

Welfare Reform Bill

Lord McKenzie of Luton Excerpts

Monday 23rd January 2012 Lords Chamber

[Lord Wigley]

My Lords, I rise briefly to speak in support of the amendment. I do so against the background of the industrial injuries and diseases that we are very familiar with in Wales, from coal-mining, slate mining and many other industries. I know that all industrial parts of these islands have similar experience.

If the Government’s line on this whole issue is that it is unreasonable that people who are working earn less money than some people get in benefits and that the changes are justified for that reason, surely this exemption makes all good sense. People have an industrial disease or injury by virtue of the fact that they have been hardworking members of the community and get this as a result of their efforts of working. What is more, in all probability they will not be in a position to return to the workforce, so that argument disappears as well. I realise that special pleading for any one group will cause difficulties—and it may for the rest of today’s debates—but this instance stands out as clear-cut and deserves sympathy.

[Lord McKenzie of Luton]

My Lords, this amendment, moved so ably by my noble friend Lady Donaghy, goes to the heart of fairness. It does not challenge the concept of a cap or indeed the level of the cap. As my noble friend clearly said, it does not undermine the stated aims of the Government for its introduction—whether we agree with them or not. We have heard that the industrial injuries scheme is a system of no-fault compensation. As the noble Lord, Lord Wigley, said, to qualify for the benefit, the claimant must have had a personal injury in an industrial accident or he must have a prescribed industrial disease. That must have arisen when the claimant was an employed earner. The amount of the benefit depends on the extent of disablement. An award is made for a period during which the claimant has suffered or may be expected to continue to suffer from the relevant loss of faculty.

On the rationale for the cap the Government alternate between reducing benefit expenditure and changing attitudes. The cost of the industrial benefits scheme, applicable to working-age claimants, as my noble friend said in moving the amendment, is below 0.5 per cent of DWP AME. As for encouraging the benefits of work, claimants would have had to have been in work in the first place to get the benefit. In a sense, they would have had to have been exposed to both the benefits and the risks of work. This raises broader questions about health and safety, but perhaps that is a topic for another day’s debate. The benefit would be payable to those able to return to or stay in work as well as to those whose loss of faculty prevents it. In essence, the Government are saying that the greater the suffering an individual endures from an accident doing what the Government want—being in work—the tighter the cap should bite. That does not have a ring of fairness.

In Committee, the Minister left the door slightly ajar and indicated the possibility of further consideration. It would be good to hear that the door remains open and that he will be able to make appropriate commitments today or at Third Reading.

[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)]

My Lords, before I speak to the specific amendment, I would like to make some general points about the rationale for the household benefit cap. First, there is a principled point that households should not be able to receive more on benefits than the average working family in Great Britain earns in work. Secondly, people on benefits should face the same choices as working families, including about where they can afford to live. Thirdly, someone in work should always be better off than someone on benefits. The proposed cap of £500 a week is equivalent to an annual salary of £35,000 a year before tax. We have set the cap at the median earned income for working families after tax and national insurance. We think this is a reasonable representation of average household earnings.

I ask noble Lords to consider how well these principles are received by the public at large. They will have seen press reports of a YouGov survey that found that 76 per cent of the public are in favour of the benefits cap. The overwhelming majority of people think there should be a limit to the amount of benefit those out of work can receive. We have received many representations that we are pitching the level of the cap far too high. In fact, only 7 per cent of respondents in today’s YouGov survey think that the cap should be higher than £26,000. Another 9 per cent think there should be no cap, so of the people who answered the survey, 69 per cent thought that the cap as we have set it or below that amount is the right figure. Of those who expressed an opinion, the figure is above 80 per cent, or above four-fifths. The truth is that people do not understand why we pay claimants more money when they are out of work than they could reasonably expect to earn from working full time.

I accept that arguments can be made for special treatment for a whole range of groups and benefit payments. Indeed, many such arguments were eloquently expressed previously in Grand Committee, and this amendment moved by the noble Baroness, Lady Donaghy, is an example. However, we must be wary of such arguments clouding the bigger picture of the need to reform a complex benefits system, which is failing those people on benefit who want to work but, equally importantly, is placing a costly burden on the taxpayers in work who pay for it.

We have today published an updated impact assessment with more detailed and robust estimates for the numbers and characteristics of people who may be affected by the cap. The high-level figures are broadly in line with the figures in the previous assessment, but there are some important differences. In particular, we now estimate that in nearly 40 per cent of households the claimant will be subject to JSA conditionality. We also estimate that the proportion of social rented sector households is 44 per cent, which is substantially less than we thought previously. The new figures are derived from the administrative records held by the department on benefit recipients. Thus, they are much more robust than the previous survey-based estimates. They provide a much firmer basis than before for considering transitional measures. Crucially, the methodology here means that we know who is likely to be affected by the cap and can start working with them and local authorities to minimise the problems for individual households when the cap is introduced.

Amendment 58C would require us to disregard payments of industrial injuries disablement benefits when operating the benefit cap. The noble Baroness, Lady Donaghy, has argued that these payments are worthy of special consideration because they take the form of compensation payments in lieu of injury or disability caused at work. I recognise the nature in which these payments are made, but I am afraid that I do not believe that it should override the need for a limit to the amount of welfare payments households should receive. Disregarding payments of IIDB would serve only to undermine that fundamental principle and create a precedent for others to argue for such special treatment.

We have previously been asked to reconsider the position of IIDB recipients in light of the fact that we have announced that we will fully exempt from the cap recipients of disability living allowance, personal independence payment, attendance allowance and constant attendance allowance. I have to say that I do not find these groups analogous. DLA, PIP and equivalent benefits are paid to people to help with the extra costs arising from their disability. Their receipt provides an appropriate means of identifying those disabled people who should be exempted from the cap. Many people receiving industrial injuries benefits will be exempt because they get constant attendance allowance as part of their industrial injuries entitlement or DLA.

I take the point about vaccine damage payments raised by the noble Baroness, Lady Donaghy. These lump-sum payments will be taken into account as capital and not income in assessing means-tested benefits. In other words, vaccine damage payments are not comparable to weekly income payments through IIDB. But, as has been said in debate today, the basic IIDB payments are compensation payments and do not reflect whether the disability or illness necessarily brings extra financial costs. I cannot agree that there is any reason to provide an automatic exemption in these circumstances.

On the disincentive to work, any IIDB recipient in work who is entitled to working tax credit will be exempt from the cap, as will any households in receipt of working tax credit. The cap of course will not apply to pensioners. I therefore ask the noble Baroness to withdraw her amendment.

--- Later in debate ---

Moved by

[Lord McKenzie of Luton]

58D: Clause 94, page 63, line 22, at end insert—
“( ) Regulations under this section must provide for an exemption from the application of the benefit cap for vulnerable individuals, and individuals and couples with children, who—
(a) as a result of the application of the benefit cap, the relevant local authority would consider threatened with homelessness and in priority need,(b) are owed a duty to be provided with interim or temporary accommodation under section 188, 190, 193 or 200 of the Housing Act 1996, or(c) which the local authority has accepted as homeless and in priority need.”

[Lord McKenzie of Luton]

My Lords, it seems that we are all, Lib Dems, Conservatives and ourselves, in favour of a benefit cap. Perhaps at some stage in the future, some analyst or academic might look back on these times and determine the origin of these policies, what analysis underpinned them and whether assuaging the court of public opinion played any role. It seems from what the Minister said a while ago that it played quite a considerable role.

But we are where we are. My party supports a benefit cap, but one based on fairness. A particular concern for us, as currently proposed, is its potential to drive increased homelessness, which is a major consequence of the cap—homelessness for vulnerable individuals, homelessness for families and homelessness for children. The way in which the cap is to be applied, albeit calculated by reference to a range of benefits, means that it is an effective second cap on housing support. It is a second cap on top of the range of reductions in housing support already introduced through the move to the 30th percentile of local market rents, uprating by CPI, a cap on rent levels and room sizes, and increases in scope of the shared room rate.

Not only will the overall cap dramatically increase the prospects of people becoming homeless but, in some cases, the Government will miss their target, and local authorities will bear the cost of the benefit cap, not the tenant. It will fall on council tax payers. If a family is already in accommodation provided for them under homelessness duties, no shortfall between housing benefit or housing allowance and actual rent will be payable by the tenant. Increasing the shortfall by the cap does not change this. There may be the opportunity to discharge the duty into cheaper accommodation, but this is increasingly unlikely to be available, certainly without significant migration to elsewhere in the UK, with all that that entails.

As Shelter points out, the reach of the household benefit cap goes way beyond the extreme cases generally associated with London, and it will be difficult for many households to afford to rent both in the private sector and at 80 per cent of market rents in the social sector across much of the south-east. It affects not only households with large families. Families in the private rented sector with just two children will be subject to the cap in all of central London. The DWP estimates that 50,000 households will be affected by this measure—I think that the estimate has been uprated to 75,000 households as a result of today’s news—and lose £83 a week on average, with 90,000 adults and 220,000 children affected by the measures. Fifteen per cent of those households will lose more than £150 a week. The Children’s Society has suggested that more than 82,000 children could lose their homes as a result of the cap. As the Children’s Commissioner pointed out in a recent report, the DWP’s own equality impact assessment sees homelessness, diversion of living costs benefits to housing costs and migration within the UK as primary effects of the cap. In a chillingly bland comment, the DWP states in the original impact assessment:

“The cap is likely to affect where different family types will be able to live”.

Housing benefit may no longer cover housing costs and some households may go into rent arrears. This will require expense and effort on the part of the landlords and the courts to evict and seek to recoup rent arrears. The impact assessment continues:

“Some households are likely to present as homeless, and may as a result need to move into more expensive temporary accommodation, at a cost to the local authority”.

It is an awful admission that by deliberate act of policy people are to be made homeless, are to run up rent arrears and are to be evicted; an admission also that reduced costs for the DWP will add cost to local authorities. Can the Minister say whether these increased burdens will be met by central government?

The Children’s Commissioner’s report concluded that the impact of the cap will be increased child poverty with associated poor health, educational and other outcomes. The report identified that in order to stay in their homes, parents who cannot or do not find work will have to divert large amounts of their living costs, the non-housing element of universal credit plus child benefit, to make up the shortfall. This will have obvious consequences for children’s well-being. For those who cannot bridge the loss of housing benefit, the loss of the family home will be severe. Local authorities may well have an obligation to rehouse but this may be in temporary accommodation and may require a move to cheaper areas, if they exist. As 70 per cent of those affected by the cap already live in social housing—that percentage may have been updated by today’s impact assessment—cheaper housing may not exist. Evicting families from such accommodation only to rehouse them in more expensive private sector or temporary accommodation would only add cost for local authorities.

The impact of such moves on families is traumatic, especially for children. We know that children from homeless and transient families are more likely to go missing from education. Uprooting families from support networks, friends and communities can have a severe impact on the emotional and physical well-being of parents and children, and for vulnerable people especially so.

There are a number of ways in which these dire consequences might be addressed and subsequent amendments cover a series of possible ameliorations. This amendment supports the amendment separately tabled by the noble Lord, Lord Best, concerning those owed a duty to be provided with interim or temporary accommodation as part of the homeless safety net. The amendment refers only to English legislation and I was advised today that it should also be extended to Scotland. We might bear that in mind for later stages. As the noble Lord explained in Committee, temporary accommodation tends to be more expensive than mainstream housing and local authorities will struggle to obtain suitable accommodation for homeless families. Our amendment goes further and seeks exemption from the cap for those accepted as homeless and in priority need and those threatened because of the cap with becoming homeless. This raises points of detail that would have to be settled in regulations.

If the cap was introduced, households for which a homeless duty has been assumed and which are in temporary accommodation face a shortfall in rent as well as council tax. Local authorities must either cover the shortfall from the general fund or secure alternative temporary accommodation elsewhere within the monetary limits. However, it takes a long time to procure temporary accommodation and some local authorities will be in longish contracts with owners. They will need a long transition and so it may not be possible. Any family in private accommodation entered into prior to the introduction of the household benefit cap that falls into arrears and is in priority need and threatened with homelessness will be able to apply as homeless to the local authority which can then discharge its duty into alternative private accommodation affordable for the family. In many areas there are already insufficient private rented homes that are affordable to people on the local housing allowance. But this does not relieve the local authority of its duty.

Any family with a secure assured tenancy and facing a shortfall—whether it is a council or housing association property—would in theory be able to ask the local authority to secure them affordable accommodation if they are threatened with homelessness due to arrears. However, as all local authorities have their own allocations procedure this would inevitably mean tenants in secure social housing exchanging these tenancies for assured shorthold private tenancies in cheaper parts of the country, again if they can be obtained. If not, the local authority will have to fund the shortfall.

What would be the effect of our amendment? It would relieve the pressure on local authorities currently housing homeless families which would face the cost of the shortfall in rent if there was no suitable cheaper alternative. It would avoid costs being transferred to the general fund, potentially costing some hard-pressed councils millions of pounds. It would stop some individuals and families being uprooted from their communities. This protection would apply not only to households with children but to vulnerable individuals; for example, those with mental health conditions, disabled people and people fleeing from domestic violence. It would not stop increased homelessness and migration within the UK driven by cuts already announced to housing benefits but it could help to stop it getting much worse. It would not facilitate people remaining in lavish up-market properties, so beloved of the press. The pre-cap housing support would be determined on the basis of the changes already being introduced.

The Minister will doubtless put another of his costings on this amendment. When he does, perhaps he will make sure that he includes the actual costs to local authorities in meeting rent shortfalls; the implications for a range of services in supporting the migration across the country which will flow from the cap; and, of course, the costs to landlords and the courts in pursuing evictions. Most of all, will he factor in the human misery that the cap will generate?

There are a range of other amendments suggesting carve outs for the cap, transitional measures and refining the basis of calculation which can sit perfectly well alongside this amendment. If for no other reason, this amendment can provide for those who seek, and have the leverage to encourage, concessions from the Government, but its primary purpose is to prevent the slide into further poverty and disadvantage that homelessness can bring and the multiple disadvantages that spring from poor housing to blight lives, particularly those of the young. I beg to move.

[Lord Best]

My Lords, I support the amendment. As we have heard, it would mean that families facing immediate homelessness because of the imposition of the benefit cap would be saved.

A major problem with the cap is that, as well as taking no account of the number of children in a family—a point which a later amendment in the name of the right reverend Prelate the Bishop of Ripon and Leeds and others will seek to address—it takes no account of the level of rent: that is, it takes no account of how much of the benefits within a £500 cap must go to the landlord not the tenant. The £500 cap looks relatively high in areas where housing costs are low. In Committee, I quoted £85 per week rent for a council house in the north-east or south Wales, leaving a headroom of £415 per week for benefits to cover all other expenditure. Indeed, the average cost of housing—the £500 is all about comparisons with average earnings—is some £87.50 per week. However, the same cap applies in all areas, including London and the south-east of England, where housing costs are much higher. I am not talking about the extreme cases of refugee families with 10 children living in Hampstead. A rent for a not very salubrious private sector flat in the east end of London can be £350 a week. A £500 cap will plunge a family with three children living there into poverty, with only, in this example, £150 per week left for food, clothing, ever rising fuel bills and the rest, instead of more than £300 as at present. It is not their fault that rents are so high in much of southern England, but clearly the family will have to move out if the application of the cap is not moderated as by this amendment.

However, it is very uncertain where those made homeless can be moved to. The logistics for local authorities of moving large numbers of families to cheaper areas will be extremely complex and expensive. Finding new homes for them, even in a much lower cost area, will not be easy. Most private landlords prefer not to take on tenants on housing benefit and local housing allowance, particularly those not known in the locality, not least because benefit is now seldom paid direct to the landlord. No one wants to send families to so-called benefit ghettos with the lowest quality housing which is bound to undermine the hopes, aspirations and life chances of those sent there. It should be remembered that the new benefits cap is in addition to the caps on rents in high-priced areas which have already been introduced and are now beginning to bite, as existing tenancies come to an end. Regrettably, we are just beginning to see a return to the use of expensive but seedy bed-and-breakfast hotels as the numbers of homeless families rise. The new cap will considerably compound the problem.

This morning on the radio I heard the Secretary of State, Iain Duncan Smith, suggesting that the definition of homelessness was that children would have to share a bedroom. That is a confusion with an earlier amendment which found favour with your Lordships concerning the underoccupation penalty—the so-called bedroom tax—which was not about homelessness at all. Families are deemed to be homeless if the local authority deems that unintentionally they have no place to go. That can happen if they can no longer pay the rent where they are because their benefits are cut drastically. The council is then required to step in to find them somewhere to live. Amendment 58D would avoid that miserable and expensive outcome for thousands of families and tens of thousands of children who will otherwise have to leave their current homes. Two later amendments in my name address two of the most extreme aspects of the imposition of the new cap. At this point, I am pleased to support Amendment 58D.

--- Later in debate ---

[Lord Freud]

We have looked at the human rights issues, putting particular emphasis on households with children and making sure that the arrangements are effective. I shall speak later about payments for children being earmarked. The structure of the universal credit means that it is an overall payment and that there are not different segments going for different purposes. That will simply not be practicable in the universal credit world whereas it is practicable in today’s benefit world. I ask the noble Lord to withdraw his amendment.

[Lord McKenzie of Luton]

My Lords, I should like to thank everyone who has participated in this very extensive debate. Given the time, I will not seek to answer each of the points raised but I will try to touch on some of them. I start with the noble Lord, Lord Freud, who talked about a change in psychology. A lot was said about the universal credit in the debate. We have made clear our support for the universal credit given that it can help people into the labour market but it is very unclear what extra benefit derives from this cap. If such a benefit exists, can the Minister explain the psychology that 54 per cent of the people affected by it are going to be in London and only 3 per cent will be in Wales? What is it about the psychology of those in London and Wales that causes such disparity? Is it possibly something to do with the cost of accommodation and nothing to do with a change in psychology?

The noble Lord, Lord German, asked for an assurance that there would always be a property available for someone who was not able to stay in their current home. I do not believe we heard one. I do not know whether the noble and learned Baroness, Lady Butler-Sloss, or the noble Lord, Lord Ashdown, will be comforted by the transitional arrangements; I certainly was not. I thought they were weak and generalised and have not taken us forward at all. I would say to the noble Lord, Lord Empey, that of course changes in the benefit system are bound to give rise to circumstances where somebody loses out. But the question is not whether you can avoid that; the question is who is losing out, is it fair, and is the construct of the change fair? We challenge whether it is, particularly in relation to homelessness.

The noble Lords, Lord Newton and Lord Fowler, focused on the universal credit. I have made our position clear on that. I was going to ask whether there were any spare badges, but possibly not. Of course, public spending needs to be addressed. We have made our position very clear both on that and on the cap. We support the cap and its level but it must be dealt with in a fair manner. We are perfectly entitled to probe when it is not and to challenge and seek change to its application in relation to homelessness.

The noble Baroness, Lady Hussein-Ece, made a very powerful speech which differentiated between what actually happens on the ground and what affects people’s housing circumstances. The noble Lord, Lord Best, gave us the benefit of his huge experience to say what is happening in the housing market and what these changes can give rise to. The right reverend Prelate the Bishop of Ripon and Leeds reminded us that, quite apart from these changes, homelessness is on the increase. Let us be clear. We are dealing with all those housing benefit changes which we have debated previously. This amendment does not seek to challenge those; it seeks to challenge the consequences of the cap in relation to homelessness.

The points made by the noble Lord, Lord Hamilton, were very effectively addressed by the noble Lord, Lord Winston. The noble Lord, Lord Wigley, questioned how it helps the economy if people move to areas that are cheaper because there are no jobs. Part of the problem is that the Government look at only one side of the equation. They look at what they see as benefit savings forgone, not at the costs generated by the policies they seek to implement. That is the fundamental flaw on this aspect of the cap. I have detained your Lordships long enough. I wish to test the opinion of the House.

--- Later in debate ---

[Lord Brooke of Sutton Mandeville]

This will be not a Second Reading speech but a Second Reading remark, I hope said quickly enough to save my noble friend the Whip getting up gently to rebuke me. It would not have been relevant on the previous amendment but it is on this one.

The noble Lord, Lord Best—I almost called him my noble friend—indicated that homelessness was already on the rise. This debate is about homelessness as much as it is about fairness to children, and will be used as a quarry for homelessness policy in the future. Homelessness can still occur under this amendment in the future where the previous amendment sought to prevent it.

I shall make a counterintuitive comment. For 24 years I represented in the other place what was almost certainly the most poverty-stricken Conservative seat in the country by the proportions of standard household criteria. A lot of my homeless constituents were moved from hotel to hotel, frequently outside my constituency, and often from constituency to constituency. I do not recall anyone talking before about this diaspora but there is no policy, no rule and no mutual convention as to who their MP is as they move to different places. If MPs are not agreed about who their MP is, the poor homeless family cannot be expected to know. In the process, beyond the price their children pay educationally and socially by moving, the whole family pays a democratic price in not knowing who represents them. Believe me, as a former inner-city MP, I know that they stand in considerable need of representation. As a London Member, the present Secretary of State can almost certainly recognise this problem but I reward my Whip’s silence by saying that I am in favour of the cap.

[Lord McKenzie of Luton]

My Lords, this is an important amendment that we can wholeheartedly support. I pay tribute to the right reverend Prelate for his leadership and support for this proposition that has come from many quarters, especially the faith communities. Far from being out of touch, we know that it is the faith communities that so often reach the most disadvantaged people and that statutory services, for all the want of trying, simply cannot reach them.

The debate is fundamentally about fairness. I do not propose to repeat or answer all the points that have been raised. That is the Minister’s job but I agree with the noble Lord, Lord Kirkwood, that if this were about undermining universal credit we would not support it. That is not what it is about; it is a completely separate issue. It has become very confused in the debates we have had both before and now.

I shall speak a little about the dependency culture issue. As I said before, I thought that universal credit was the mechanism to encourage people into work, into the labour market, and to make it clear that being in work paid. That was the key government policy. If that is not sufficient and if it is a deficient policy that needs another component, as said by my noble friend Lady Sherlock, perhaps the Minister can explain that. If this is to drive everyone who is caught by the cap into employment, how does the Minister deal with the point that fewer than half the people on the updated analysis of those who will be caught by it are, on the Government’s own assessment, not required to work, not fit for work or have responsibilities for young children that place them outside the properly constructed category of those who should be expected to work and not rely on benefits? Does the Minister say that somehow the broad policy and all the assessments that have been put in place as a result of universal credit have to be torn up and rewritten for this specific category of 75,000 households? If so, perhaps he can tell us precisely why.

--- Later in debate ---

[Lord Freud]

My Lords, the right reverend Prelate the Bishop of Ripon and Leeds made the point that the job of a member of the church is to look after children in need, but one needs to ask the question about children in need at a slightly different level. For instance, if we leave families with rents that they could never afford in work, what does that do for the children? What does it do for the children in those families when there is no working role model in them? We know what happens to those children. What does it mean to leave them in workless families given the much higher level of poverty that we know exists in them? What does it mean for the generational worklessness that we see in those families? The question that, from a religious point of view, you need to come from is much wider—what is the best thing for those families?—rather than looking at it from a narrow financial basis.

Let me supply the figures because they were just slightly misquoted. We estimate that the savings generated by the cap will be £120 million in 2013-14 and £130 million in subsequent years. I think I heard £113 million. Putting those figures to one side for the moment, the reality is that the savings on this measure are not the core point. We are trying to change behaviours. If we do not cut the benefit bill by the amount we have in the estimate, that is a good thing because we will have got people into work and changed their behaviour.

This measure does something different: it cuts the number of families affected by the cap from 67,000 to about 40,000. That is the real cost of this amendment. It takes the pressure away from those 20,000 families that will go on in the same way that they have been going, and we will not have the behavioural change that we want and need from those families.

[Lord McKenzie of Luton]

The Minister is not dealing with the point. On the latest updated assessment, something like a quarter of the people who will be caught by this cap are on employment and support allowance. Depending on which category they are in, it requires people to move closer to the labour market, but does not require them to work. Why are the Government using this leverage on people in that group? Thirty-eight per cent of them are on income support, which is again a category of people who, for all the reasons we have debated, are not required to work. For people on JSA, you could see this might be an extra spur, but why does this measure cover those people who, under the Government’s assessment and on the basis on which they are going to construct universal credit, are not required to work?

[Lord Freud]

My Lords, on the figures in that new impact assessment, the majority of people have full or partial conditionality in ESA, given the proportions of ESA. Most people on ESA in the support group will, in practice, be on DLA and therefore will not be affected by this cap, so we can look at the majority looking for work. Even if there is no formal conditionality, the message to families is that work is a solution in this circumstance. I need to remind the House that the coalition Government firmly believe that there has to be a limit on the overall level of benefit it is appropriate for the state to provide for those who are not working. Let me be absolutely clear about the structure because this is a point raised by several noble Lords. The noble Baroness, Lady Corston, made the point most emphatically. The structure of this does not take money out of the carer’s pocket because we are not stopping payments of child benefits. Those families will still continue to obtain their child benefit, and there is an offset in the other benefits to get the cap to work. It will not work through child benefit. I know all money is fungible and households will operate within the same overall money, but there is no need for this concern that the money is taken away from the carer directly.

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[Baroness Tyler of Enfield]

My Lords, I would like to add some of my concerns about the impact of the benefit cap in London. The noble Baroness, Lady Howe of Idlicote, has set out very clearly and eloquently all the facts and figures and I certainly do not wish to repeat them. I shall pick out one which is particularly relevant to me.

The level of rents in London means that families with just two children will be subject to the cap in many parts of inner London and also in some parts of outer London, including Newham, Haringey, where I live, and Hounslow. I am concerned about the impact of this on mixed communities, or looking at it the other way, one might refer to social segregation as poorer families are moved out of expensive areas. This is a very particular issue in London in terms of social cohesion. It also puts pressure on public services. I think that London Boroughs is right to be worried. The migration and concentrations of workless households in some areas will potentially have significant implications for the full range of local authority services. Boroughs with an inward migration of households are likely to face significantly increased service pressures very quickly and with very little time to plan for them in relation to unemployment, poverty, housing and so on. On the other side of the coin, boroughs that experience reduced demand for such services—again very quickly and without time for planning to adjust—will certainly face challenges and costs in adapting to different, if reduced, demands.

Families, particularly larger families, will be very much affected. In London it will also affect families with two children. I share the concerns that have already been voiced by the noble Baroness opposite. I also hope that there will be an opportunity to meet the Minister and London Councils to discuss further the sort of measures that could be put in place to mitigate some of the harsher implications that I have just set out.

[Lord McKenzie of Luton]

My Lords, I start with the amendments of the noble Baroness, Lady Flather. I find them confused on a number of levels. I should explain that during Second Reading—the noble Baroness referred to my comments about not wishing to hear what she said again—she said that Pakistani and Bangladeshi communities have lots of children because of the money. I objected to that and I thought I objected in about as gentle a way as one can, without being rude, and that is consistent with how we do business in this House.

The noble Baroness has just made reference to Luton and supposed problems there. I know Luton well; I live there. One of the strengths of Luton is its great diversity. We have a range of communities and—I almost called him my noble friend—the noble Lord, Lord Hussain, would attest to that as well. Having diversity brings challenges but also joy and I believe that is a great strength of Luton. I do not believe the proposition that people in any community, particularly the Pakistani and Bangladeshi communities, have lots of children because they believe it will be beneficial in terms of child benefit. If people had children only on the basis of a cost benefit analysis, I suppose there would be no children at all, given all the challenges that come with them. My experience of communities in Luton, particularly the Bangladeshi, Pakistani and Indian community, is that there is great aspiration for their children. If you sit down with people, you hear them speak with pride about their children just having qualified as a doctor, or a lawyer, or even some as an accountant, which brings particular pleasure. I honestly do not see the picture painted by the noble Baroness.

Technically, it seems to me that the amendment that she moved is flawed. As I understand it, the “relevant amount” is that which is based on estimated average earnings and effectively sets the level of the cap. It does not, therefore, specifically include amounts in respect of children. If it were based on income, rather than earnings—depending on the definitions—of course it would. It could, for example, involve child benefit, but this is not how the Government wish to proceed and it is not how they have constructed the cap.

Universal credit will be, as we have discussed, an in-and-out-of-work benefit and we still do not know what the cut-off point will be for those treated as in work. Perhaps the Minister can give us an update on that. Presumably the calculation of earnings would not include any amount of universal credit. If the noble Baroness is arguing that an award of universal credit should involve reduced amounts for third and fourth children, in terms of the cap, of course, that would clearly lessen its impact. However, the family cap of £26,000 applies regardless of the number of children in the household, so larger families are likely to be particularly affected, as we have just discussed. Estimates are that 80 per cent of the households likely to be affected by the cap will include three or more children. We know from the DWP impact assessment—certainly the original one—that children from BME groups are more likely to be disproportionately hit by the cap. It would seem that what the noble Baroness intends would drive these families further into poverty and that is not something that we could countenance or support in any way.

The noble Baroness, Lady Howe, introduced some interesting amendments. Certainly the issue of the impact on London, particularly of high rents, featured in our earlier discussion and that is recognised. The broader issue of whether one could have benefits constructed on a regional basis is a very wide debate—we would be unwise to tick that through tonight—although we should recognise that it is done, for example in local housing allowances done on a local basis, structured by reference to local market areas.

--- Later in debate ---

[Baroness Flather]

My Lords, I will just say a few words about what has been said about my amendment. I was very surprised to hear the noble Lord, Lord McKenzie of Luton, say that the Pakistanis, Bangladeshis and Indians all have the same aspirations. I am sorry to say that I do not agree with that. I am afraid the aspirations of Indians are very high, but the aspirations of Bangladeshis and Pakistanis do not come up to the same level, as they do not have as much interest in education as in Indian communities. The Indian communities are mostly in work—more in work than any other community except for the Poles. A survey by Channel 4 said that the highest number of taxpayers of the immigrant communities were the Indians and the Poles. I would like there to be a little more consideration of the fact that Pakistani and Bangladeshi communities in Tower Hamlets, in Yorkshire and in Lancashire are not doing well. Whatever way could be found to help them to do well would be a good thing.

[Lord McKenzie of Luton]

: My Lords, I do not wish to be unkind, but we do not have to subject ourselves to this nonsense, do we? This is absolutely outrageous.

[Baroness Flather]

My Lords, forgive me, but I thought I was a Peer here, and being a Peer means being equal.

Welfare Reform Bill

Lord McKenzie of Luton Excerpts

Monday 23rd January 2012 Lords Chamber

[Baroness Thomas of Winchester]

I have a more specific question about disability living allowance and I think this may be the right place to ask it. If someone living in a high-cost rental area on local housing allowance has a serious accident or is diagnosed with a serious long-term condition, perhaps next March, and is placed in the ESA work-related activity group, they might apply for disability living allowance. They might have had a stroke that was not bad enough to take them out of the jobs market for a very long term but that would require them to take a long period of recovery, and they might have been quite badly affected. This person will have to be assessed and then wait for a qualifying period of three months. If during those three months the person in the household falls foul of the benefit cap, will they be penalised immediately or will their application for DLA be taken into account, which of course will then exempt them from the cap? This is an important matter which we have not heard anything about. It might be part of the transitional arrangements that we hope we will hear about, but I would hate that person, with all their difficulties, to have to think about having to look for another place to live when they are trying to recover from quite a serious illness.

[Lord McKenzie of Luton]

My Lords, Amendment 60A seeks to protect carers from the impact of the benefit cap in cases in which they are not living with the person for whom they care. On the last day on which we debated the Bill, the Minister told us of the value that the Government place on carers and their work. However, the Bill is drafted in such a way that this work will be valued only when the carer lives with the person for whom they care and thus excluded from the benefit cap by virtue of that person’s eligibility for DLA or PIP. Carers who are not part of the DLA claimant’s household, as we have heard, will be subject to the benefit cap. They are therefore likely to lose their carer’s allowance, suggesting that the Government place no value on their care.

As we have heard, the latest impact assessment estimates that 5,000 carers will be affected by the cap—that is the number provided by my noble friend Lady Lister—and yet not only does such care save the taxpayer thousands of pounds but the carer will be almost unable to work—or at least full time—by virtue of their caring. So they may face the choice of ending their care role in order to live. This is not theoretical. One in six carers has made the difficult decision to give up work to care, leading to an average loss of £11,000 a year. Many such families struggle to make ends meet as they cope with both a drop in income and the increased costs of caring—for example, through buying extra support and equipment and travelling to hospital and doctors’ appointments.

The impact of the cap will be to make this struggle significantly more difficult. Carers affected could lose £87 a week. Indeed, it may mean that some carers are faced with a tough choice between giving up caring—imposing significant costs on health and social care services—or taking a significant financial hit.

The Secretary of State for Work and Pensions told the BBC on Friday that people were “not suffering” as a result of his welfare reforms. Perhaps he would like to reconsider whether carers are likely to suffer if the amendment is not passed.

The Secretary of State might also consider the case of some of our service personnel. War widows are excluded—quite rightly—from the benefit cap, but should a mother helping to look after her son, injured in Kabul or Iraq, and claiming carer’s allowance for this, still be subject to the cap? Is that fair? I look forward to the Minister’s response.

Amendment 61, which relates to temporary accommodation, was to a degree dealt with in the first amendment we discussed today. It was a component of that broader amendment. We certainly support the amendment. I took it from what the Minister said in response to that general debate that something was afoot to address this issue but, without having had the chance to read Hansard yet, it was not totally clear what. Perhaps he will take the opportunity of saying it again, expanding, promising to write or whichever of those options he feels appropriate. It sounded as though there was a recognition of the need to address the issue that has been raised by the amendment. I certainly support the fact that there should be a move to address this and I look forward to receiving further information.

We very much support Amendment 60 and a period of grace. We would have been happy to support 52 weeks, but if 26 weeks is what the noble Lord, Lord Best, is pressing for, we would certainly support that should he wish to press the matter.

I say to the noble Lord, Lord Stoneham, that there are two things here. There are issues around transition. I see that the Lib Dem Benches are placing great faith in what might flow from transition and the offers that might come. However, I think that is different from an ongoing period of grace. The purpose of this, as the noble Lord, Lord Best, and my noble friend Lady Drake have enunciated, is to help people who fall out of work and to allow them a period of adjustment or a period of grace before the cap hits. There might be a transitional component to that, but this needs to be something of a permanent feature of the arrangements to make sense.

I suppose that six months corresponds with the contributory JSA period. My noble friend Lady Drake may be more up to date than I am on the data. It used to be 50 per cent back in work in three months and 75 per cent in six months. The data may have moved on. Certainly, given the unemployment figures that are around, I think even the longer period suggested by my noble friend must be somewhat difficult. The arguments in favour of a period of grace seem to be overwhelming. For someone to have to cope with all the traumas of losing their job and at the same time have to face changes in accommodation and moving to a new area, which could be a direct consequence of the cap, would be unforgivable. I hope that the Minister can say something positive on that as well.

[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)]

My Lords, Amendment 60 would require us to provide for a period of 26 weeks during which we could not apply the benefit cap. The period would start from the date that a claimant’s welfare benefits first exceeded the level of the cap. It would therefore not only apply to new claimants, but also to existing claimants who have a change of circumstance that results in the level of the benefits that they receive exceeding that of the cap. We have said all along that we would look at ways of easing the transition for families. We do not want families to be taken by surprise by the cap or to create problems that people can avoid by taking appropriate steps. We want to ensure that people who might be affected by the cap know what to expect and can consider the options open to them.

There has been a lot of speculation in the press about whether a grace period is what the Government have in mind. Clearly, a grace period could be a way of easing transitions, especially for people who have recently been in work and can be expected to return to work within a short period. A grace period would mean that their benefit entitlement would not be affected when they first leave work. This would avoid the risk that they would be prevented from looking for work because of the need to adjust their circumstances because of the cap. That point has been made in the debate.

However, people who have recently enjoyed a high income are better able to deal with temporary shortfall and can and should be expected to have made their own provision if they know that there are limits on benefit entitlement. A grace period also carries the risk that people are likely to stay on benefits for longer than they would otherwise simply because a higher rate of benefit is temporarily available to them, so while the grace period approach is clearly one possible approach, it needs careful consideration. Issues with run-ons and things like that would need to be looked at very carefully. We also need to consider whether other approaches may be just as effective or indeed more effective for some groups. What I can say today, as I said in Grand Committee, is that we are well aware of the issues, we are confident that we have the powers we need to ease transitions and we will consider the case for a grace period along with the other options that might be available.

Amendment 60A seeks to exclude carers from the benefit cap. For carers the benefit system is designed to provide financial support where caring responsibilities prevent carers working full time and, as such, carer’s allowance should be treated in the same way for the purposes of the cap alongside other income maintenance benefits. However, households which include a member who is in receipt of DLA, PIP on its introduction, attendance allowance or constant attendance allowance, will be exempt from the impact of the benefits cap. Households where a member receives carer’s allowance but no members receive DLA, attendance allowance or constant attendance allowance, will not be so exempt. As the noble Baroness, Lady Lister, who is a fast reader, pointed out, the revised impact assessment states that 5,000 claimants fall into this group. One of the reasons that the number is rather less than one might have expected—or that I suspect the noble Baroness, Lady Hollins, expected—is because we are looking at two benefit units, so the disabled person retains all their disability benefits and the rest of the benefits are received by the other householder. That is one of the reasons why the figures net down to rather a small number.

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[Baroness Meacher]

My Lords, I rise to move, very briefly, Amendment 62 on behalf of my noble friend Lord Ramsbotham, who apologises to the House for not being able to be in his place. As noble Lords will know, he generally speaks with little in the way of notes, so I shall do my best.

The purpose of the amendment is to ensure that regulations will provide for prisoners who were receiving benefit at the time of their imprisonment to be assessed during their time in prison or custody for their eligibility for benefit on their release from custody. I passionately agree with my noble friend Lord Ramsbotham that the amendment has huge merit. In Grand Committee the Minister outlined the arrangements that have been made to cover those who claim jobseeker’s allowance, which my noble friend accepts, but the Minister did not accept my noble friend’s proposal that all prisoners should have claims to other benefits processed before release.

Last week my noble friend had an extremely useful meeting with officials in the DWP, with whom he discussed the situation, reaching the following conclusion—that my noble friend Lord Ramsbotham would now table an amendment to the Legal Aid, Sentencing and Punishment of Offenders Bill, putting the onus on the Ministry of Justice to confirm a prisoner’s national insurance number and current entitlement to benefits on reception into prison. Before release, these should be processed in time for suspended benefits to be resumed and necessary arrangements made to cover the gap before any payment could otherwise be made, subject to payment in arrears. This will require protocols between the DWP and the MoJ to be established. The question is whether the Minister will be prepared to support this proposal.

The arguments in support of the amendment were put by my noble friend Lord Ramsbotham most forcefully in Committee and I shall not repeat them. I beg to move.

[Lord McKenzie of Luton]

My Lords, I shall speak briefly. The thrust of what the noble Lord, Lord Ramsbotham, is trying to achieve has considerable merit. I wonder how some of the detail in the amendment about assessments when people start their sentence would work in practice, particularly if someone is likely to be in prison for some while.

We dealt with regulations about a fortnight ago on the importance of people being able to get into the work programme on immediate release from prison. However, I was a little disturbed that, as the Minister explained, applying for JSA was voluntary but that once on JSA there was an inevitable path into the work programme. That of itself is fine, except that it may not take account of many good programmes that are already around in prisons where people are supported sometimes before they leave prison and certainly supported when they do. The route via the work programme might pre-empt and override all of that. The noble Lord, Lord Kirkwood, was involved in that debate.

The thrust of trying to get as many benefits as possible sorted out for individuals before or at the point they leave prison must be helpful to them. The opportunity for them to have resource—presumably under the advance payment arrangements if it happens immediately, because typically benefits would be payable in arrears—is fine, but there is a concern about potentially damaging those good programmes in prison, where they exist, which help people to adjust to the world of work before they formally finish their sentence.

--- Later in debate ---

[Lord Kirkwood of Kirkhope]

My Lords, I concur with the noble Baroness, Lady Lister.

[Lord McKenzie of Luton]

My Lords, for the sake of brevity, I can say that I also concur with my noble friend and with the noble Lord, Lord Kirkwood. My noble friend is simply seeking to have the issue on the record.

[Lord Freud]

My Lords, I shall speak to Amendments 62ZA and 62B. I could almost do so like my noble friend Lord Kirkwood, but I will speak at slightly greater length.

I would like to assure noble Lords that we are in agreement on the need to ensure that a claimant’s childcare responsibilities are taken into account when setting work-related requirements and when determining whether a claimant has good reason for failing to meet a requirement. For the record, let me set out how we intend to do this.

The legislation will provide clear safeguards. When a child is under one, support will be unconditional. When a claimant’s child is under five, we will ask the claimant only to attend work-focused interviews. If claimants fail to meet this requirement for no good reason, they will be subject to the lowest level sanction; the sanctionable amount for these claimants will be limited to 40 per cent of the sanctionable amount for other claimants.

Secondly, advisers will take childcare responsibilities into account when setting work-related requirements, and we intend to set out some specific safeguards on this issue in regulations. Regulations will prescribe that claimants with a child under 13 will be able to limit their work search to jobs that fit around their children’s school hours. This is key. The best way to prevent the inappropriate application of sanctions is to ensure that requirements are reasonable in the first instance.

Amendment 62B seeks to introduce a blanket exemption from conditionality sanctions for claimants who can demonstrate that they did not have guaranteed and predictable access to suitable childcare. We do not think such a legislative exemption is needed. As I have previously explained, when a claimant fails to meet a requirement, a sanction will be imposed only if the claimant does not demonstrate that there was a good reason. In considering whether there is good reason, we will consider all relevant matters raised by the claimant, which could include the availability and cost of suitable childcare. This flexible, case-by-case approach is the right one, but to be absolutely clear, when a claimant demonstrates that a lack suitable childcare meant that the claimant was unable to meet a work-related requirement, a decision-maker should determine that the claimant has good reason and a sanction will not be applied.

Noble Lords have previously raised concerns about where the responsibilities lie in relation to the provision of good reason. I would like to take this opportunity to clarify the position. We have a responsibility to ensure that claimants understand the decision-making process and that they have an opportunity to explain the reason for a failure to meet a requirement. The onus is then on the claimant to tell us the reasons and provide supporting evidence where necessary. The department must then determine whether the reasons raised are relevant and whether any of those reasons constitute a good reason. The current practice of visiting ESA claimants with a mental health condition or learning disability before the application of a sanction is a good example of the proactive process required to collect evidence of good reason in some cases. I can assure noble Lords that we will review our approach to collecting evidence of good reason for all claimants to ensure that we get this process right.

The final safeguard is the appeals system. Any decision to reduce an award as a result of a sanction can be appealed to the First-tier Tribunal. Amendment 62ZA seeks to require the tribunal to consider whether the claimant had guaranteed and predictable access to childcare. We do not want to go down the route of prescribing specific matters to be taken into account by an independent body; the existing legislation is clear and sufficient. The First-tier Tribunal must consider any issue or circumstance raised by the claimant that is relevant to a valid appeal, so in an appeal against a decision to reduce an award of benefit because of a sanction where a claimant cites lack of suitable childcare as a good reason for failure, this should be considered by the tribunal because it is plainly relevant to whether the award ought to have been reduced.

Given the safeguards we have in place and the commitment I have made to reviewing our processes for collecting evidence for good reasons, I hope I have provided the assurances on the record that were required by the noble Baroness and I urge her to withdraw this amendment.

Welfare Reform Bill

Lord McKenzie of Luton Excerpts

Tuesday 17th January 2012 Lords Chamber

[Baroness Finlay of Llandaff]

My Lords, the noble Lord, Lord Patel, and I have amendments in this group. Our noble friend Lady Meacher has spoken most eloquently to the specific problems for these age groups. This is Report stage, and we are well aware that there has already been much debate about young people who have to transition between children’s services and those for adults. However, I remind the Minister that, coming from a medical background, we have tabled our amendment because of the specific problems for those who fall ill suddenly or who are severely ill. As they transition for all their care in the medical sense, they transition also for all their life events and social interactions. They struggle to move to a degree of independent adulthood and are faced with a whole range of problems that those who are more settled either in the security of childhood or, later on, in an adult framework might not encounter so acutely. For that reason, we ask the Government to allow them to be considered separately should it be appropriate.

[Lord McKenzie of Luton]

My Lords, we have strong sympathy with these amendments, spoken to so effectively by the noble Baronesses, Lady Meacher and Lady Finlay. We had a bit of a canter around this issue in Committee, focusing particularly on 16 to 24 year-olds. I took from that debate, and the Minister may take the opportunity to confirm or deny it, that there is potentially scope within the Bill for a regulation not to require 16 year-olds inevitably to move towards PIP. If that is not the case, it is important that we clarify it, because it impacts on how we approach the amendment.

A number of questions have been posed which I should like to emphasise. The first is whether the Minister contends that the PIP assessment as currently constructed is fit. Does he believe that it would be appropriate for most 16 year-olds? The assertion is that it is not. Another issue is the extent to which there is alignment of ages for a range of things—the UN convention certainly, but care generally and education and training. Would it not be better if that alignment were brought into effect also for the purposes of the PIP and the DLA cut-off?

When somebody aged 15 is about to become 16, that is the point at which things change on the DLA journey and we move into a somewhat different regime. If somebody reaches that once PIP is up and running, do they inevitably have to apply and go through the PIP process at that point, or is there an opportunity for them to remain within DLA or perhaps migrate at a subsequent point? Otherwise, there is a real risk that these young people will the first to test the new PIP arrangements. What is the technical position there? Does somebody who wishes to make their first claim after the age of 16 have the route only to PIP and not to DLA? Would somebody currently claiming DLA necessarily be denied the opportunity to continue with that until, perhaps, the migration plan has run its course? I thought part of the noble Lord’s response to our Committee debates was that you could deal with this in part by the way people in the DLA system migrated towards PIP. One way of dealing with some of the issues that have been very validly raised in this amendment would be to use that flexibility, if it exists. If not, it seems doubly important to lock into the 18 year-old cut-off point, which is being pressed.

[Lord Freud]

My Lords, I welcome these amendments tabled by the noble Baroness, Lady Meacher, and the noble Lord, Lord Patel. They allow me just to go through how the Government intend to introduce PIP successfully for young disabled people from the age of 16. Clearly, the central question is whether 16 or 18 is the right age. In one sense, all ages are a little arbitrary here. Adulthood is defined at different ages in different contexts. The key to the decision to start PIP at 16 was based around the assessment criteria and at what stage people fit in with those, in terms of the activities that they can undergo and how we can look at them. When we looked at it with a range of experts, we concluded that you would normally expect individuals without disabilities to be able to carry out these activities independently from the age of 16. For example, you would expect a 16 year-old to be able to wash and dress themselves, to communicate with others, to plan, and to follow and make a journey. It is the age at which, currently, you expect individuals to be able to be employed full-time. There is a general expectation that they have the capabilities of adults.

The group looked at whether you would expect even younger people—I had better use that word now, rather than adults or children—to fit this assessment. They concluded that children go through several developmental stages under the age of 16, and they do that at uneven speeds. So, there was a cut-off in developmental terms between the two stages, for the purposes of this test, at 16. The other way of looking at this is that it is about trying to move people into adulthood and independence. A lot of these youngsters are living in their households but need to move to independence. Having their own independent help and their own funding in PIP at that age matches their aspirations to move into adulthood, and allows them to make their own decisions about aspects of their lives.

This is an area where, as we described in our policy document, we have set out our intentions and outlined the key principles that we have debated and agreed with stakeholders. We have set up a subgroup of the PIP implementation development group specifically to help and inform the design and testing of the new system in relation to disabled young adults. Together with the focus group work and the interviews that we have held with disabled young people, their appointees and representatives, this is the process that we have under way to get the system right. One of the most important areas where we are using the development group is around the question of how we look at the process of moving people into the 16 category and how we signpost, communicate and get awareness of the changes and then join up the support for disabled young adults and their families.

Clearly, this is not the only testing that disabled youngsters undergo in this phase of their lives. There are a number of assessments as they move from childhood to adulthood. We will ensure that all young people claiming PIP or moving on to it at age 16 have the appropriate support to allow them fully to express their needs. We know it is important that they have a parent, an advocate or a friend to accompany them to that face-to-face consultation. We are not changing anything in terms of DLA in this area. We are changing a lot of things by moving DLA to PIP, and we will be discussing some of them, but in this area we are sticking with the same age as the existing DLA arrangements.

There was an anomaly that the noble Baroness, Lady Meacher, tried to pin me down on and defied me to find a good explanation for. I have been challenged and I shall do my best. On the point about the difference between the universal credit at 18 and PIP at 16, the blunt answer is that these are different benefits for different purposes. It is important that we do not think of PIP as an income supplement; that is not what it is, and nor is it for someone who is out of work. PIP is a payment to people who are disabled who will always need extra money to live because their costs of living are higher, and we will pay it regardless of whether people are in work or out of work. That is why it is a different argument. By giving PIP earlier, we are giving youngsters their independent funding to run their own lives from that point—not from the point when they are meant to be in the workforce and fully independent—when, if they do not have a job, they will need an income supplement. That is the difference. I hope that I have risen to the challenge; I am sure that the noble Baroness will say that I have not, but I have done my best.

We are working closely with the Department for Education to explore evidence gathered so that we can have a single assessment for an education, health and care plan that can be used to support a personal independence payment claim. We are trying to get rid of all the multiple assessments.

--- Later in debate ---

[Baroness Wilkins]

My Lords, I strongly support the amendment, which has the support of many disability organisations and thousands of disabled people and their families who face losing help under the Government’s plans.

The noble Baroness, Lady Grey-Thompson, has already outlined the numbers of people affected by the Government’s proposals. These people are not fakers and scroungers. Of current low-rate care claimants, DWP statistics show that 20,000 are blind, 57,000 have learning disabilities, 94,000 have arthritis, and more than 100,000 experience psychosis or psychoneurosis. These are some of the people affected, and these conditions are clearly not fake. These are the people who the Government suggest should lose support.

Disabled people have told the Government exactly what losing low-rate care could mean. Examples include people who categorically state the clear health and social care consequences of cutting DLA, as the noble Baroness, Lady Grey-Thompson, outlined. I shall cite examples of people who have commented. One said:

“If DLA was reduced or removed then I would be unable to attend doctors and hospital appointments due to the cost of getting to and from them, and my health would be severely put at risk due to not having enough money to either keep myself warm and/or fed”.

Another said:

“We would be in crisis—end of story … my son would start self-harming again”,

and that even,

“prescriptions would be out of the question”.

The amendment could help prevent an explosion of avoidable NHS and social care needs, as the noble Baroness said. Will those needs of the disabled people who are losing help be met elsewhere? I fear that no support may be available from any other public service for many of the 400,000 who will lose all their DLA. The past decade has seen a shrinking of council social care service provision through the tightening of eligibility criteria. More than 80 per cent of councils in England now help only people with critical or substantial needs. The people losing DLA may very well not be able to access care services until crises develop. This leaves families, friends and neighbours to care for them. We already have one of the highest economic inactivity rates due to informal care provision. By not accepting this amendment the Government risk ignoring the impact on carers—especially on women aged between 46 and 64 who are more likely to have to take up caring responsibilities in lieu of formal services or benefit provision.

In proposing to abolish low-rate care provision, the department appears to fail to understand or, worse, to wilfully ignore the genuine needs of disabled people and carers. The amendment would help the Government ensure that they did not simply end the lifeline of DLA for disabled people and families who are unable to access alternative help until they receive expensive NHS treatment or residential care. Accepting the amendment and devising a fairer way to share the burden of the proposed dramatic cut in DLA resources would also help the Government ensure that they do not permanently undermine disabled people and the trust and confidence of carers. I hope that the Government really mean what they have said—that we are all in this together.

[Lord McKenzie of Luton]

My Lords, I will speak just briefly on this. It seems to me that the importance of this amendment has been heightened by the documentation we got just yesterday from the DWP, which emphasised that half a million people are going to miss out under the new system compared with the current arrangements. In passing, I might say that it would have been more helpful had we had that documentation a little earlier so we could have studied it in more detail, although clearly the noble Baroness, Lady Grey-Thompson, has delved into it more deeply than I have had the chance to do.

There must be an onus on the Government to undertake some sort of assessment of the consequences for those half a million people who are not going to be able to benefit under the new system. Some of the consequences have been spelt out, such as extra pressure on social services and the health service. We know there will be loss of income tax and national insurance because DLA helps many people to stay in work or to work longer than they otherwise would. All those consequences are quite apart from the worst feature which is the human cost for people who are going to miss out who had been able to rely on funding and not just at the lower rate. It may be that most of those who fall out of the system are currently on the lower rate of DLA, but that certainly is not the case for all of them.

It seems to me that this approach reinforces the perception that is too prevalent that if you claim these benefits then somehow you are not worthy and you do not really deserve them. Half a million people will come out of the system under these proposals. What are the consequences for them? What assessment have the Government undertaken of their needs as a consequence of falling out of the system? Have they or will they look at the sort of proposal that this amendment covers so that there is some basis for bringing some redress for those people who, on any analysis, are bound to suffer as a result of these proposed changes?

[Lord Wigley]

My Lords, before the Minister gets up—I am sorry I did not get in before the noble Lord on the Opposition Front Bench, who beat me to it—I want to say a few words in support of Amendment 50ZGB moved by the noble Baroness, Lady Grey-Thompson. It provides a basic rate of daily-living payment to minimise the number of disabled people who might otherwise be totally deprived of such focused help. Listening to Radio 4 this morning and hearing the Minister from the House of Commons acknowledging that 500,000 people could be hit by these changes really brought home to everyone the significance of what we are talking about. The ending of lower-rate DLA will leave people with needs arising from their disability but without the means to pay for them.

The point was made earlier by the Minister—and I understand his point—that the day-to-day costs of living are covered separately from the additional costs of disability. The implication is that people who would be in the lower group do not have additional costs of disability, but we all know from experience that they do and they are going to be losing out as a direct result. If the Government’s intention is that so many people who have previously been recognised and acknowledged as having needs will no longer be helped to meet those needs, let them say so. I think it is a very retrograde step.

--- Later in debate ---

[Baroness Browning]

In the context of this amendment and the ability of health and social services to carry out their statutory responsibilities under the Autism Act, will my noble friend agree to take a look the number of people who currently have DLA but are predicted to lose it? There is a read-across here, because small levels of support have been identified as having prevented people taking their place in society and gaining independent living.

As I mentioned previously, I am concerned that as regards those who will lose the allowance—some will and others who apply in the future will not get it—the measure is going to have an impact on the way in which we have required health and social services to implement the Autism Act. Does my noble friend agree that there will be some hardship for those who lose it and that we have to face up to that reality, and that the Government should have a clear and examined view of how they are going to square that with the new statutory responsibility?

[Lord McKenzie of Luton]

My Lords, we support this amendment, moved so comprehensively by the noble Baroness, Lady Grey-Thompson, and spoken to so effectively by the noble Lord, Lord Low. I would say to the noble Lord, Lord Newton, that in doing so we are not motivated by a belief that this is all some dastardly plot, but a belief that we need to be assured that the system does not just need to be tweaked but that it is fit for purpose before this major change is introduced.

This amendment is aimed at helping the Government get right the process of transfer from DLA to the personal independence payment. It calls for an added layer of safeguards within the process of reform, with an independent review of the plans for operation of the assessments before they start and a trial period when the assessment process first comes into effect. Crucially, it calls for the full involvement of disabled people and their organisations in this process, ensuring that they have confidence that the assessment process for the new benefit will be fair. The need for safeguards in this area has been all too fully revealed with the experience of the employment and support allowance. The noble Lord, Lord Newton, told us that he was responsible for introducing DLA—which in Committee the noble Lord, Lord Low, called an “iconic” benefit—and he should be proud of that achievement. I have some responsibility for having introduced the employment and support allowance so I cannot claim any such accolade.

It is clear that the assessment process has not been working and has caused not only distress to too many disabled people but considerable headaches for the Government. We all know that 39 per cent of appeals have led to a decision about ESA being overturned in favour of the claimant, and the unreliability of the assessment procedure has also made it difficult for the Government accurately to budget for the cost of these reforms. The Office for Budget Responsibility’s November economic and fiscal outlook states:

“ESA changes have resulted in an increase in expenditure of £1 billion by 2015-16”,

and the latest administrative data suggest that fewer people than previously assumed will be judged fit for work as a result of the initial ESA work capability assessment and the reassessment of incapacity benefit cases, and more will be placed in the support group. This accounts for around four-fifths of the increase. Other changes arise from a change in assumptions about the composition of the ESA caseload, which results in higher average benefit payments per person and higher inflows. The costs of getting this process wrong can therefore be high, and we know that the Government have benefited from the independent review of the ESA assessment process undertaken by Professor Harrington.

As other noble Lords have said, we received just yesterday the document providing further information about the second draft of the PIP assessment criteria, together with proposals on entitlement thresholds, impact modelling and case studies. While this technically fulfils the Minister’s commitment that we should get it before the Report day, as we have previously noted, there has hardly been time for detailed study and analysis—although it is hard to miss the startling figure that some half a million disabled people will be excluded from the new benefit in comparison to existing DLA arrangements. Before causing this to happen, the Government should be called to account for the impact that this may have on the disabled people who are missing out.

--- Later in debate ---

[Lord Kirkwood of Kirkhope]

The noble Lord is an experienced hand and has made a very interesting speech, but it would help the House enormously if he could be tempted to give an assessment—if he was the Minister facing Amendment 50—of how long he thinks it would take to discharge the responsibilities contained in the amendment.

[Lord McKenzie of Luton]

It is clear that the Government are going to have to do some of this anyway, but in terms of an overall time period it is clearly a matter of some months rather than weeks, but not a matter of years. It depends on the determination and effort that the Government bring to bear. They have the levers and the resources to cause this to happen quite quickly, I would suggest, but there has to be full engagement with disabled people for it to be meaningful. This does not mean endless delay in the introduction but it does mean a real level of reassurance before we embark upon this very significant change.

[Lord Freud]

I will come to my conclusion first. Basically, we are doing a lot of trialling in this process and the way that this particular amendment is drawn would delay us very significantly. At the end of my speech, I will give the noble Lord the actual cost that we estimate the delays will represent.

I will spend a bit of time highlighting our approach to developing, testing and refining the assessment criteria that we already have. We have been developing those in collaboration with a group of independent experts, including disabled people and disability organisations. We had initial proposals on which we then carried out 16 weeks of consultation. We met 60 disability organisations; had 170 written responses; and carried out testing involving sample assessments of around 900 volunteers selected from current or recent DLA claimants. Both the testing and the consultation were very effective and allowed us to review, revise and improve the draft assessment criteria from that published in May. We provided a second draft in November in advance of discussing the PIP clauses in Grand Committee. Since publication, we sought the initial views of disabled people and the organisations that represent them in an informal way to listen to their thoughts. Yesterday, as promised, we published a further document detailing our initial thinking on entitlement thresholds for the rates and components of PIP. We have now commenced a formal consultation on the entire assessment criteria, including the weightings and entitlement thresholds which will last for 15 weeks.

That gives disabled people and disability representative groups the opportunity to tell us what they think the criteria will mean to them and their members and what amendments might be needed before we finalise the regulations. I can assure my noble friend Lord Newton that those regulations, which we will lay later this year, will be subject to the full affirmative procedure of both Houses. We are confident that we will be able to test the impact of these using the data we gathered during our earlier exercise. If for any reason this is insufficient, we will carry out additional testing to support our analysis. In response to a specific request from my noble friend Lady Browning, I will personally look at the impact of this on our autism obligations and I will make sure that that is done as a key part of this process.

There have been, and there remain, significant opportunities for involvement from disabled people and their organisations, and significant opportunities to influence our proposals to ensure we get them right. That, however, is not all. In terms of the delivery and operation of PIP, we intend to continue to develop a number of our operational processes in conjunction with disabled people and their representative groups through our implementation development group, which I talked about a little earlier this evening. This group has already played such an important role that it is our intention to retain its services after April 2013 in order to work with it to help evaluate the new delivery arrangements.

We have also created a number of customer research panels, made up of groups of disabled people who share similar characteristics, in order to understand, and gain an insight on, how the process impacts upon them. We will also test our operational processes in a model office environment, allowing us to see how they work without affecting individuals’ benefit entitlement. The trouble with a formal trial, of course, is that it would change what people actually get even though we are trialling. Here, by doing it in a model office, we can do it in a way that does not actually affect what they receive, but we know exactly how it will work.

We want similar arrangements to be in place with regard to the processes of the eventual supplier of the assessments of the benefit. We will be making it clear to bidding organisations that we expect them to work with disability organisations on the design of their processes, to improve the customer experience. This will be before, during and post-implementation. This will be a clear requirement in the contracts.

As well as getting the whole development process right, I recognise the value in moving away from a big-bang approach to implementation which would see both new claims and reassessments beginning in April 2013. Since the Committee stage, a significant amount of work has been undertaken to investigate the options for ensuring a sensible implementation which allows us to learn from early experience. Therefore, I can inform the House that, in addition to the pre-implementation testing work that I have already mentioned, we will limit the number of new claims for personal independence payment to a few thousand per month for the first few months of implementation. This will allow us fully to trial all the processes in a truly live environment. We are still developing the details on how we can meet our claimant target over the first few months.

Once we are satisfied that the new processes are working as intended with this reduced number, we will allow all new claims for personal independence payment to enter into the process. We will continue monitoring and reviewing the processes to ensure they are working effectively and appropriately and to see how claimants are finding the experience. We will begin to reassess existing DLA claimants in a co-ordinated way six months after the initial implementation. Again, we will stagger this process. We expect the first stage of reassessment to start in the autumn of 2013, beginning with individuals on a DLA fixed award who will need to renew their claim and those claimants who report a change of circumstances on their existing DLA claims.

At the same time, we intend to conduct a pathfinder trial reassessing individuals who would not, in the ordinary course of events, come up for reassessment. We expect the pathfinder to run for around three months to ensure the processes for identifying and contacting people and taking them through the claim processes are working satisfactorily. Allowing a small number of existing DLA claimants to advance through the reassessment process ahead of full national implementation will enable us to be sure that our approach to engaging these customers into the claims process is working effectively ahead of widening the selection. Also very relevant here is the independent review and report on the assessment that we are legislating for in Clause 87.

During Committee, the noble Lord, Lord Rix, laid an amendment seeking to increase the number of independent reviews carried out. Noble Lords will remember that I promised to take this matter away and consider it further, and I have done that. Our revised proposal is that we legislate for two biennial independent reviews within the first four years of the implementation of PIP. The first would report within two years, beginning with the date on which the first assessment regulations come into force, and the second within four years of that date. Although it is only two reviews formally in legislation, we commit to undertake a third if the second review demonstrates ongoing issues with the operation of the assessment which need to be addressed in this manner. That is a firm commitment from me and my ministerial colleagues.

In reality, in the way that we are structuring this, we are trialling it in any real sense; we are doing it on a gradual basis. If we do it in this way, we will get the assessment and wider benefit processes right; we will involve disabled people and we will learn from the earlier delivery of the benefit. We do not think, therefore, that the formal trial proposal in this amendment is necessary. However, if we do it that way, the House should know that it would push back the implementation of the benefit. Our estimate is that the loss will be £1.4 billion of savings over the reassessment window. Clearly, that has to be found somewhere else. I know that noble Lords opposite think that is funny.

[Lord McKenzie of Luton]

Could the noble Lord give us a bit more detail of that estimate? The figure of £1.4 billion seems to trip off the tongue as the cost of any amendment that we pursue.

[Lord Freud]

That is an assessment based on the delays that we anticipate from this amendment, which is actually similar to the previous amendment where I used the same figure. It would have the same effect of delaying the whole process. That is the Government’s position, having worked through the implications of the amendment.

I remind the House of where the Opposition have got to with their amendments. We estimate that as a result of the votes on amendments so far, over five years they have imposed £3.8 billion-worth of extra costs, and this amendment will take that figure to £5.2 billion.

Welfare Reform Bill

Lord McKenzie of Luton Excerpts

Tuesday 17th January 2012 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)]

My Lords—

[Lord McKenzie of Luton]

My Lords, I, too, shall be brief because, as the noble Baroness, Lady Thomas, has said, the Minister has flagged his acceptance of the amendments in this group.

The debate in Committee led by the noble Baroness, Lady Thomas, centred in particular on the importance of keeping a qualifying period for PIP at three months, but obviously the concept of increasing the prospective period from six to nine months to align PIP with the definition of “long-term disability” in the Equality Act has been helpful to the process. However, the arguments for a three-month qualifying period are strong, and it is commendable that the Government have accepted the case. We have not heard them today but those arguments concerned conditions of a long-term nature having a sudden onset, conditions which are not diagnosable immediately after the onset of symptoms, and conditions which have an immediate devastating impact.

I have just one question for the Minister on the required period condition. This has been touched on before but is not the subject of an amendment today. On the basis of what is before us as an amendment, to be eligible for PIP it has to be determined whether, as respects every time in the previous three months,

“it is likely that if the relevant ability had been assessed at that time that ability would have been determined to be limited or … severely limited by the person’s physical or mental condition”.

The issue is how this requirement is to be interpreted for those with fluctuating conditions. At a recent meeting to consider how things should work for those on the autistic spectrum, we were assured that, although the wording was a bit clumsy, it covered the situation. It would be helpful if the Minister could confirm that or, as we are at one on this issue, commit to tidying it up at Third Reading.

However, all in all, the Government are to be commended for doing the right thing on this, as indeed is the noble Baroness, Lady Thomas, for having led the charge and continued to press the matter.

[Lord Freud]

My Lords, I tried to rise to speak earlier because my name is added to this group of amendments tabled by my noble friend Lady Thomas, and I am very pleased that I have been able to support them. We have had a lot of responses from people whom we respect and whose advice we find very useful, including Macmillan and CLIC Sargent, and I thank them for the time that they have given.

When we looked at this issue in Committee, I think it was generally agreed that an overall 12-month required period condition was right, but there was a lot of concern that the six-month period in question here was too long. Bluntly, we were trying to balance two factors: payments being made sooner against the potential for more assessments to ensure that ongoing payments were correct. That is why we ended up with periods of six months plus six months. However, we have been listening to the arguments and have been persuaded that the balance should shift. There was a clear consensus that a three-month qualifying period and a nine-month prospective test offered the fairest solution, and that is why we are able to support the amendments.

On the point raise by the noble Lord, Lord McKenzie, I think it is easier if I write to him, as this is a fairly technical matter. On that basis I am very happy to support the amendment tabled by my noble friend.

--- Later in debate ---

[Baroness Wilkins]

My Lords, I, too, put my name to the amendment. I declare an interest as someone who was awarded mobility allowance for life and was then moved to DLA at its inception. I have continued to receive this past pension age. I strongly support the amendment, which would put in the Bill the assurance that awards of PIP will be retained after retirement age, as is the case with DLA. When the amendment was discussed in Grand Committee the Minister tried to sound reassuring, but unfortunately the Government are not trusted.

We know that all Governments prefer to use regulations, which give them more scope and power. However, to quote Sir Bert Massie, the chair of the much lamented Disability Rights Commission, the difference between now and 1992, when the DLA was introduced, is that this Government are playing with false cards. If the Government are sincere in their assurance that PIP will be retained after retirement age, why will they not behave transparently and place the commitment in the Bill? Clause 82 only grants a power. The amendment of the noble Lord, Lord Low, imposes a duty. There is a massive difference.

Sir Bert fears, as I do, that the Government are planning to use the payment of post-retirement PIP awards as part of the Dilnot package for social care. On the argument about cutting the DLA mobility component for people in residential care, they will discover what they regard as double provision, and PIP will be lost to pensioners. In his response in Grand Committee, the Minister almost said as much when he stated:

“By setting out these provisions in regulations we can ensure that the legislation can be adapted in response to any future changes in the social care system which might affect pensioners”.—[Official Report, 16/11/11; col. GC 305.]

Given the demands of responding to the Dilnot commission report, would your Lordships trust the Government not to use the flexibility of regulations to devote the entire PIP budget for over-retirement age to social care?

DLA is an essential contribution to so much more than our social needs. Throughout the passage of the Bill I have tried to convey the enormous complexity of disability and the very wide range of extra costs with which we are faced. DLA gives the lie to the false dichotomy that the Minister always draws between benefit recipients and taxpayers. My DLA has enabled me to be mobile and be employed. It has enabled me to be a taxpayer all my life. As I have aged, my mobility needs have become considerably more expensive. I could not have contemplated buying that “nice bit of kit”, as the policemen outside the Peers’ entrance term the considerably adapted car that I can drive from my electric chair, without the assurance that my DLA is for life. Future PIP recipients should have the same reassurance and I ask noble Lords to support the amendment.

[Lord McKenzie of Luton]

My Lords, I will speak briefly in support of the amendment. The case has been very clearly made. The amendment is seeking the assurance of something written in primary legislation rather than the comfort that was given that this could be dealt with in regulations.

Perhaps I may take the opportunity to clarify a part of the debate we had in Committee. The Minister said:

“Turning to the current rules, broadly speaking, current DLA provisions have a one-year linking rule. This allows individuals over 65 to renew an award within one year of their previous award without losing DLA entitlement. Similarly, we intend to allow a linking period for PIP. This will support those individuals who reach the upper age limit and have a break in their claim through temporary improvement, provided the individual makes a claim within a defined period and continues to fulfil the eligibility criteria for PIP”.

I understand all of that. The next sentence says:

“As with DLA, there will be restrictions on new and existing claims for those over the age of 65”.—[Official Report, 16/11/11; col. GC 305.]

Can the Minister expand on what particular restrictions on existing claims for those over the age of 65 he is intending to implement?

[Lord Freud]

My Lords, I should like to take the opportunity to set out our position in relation to people who are approaching 65 and over the age of 65 and, I hope, give a degree of reassurance as to what we are aiming to do and, if people could accept our firm stated intention, explain why that would be a better and more flexible way of proceeding. I hope that some of the things I said in Grand Committee and what was in our policy briefing document in May will have reassured the noble Baroness, Lady Wilkins, at least to some extent, although I am not absolutely confident of that, given the slightly questioning tenor of her remarks.

People in receipt of DLA who are aged 65 or over when PIP is introduced will not be reassessed for the new benefit from 2013. These reforms will initially be focused on people of working age. This will enable us to ensure that learning from the reassessment of working-age recipients is properly considered before any further changes are developed and implemented.

I understand that the purpose of this amendment is to ensure that financial support continues into pension age for individuals who may have had less opportunity to work and save during their working life due to their condition. I can reassure noble Lords that this is also our objective and can be achieved without amendment to the Bill, but instead through regulations, much as the detail for DLA pensioners is provided for in regulations. We intend to make regulations for the personal independence payment that will allow people who have reached the upper age limit to continue to receive it for as long as they continue to meet the entitlement conditions. Our priority is to support those individuals with established, long-term health conditions or impairments that would put them at a financial disadvantage over a long period. As we indicated in our entitlement thresholds and consultation document, we expect to consult formally on a range of issues to help inform the regulations. This is such an area and we expect to begin consultation in the spring.

It is also our intention that the rules for people over the age of 65 should be broadly similar to those that currently apply to DLA. For example, DLA provisions allow a one-year linking rule which lets those aged 65 or over renew an award within one year of their previous award expiring without losing DLA entitlement or having to satisfy a qualifying period. This provision is intended to allow for those on a fixed-term award to renew their award on a new claim or to reclaim where their condition previously improved and subsequently deteriorated.

I turn to the link question raised by the noble Lord, Lord McKenzie. Under DLA, claimants over the age of 65 cannot move up or down the mobility component rates or move to the lowest rate care component. In the main, these rules match up with attendance allowance and that is an example of the kind of restrictions currently in DLA, which we will look to and consult on maintaining in PIP. Our commitment is to maintain support for those individuals who have relied on DLA or PIP for their working lives into retirement. People who develop care needs during retirement as part of the natural ageing process, for example, and who are not receiving PIP, will be able to claim attendance allowance.

The effects of this amendment are important. It could allow an individual aged over 65 who had previously, at any point in the past, received PIP to make a new claim for the benefit. This could have the effect of allowing people over 65 to receive PIP if they have previously been awarded it, even if there was a very long break in the claim—a break of decades. We would not want that to be the case.

Under the powers we have in Clause 82, we can ensure that the regulations can be flexible to respond to future changes. The changes in the social care system were raised as an example by the noble Baroness, Lady Wilkins. Clearly, if there is a rebuild of the entire support system, that is one thing that we might want to take account of. It could, of course, go both ways: it might affect pensioners.

In terms of developing the rules and how we implement them, I would like to assure the House that we will continue to work closely with the PIP implementation development group to ensure that policy design and delivery in respect of people aged 65 and over are informed by disabled people and their representatives. We intend to consult fully on our proposals during the spring as part of that commitment to involve disabled people. Given these assurances on our approach, I urge the noble Lord to withdraw the amendment.

--- Later in debate ---

[Lord Freud]

My Lords, I am happy finally to place in the Bill the Government’s intention to continue to enable disabled people who live in care homes to be mobile. I am equally pleased to have the noble Lord, Lord McKenzie, joining me on this amendment.

The amendments in this group put our position beyond doubt by removing from the Bill the power to make regulations to stop payment of the mobility component of PIP to people who live in residential care homes and whose costs are borne from public funds.

As noble Lords will know, we examined the evidence base, sought contributions to the debate from many disabled people and disability groups, and considered in detail the excellent report produced by the noble Lord, Lord Low, which was published in November. We established, as did the noble Lord, Lord Low, that while there was some duplication, the overall picture meant that in order to access mobility provisions within a care home environment, which we have steadfastly said we are committed to protect, the fairest outcome was to retain payability of the mobility component in those settings.

I am pleased to be able today to act upon these findings and to introduce a new, separate clause for people undergoing treatment in hospitals or similar institutions. I hope that noble Lords will feel that this reflects the fact that we do listen—sometimes, especially when people shout very loud—and that we try to get things right in this area.

I can go through each provision in turn, but I hope that noble Lords will trust my assurance that the overall effect of the amendments is that the mobility component of PIP for people in care homes will remain on the same basis as it currently is for DLA, including for those in residential schools and colleges. I commend the amendments to the House and urge noble Lords not to press theirs.

[Lord McKenzie of Luton]

My Lords, as the Minister said, we have an amendment in this group that I do not propose to move as I accept it has been superseded by the Government’s formulation—this listening Government that we have on this issue.

It is to be welcomed that the Government have accepted the arguments that have been put forward over many months and from many quarters. As the Minister indicated, we should be particularly thankful to the noble Lord, Lord Low, for his leading on the independent—I would stress the importance of independent—review of personal mobility in state-funded residential care. The report does not just focus on the narrow issue of the availability of the mobility component of DLA—soon to be PIP—but on wider issues of the mobility needs of disabled people, the role of local authorities and care home providers, and the importance of mobility to disabled people’s rights. The clear conclusion in that review found no significant evidence of overlap in the support offered by the mobility complement of DLA and that offered by local authorities and providers. If the rights of disabled people are to be preserved, it is vital that DLA mobility and its successor under PIP are retained for people living in residential care. The report offered a very clear analysis, which I would suggest the Government, frankly, had no option but to accept. Perhaps we should leave unanswered the question of what the position today might have been if the initiative by Mencap and Leonard Cheshire had not been undertaken and the noble Lord, Lord Low, had not assembled such a knowledgeable team to produce this report.

We always give voice to the proposition that disabled people are the experts in their own affairs. It is just a pity that it took so long for their voices to be heard on this occasion, but we should welcome the fact that that has now happened.

[Lord Rix]

My Lords, as Mencap has just been mentioned, I would very much like, as president of Mencap, to thank the Minister and his colleagues for accepting this situation and the Low report. I congratulate my noble friend Lord Low on his splendid research into this problem. It is wonderful to hear the Government’s change of tack. I notice that the Minister mentioned hospitals, but I was busy chatting to the noble Baroness, Lady Hollins, at that moment. Did he mention children? I was not quite sure what the position was going to be regarding children—over 16 and under 16—in regard to this mobility component. However, apart from that, we are very satisfied in Mencap. I would like to thank, both personally and on behalf of Mencap, the Minister and his colleagues for this change of heart.

--- Later in debate ---

[Lord McKenzie of Luton]

My Lords, I simply say that some compelling and moving personal circumstances have been advanced in support of the amendment and I hope that the noble Lord will feel able to accept it, or a version of it.

[Lord Freud]

My Lords, I first want to put absolutely on the record that we are not talking about the constant assessment of everyone. That is simply not how it is going to work. To the extent that there is concern about people being dragged in to face assessors every year, that is simply not how it is going to work.

When we talk about having another assessment for some people who have deteriorating conditions, noble Lords have to remember that they might have started on the lower rate of PIP and that in practice the assessment will move them to the higher rate at that time. DLA is an understudied phenomenon. It was studied by the previous Government in 2004-05 and it was found that £630 million was overpaid. That was not as a result of fraud; it was just that people no longer fitted the rather easier criteria of DLA that were in place when they applied, although we do not know where they fitted when they did apply. Just as worrying was the finding in that year that £190 million was underpaid. We want to make sure that the money goes to people in the right way in both ways.

Jobseeker’s Allowance (Jobseeking and Work for Your Benefit) (Amendment and Revocation) Regulations 2012

Lord McKenzie of Luton Excerpts

Monday 16th January 2012 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)]

My Lords, I must start with the formalities: it is a requirement that I confirm for the Grand Committee that I consider that these provisions are compatible with the European Convention on Human Rights, and I am happy so to confirm.

The Department for Work and Pensions is fully committed to supporting the Government’s commitments to the rehabilitation of prison leavers. Our main aim in the cross-government work to reduce reoffending is to increase employment outcomes for ex-offenders and prison leavers. We will do this by using the work programme—the biggest single payment-by-results welfare-to-work programme that this country has ever seen—as the primary vehicle for help and support.

We recognise that offenders face significant barriers to employment. The Government believe that there is a strong social and economic case to provide additional employment support at the earliest point to individuals who leave prison without employment. Most prison leavers have much greater difficulty in finding and retaining work than unemployed people with no criminal conviction. This can be due to a number of factors, including: employer prejudice against people with a criminal conviction; problems with accommodation; high prevalence of health conditions—especially mental health; motivation; and low educational and skills achievements. These factors all contribute to high rates of unemployment among prison leavers, which in turn increases social exclusion and has a detrimental effect on other issues, including reoffending levels and long-term benefit dependency.

That is why the Deputy Prime Minister announced on 16 August last year the Government’s intention to bring forward the work programme entry point for prison leavers to immediately on release from custody for those claiming jobseeker’s allowance. Currently, offenders are mandated on to the work programme after nine or 12 months on jobseeker’s allowance, depending on their age, although they are able to volunteer for the programme early—after three months. From March, all prison leavers who make a claim for jobseeker’s allowance can be mandated on to the work programme immediately on release from prison.

The regulation changes will provide the legal framework to allow prison leavers to be mandated on to the work programme immediately on release. This will give them the appropriate support at the point that they need it most, by taking those referred to the work programme out of the coverage of the “treated as available and actively seeking employment” provisions in the Jobseeker’s Allowance Regulations 1996. The “treated as” provisions excuse the prison leaver from having to be available for or actively seeking work for the first seven days without this impacting on the prison leaver’s eligibility for jobseeker’s allowance.

Under current legislation, the earliest that prison leavers can be mandated to participate in the work programme is the eighth day after leaving custody. During the first seven days, when the prison leaver is treated as available and actively seeking work, the prison leaver cannot be attached to the work programme. Regulation 2 removes this seven-day period for those who have been given notice to participate in the work programme. The Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 provide the legislative framework necessary to mandate JSA claimants to participate in the work programme. Those who have not been given notice to participate in the work programme will still be provided with a seven-day period under the Jobseeker’s Allowance Regulations 1996. As an example, those prison leavers who are aged 16 and 17 and claim jobseeker’s allowance under special circumstances will not be mandated on to the work programme immediately on release.

To ensure that prison leavers who are attached to the work programme will still benefit from the seven-day period, where they are treated as being available and actively seeking employment, Regulation 3 of these draft regulations amends Regulation 5A of the Jobseeker’s Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011. This means that prison leavers will benefit from the support provided by the work programme provided immediately on release, but will still be excused from having to be available for or actively seeking work for the first seven days from release without this affecting their eligibility for jobseeker’s allowance. We fully recognise that prison leavers will need to settle back into the community and re-establish their basic needs, including accommodation.

I would expect that during the first week after leaving prison, the primary focus of the work programme provider will be to support those activities that will provide a secure base from which later work preparation and job search activities can ensue. This would not, however, stop the work programme provider and the prison leaver working directly on employment issues straightaway if they both thought it appropriate.

I am happy to say that, in order to facilitate this change and mandate prison leavers on to the work programme, we are proposing that the Jobcentre Plus adviser would take the claim for jobseeker’s allowance in prison to start entitlement immediately on release, allowing mandatory referral to the work programme. Jobcentre Plus will only discuss claims for jobseeker’s allowance with prisoners on a voluntary basis, as at present. There will be no mandatory interviews with prisoners.

Where a prisoner opts not to make a jobseeker’s allowance claim while in prison and subsequently turns up at the job centre office within 13 weeks of leaving prison, then they will be mandated to the work programme from their date of claim. This change will essentially bring forward the activity that Jobcentre Plus currently conducts at the new jobseeker’s interview following release. The claim will be put in hand to be triggered immediately on release. This will help to contribute to putting prison leavers on to a sounder financial footing, enabling them to resettle more quickly, concentrate on finding a job and reduce their chances of reoffending.

In introducing this additional support for prison leavers through the work programme, we are working closely with other government departments, in particular the Ministry of Justice and its executive agency, the National Offender Management Service. We also have the support of the Scottish Prison Service. The support and co-operation of these partner organisations will be crucial in our efforts to implement this help and support our Jobcentre staff working in prisons.

To this end, we currently have around 140 Jobcentre Plus advisers in all prisons that require their service. Their work focuses on prisoners’ needs, both upon induction and in pre-release from prison. Jobcentre Plus advisers work alongside the Prison Service and other organisations providing support to offenders in prison. Taking jobseeker’s allowance claims from prison leavers who voluntarily opt to obtain the benefit will be an extension of their current work in the prison.

I would like to cover briefly the other element of these regulatory changes. The previous administration introduced the Jobseeker’s Allowance (Work for Your Benefit Pilot Scheme) Regulations 2010 to provide a legal framework for a pilot in certain Jobcentre Plus districts. These regulations allowed the Secretary of State to select claimants in specified pilot areas for participation in the work-for-your-benefit scheme if they met certain conditions. They also provided for the loss or reduction of benefit if persons selected failed to participate without good cause. The regulations came into force on 22 November 2010 and are due to lapse on 21 November 2013. The Minister for Employment’s Statement to the Commons on 19 November 2010, which I laid before this House on 22 November 2010, confirmed that this scheme would not go ahead. As a result of this decision, no jobseeker’s allowance claimants were selected for participation in the scheme. The Minister for Employment had previously made it clear that the work-for-your-benefit pilot scheme would not proceed and that the regulations for the scheme would be revoked when the opportunity arose. Regulation 4 revokes the Jobseeker’s Allowance (Work for Your Benefit Pilot Scheme) Regulations 2010. I beg to move.

[Lord McKenzie of Luton]

My Lords, I thank the Minister for his explanation of this order, which has our support. Enabling prison leavers to be referred to the work programme immediately upon release, rather than at the earliest after seven days, is to be welcomed. As the Explanatory Memorandum recites, those in employment are much less likely to reoffend, and the importance of this first week is acknowledged even though, as the Minister said, the focus will be on reintegration and securing a base rather than work preparation and job search. From the Explanatory Memorandum, it also appears that the JSA claim process will be conducted in prison so that entitlement can begin on release. Again, the Minister covered that. It is proposed to make use of the provisions of what I think is now Clause 96(2)(1) of the Welfare Reform Bill. What will the position be in the interim before the Clause 96 provisions can be brought into effect? What payment will be due to individuals between release and the otherwise first payment date?

The Minister might be relieved to know that I do not propose to reiterate the detailed inquiry about the work programme which was taken up in the other place. However, when is it expected that the Government will be releasing comprehensive data on its operation, about referral levels, categories, outcomes, cost et cetera? It would be helpful if the Minister would say a little more about the process of these additional referral opportunities. Will this become the main approach for those leaving prison? I note from the Explanatory Memorandum and the Minister’s confirmation that 16 and 17 year-olds will not be referred by this process. Will he say a little more about why? How many prison leavers have been referred to the work programme at day eight to date—from what the Minister said, it may be that the answer is nil—and certainly within 13 weeks of their claim? We understand that there is going to be a new category in the work programme. I am not sure whether it is just for those day one referrals rather than perhaps day eight referrals, week 13 referrals or any others.

In particular, will the Minister confirm that this will not be an automatic process that will squeeze out other programmes? I am sure that, if he were in his place, the noble Lord, Lord Ramsbotham, would talk about some of the programmes of which he is aware. I certainly remember sessions where we had presentations—I think that the Forestry Commission was engaged in employing people even before release from prison. These were imaginative programmes that really made a difference to people, and I would not wish to see these opportunities trump them and squeeze them out.

Subject to any points arising from those questions, we support the order and wish the Government well with this initiative.

[Lord Kirkwood of Kirkhope]

I add to the welcome that the noble Lord, Lord McKenzie, has rightly given to these regulations.

I am particularly interested in this aspect of the work programme because I am a non-executive director of the Wise Group in Glasgow, which has for some years been running a programme called “Roots Out of Prison” that has been extraordinarily successful. The Minister rightly pointed to the fact that other aspects of the public service and the voluntary sector need to help if these projects and this work are to be successful. The Scottish Prison Service was exemplary in the way that it encouraged Wise Group employees, who were reformed former convicts who had been trained by the Wise Group, who went into Barlinnie prison in the first iteration of the project. Inside the prison, those Wise Group employees, working on a voluntary basis, engaged in capturing the interest of some people who were about to be released. I was not aware that the jobseeker’s allowance regulations made that first seven-day period a bit of a difficulty—I do not know how they got round that—but all that I can say is that it was a splendid project that worked to everybody’s benefit.

As the Minister or someone else said, the first seven days are crucial. The people who are waiting to meet disaffected offenders, particularly young offenders who may have completed their first sentence, when they come out of the door at 7 on a Thursday morning, are usually the drug dealers. The drug dealers know that that is when the prisoners are let out, and they say, “Come with me to the pub and I’ll help you”. Then of course the prison leaver is back into a cycle of recidivism. Somebody should be there to welcome the prison leaver and take them somewhere, or talk to them before they come out about their housing benefit and getting accommodation. Local authorities could help some of these ex-convicts to find places where they can immediately go to live. Then the whole system would be more positively pointed at people who are in a very vulnerable set of circumstances.

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[Lord Freud]

Well my Lords, it is very nice to have that support, and I am looking forward to lots more of it. There were a range of questions and I will try to deal with as many as I can. Where I cannot, I will of course write.

Picking up points from the noble Lord, Lord McKenzie, I think that he catches me, as he always does, on a technicality around Clause 96. We were looking to use Clause 96 in this way but, having looked at it again in legal terms, we have concluded that it is not necessary to rely on that particular amendment and that this regulation is adequate. Therefore, we do not have the timetabling issues that he was concerned about.

I have to disappoint on the numbers. We simply do not have the information on how many prisoners have been referred to the work programme to date. We will start to collect that information, clearly, when this programme comes into effect.

On the question of when more general data on the work programme are coming out, we are planning now to provide a level of information on the attachments and referrals to the work programme next month, although because of the back-ended way that payments are made, the figures on actual job outcomes will probably not come out until the autumn.

The reason that 16 and 17 year-olds are not referred is that the work programme is available to those from age 18 and over—that is just how it is structured. One of the things that the noble Lord, Lord Kirkwood, was urging was to look at ways of using this in an expanded way, as it is only for JSA whereas there is also ESA for youngsters. Clearly, if this starts to work I will certainly be looking very closely at the other areas where we can expand it.

On the question of squeezing out other programmes, we would expect the work programme providers to work with other local initiatives, especially when they have established a track record. The noble Lord, Lord Kirkwood, talked about the experience of the Wise Group, which would clearly be very valuable. The Ministry of Justice has a range of pilots going on at the moment, experimenting in this area using social impact bonds—in Peterborough there is a rehabilitation payment and in Doncaster there is a justice reinvestment pilot. There are also community pilots. There is an enormous level of activity going on in this area, for the obvious reason that it is one where we need to make a lot of improvements.

I can confirm that the programme is entirely voluntary and that those who want to claim—both those who claim in prison and those who claim up to 13 weeks after release—are all in that same group of payment by results. This is a new category and we are looking to negotiate the terms and to get that new category with the work programme providers. The total amount of earnings that providers can make for a successful placement is £5,600 for an extended period. We all understand the structure of the work programme.

I think that I have covered all of the questions—

[Lord McKenzie of Luton]

Indeed, the Minister has, and that has been very helpful, but I want to clarify a couple of points. I think he said that the programme is voluntary. Is it voluntary whether or not somebody claims JSA? It would be voluntary because if there are other programmes associated with prisons going on, such as the one that the noble Lord, Lord Kirkwood, instanced, the referrals or the route to go via the work programme would not preclude those continuing. Where does the decision-making lie in respect of that? Is it for the individual as to which programme they attach themselves to or seek to get the benefit of, or is it the decision-makers at Jobcentre Plus—the providers? How does that all work? Although this clearly has great potential, it would be a pity if it squeezed out those good examples that already exist.

[Lord Freud]

My Lords, to be blunt, it is voluntary to make the claim for JSA in prison, then once you do that as a prisoner there is immediate mandation. To the extent that voluntary charitable endeavours have been doing this with their own funding, this will displace some of that. However, I think that those who are experienced at this work will find a way to continue and to start earning money. This is stopping being a charitable endeavour now and becoming something that the state is willing to pay for, so I expect some readjustment of who does what. Clearly, there always will be that, but I would expect people who are experienced and have a track record in this area to be very well placed to continue to do it.

The transition from prison to the community is a key transition point in the journey from crime to resettlement. We have a much too large benefits bill in this country and prison leavers are significantly more likely than the average person to claim those benefits, so it is essential to put in the work and support required to get them back into the workplace so that they can start to pay their own way in society. The figures suggest that those individuals who are in employment are between one-third and one-half less likely to reoffend, so we could make a real difference by providing help not just to those individuals but also to society as a whole.

[Lord McKenzie of Luton]

I started off wholeheartedly supporting this but now my support is slightly qualified, as, I expect, is the support of the noble Lord, Lord Kirkwood, in relation to the Minister's response on the issue of mandation. I can see that it is voluntary whether someone claims JSA or not, but if you have no other source of income, that is not a particularly helpful designation. Once you do, you have the inevitable route in the work programme and there may be a chance of existing providers being wrapped up in that but there is no certainty. That seems to be a great pity if it risks destroying the experience of good programmes that are out there. I accept that that is not universal and I accept that they may be driven in large measure by charitable organisations but there is real work involved. I enter my qualification without necessarily withdrawing support for the regulations.

[Lord Freud]

There is a genuine dilemma when you go from a cottage industry, where there are individual examples of really excellent work, to trying to provide a universal, lock-down service to everyone in the category. I do not want to sugar-coat this—it is very easy to over-sugar-coat—as I think there are going to be changes in the provision here, and there may be some groups that have been in very good individual work that does not translate into the universal service that we are aiming for. I think there is every opportunity and every incentive for those who have been affected to remain in this part of the provision. Rather than worrying about individual groups and their position, it is much more important to deal with what is a running sore and a long-term tragedy of not looking after these people properly. That is what this is doing and I hope that most of the good provision is wrapped in, but clearly that cannot be guaranteed. I think this is vital and I hope that it is the smallest of cavils from the noble Lord, Lord McKenzie, but you cannot change things without changing things—tautology is very useful sometimes.

With those words, I commend the regulations to the Committee.

Welfare Reform Bill

Lord McKenzie of Luton Excerpts

Wednesday 11th January 2012 Lords Chamber

[Baroness Morgan of Drefelin]

I just want to thank the Minister for bringing forward Amendment 43 and the other government amendments in this group, and for listening to the debates in Committee. I do not want to detain the House in any way—I know we are engaged in several critical debates this afternoon—but the noble Baroness, Lady Meacher, has explained very eloquently the challenges that the Government have in addressing the thorny, knotty and difficult problems of people facing terminal and life-shortening illness. I do not want to say more than that because her points have been made so clearly.

[Lord McKenzie of Luton]

My Lords, I start by also thanking the Minister for Amendment 43 and wishing him a happy new year. I am sure it will become happier when we get into February. That is the case for several of us. Perhaps I can comment first on some of the other amendments to which the noble Lord referred. I understand that Amendments 33 and 34 are consequential. The fact that they include references to provisions that cover 365 days or the clock for counting those days already being under way does not imply our acceptance of them. They are the subject of subsequent amendments that we are about to come to. Similarly, as we have heard, Amendments 37, 39, 40 and 41 are the formulation to confirm the intention that the limit should apply to contributory claims under the youth condition. Again, as will be clear, we do not support the 365-day limit or the future denial of claims under the third condition, and we will address this by amendments in the next group. Therefore, our not challenging these amendments should not be taken as accepting this as the final position; likewise in relation to Amendments 63, 64, 65, 66 and 67.

Amendment 43, tabled by the Minister, obviates the need for Amendment 42. It covers the same point and, as he said, goes further in that there is no time limit. This is to be welcomed. This enables someone to reconnect with contributory ESA after time-limiting should their condition deteriorate and they become eligible for the support group. It would appear that this applies equally to those with an existing youth condition claim and those accessing contributory ESA via the first and second national insurance contributions. Perhaps the Minister would just confirm that. It would appear that there is no time-limiting factor—I think that he confirmed this—so the gap between the time limiting of the contributory allowance and arrival in the support group could be five or 10 years or, in theory, even longer. I touch on this particularly because I am bound to say that this is not something to which the Minister warmed in Committee. On 8 November, at col. 33 of Hansard, he stated in relation to Amendment 71P:

“However, this could mean benefits being reinstated 10 or more years after the claimant last worked, which is not reasonable”. —[Official Report, 8/11/11; col. GC 33.]

Further, he stated that,

“people in the WRAG who have gone through their time-limited period do not then have a right to go into the support group on a contributory basis”.—[Official Report, 8/11/11; col. GC 36.]

I do not wish to be churlish about this but that is why we included the five-year limitation in Amendment 42, which sought to meet the Government at least part way. However, the Government are to be congratulated on Amendment 43, which deals with the disconnect from the national insurance contributions and also addresses the concerns powerfully expressed in Committee about people with deteriorating conditions who are initially placed in the WRAG. My noble friend Lady Morgan of Drefelin spoke about people with Parkinson’s disease, motor neurone disease and some forms of cancer. The Government will fulfil their stated intent that the time limiting of contributory ESA will not affect those in the support group.

However, as ever, I have a couple of questions. Amendment 43 states that the employment and support allowance entitlement,

“is to be regarded as a contributory allowance for the purposes of this Part”.

Why is “regarded as” used rather than “is”? Is it or is it not a contributory allowance? The requirement is that the person remains assessed as having limited capability for work. How is this to work in practice in circumstances where entitlement to the contributory allowance has lapsed and income or capital levels preclude entitlement to income-related ESA? Does it require the individual to be subject to the crediting-only arrangements? Would a claimant commitment still have to be in place? If somebody’s prognosis of limited capability for work has lapsed but there has been no reassessment because nothing is due, how does this affect the position in practice? Where someone’s reassessment has initially led to a fit-for-work designation but this has been overturned on a reconsideration or appeal, will the claimant be treated as being continuously in the WRAG and remain entitled to the benefit conferred by the government amendment? The noble Lord’s letter of 8 January, which I received yesterday, suggests that around 4,000 people will benefit from this measure by 2016-17. This may be only a small proportion of those damaged by the general time limiting. Nevertheless, I stress that it is welcome.

Amendment 42A, spoken to by the noble Baroness, Lady Meacher, and supported by my noble friend Lady Morgan and the noble Baroness, Lady Finlay, raises an extremely important point about individuals with life-threatening diseases where there is evidence that their diseases are uncontrollable or uncontrolled by a recognised therapeutic procedure. It requires them to be treated as being in the support group to obtain the benefit of the easements in the Government’s legislation. I would be interested to know how often such individuals would not be assessed as being in that group anyway. I think that we heard some examples from the noble Baroness, Lady Meacher. I await the noble Lord’s reply but I hope that he can give her a sympathetic response to this important issue.

[Lord Freud]

My Lords, picking up the point of the noble Lord, Lord McKenzie, about the discrepancy between Amendments 42 and 43, sometimes when a powerful argument is made in Committee, it succeeds even more than do the proponents of that argument. In this case we went back, thought about the measure and said, “If we are going to do it, let us do it properly”. That is why the measure is indefinite and not for five years. The noble Lord asked whether Section 1B on further entitlement after time-limiting covered contributory ESA under the first and second contribution conditions and the ESA youth awards. The answer is yes

Let me turn to Amendment 42A. I very much understand noble Lords’ concerns on this, but the amendment would not achieve the stated aims of placing in the support group individuals with conditions that reduce life expectancy to two or three years. Substantial provision is already available to ensure that individuals with life-limiting diseases are provided with appropriate support. The amendment seeks to ensure that individuals with uncontrollable diseases who do not meet the support group criteria of the WCA, set out in regulations, are treated as having limited capability for work-related activity. Under the current system, individuals who meet this provision and are treated only as having limited capability for work will have a condition that does not significantly limit their functional ability such that it would be reasonable to expect them to undertake work-related activity. However, anyone who has an uncontrollable condition may still meet the current support group criteria if, as a result of their condition, there would be a substantial risk to their health if they were held to be capable of work-related activity. A large number of protections are therefore built in.

Perhaps I may provide an example of how that might work—and does work. Consider an individual with extremely severe uncontrolled hypertension, who has little or no symptoms or functional impairment. This individual will not meet the test of limited capability for work-related activity necessary to go into the support group, or even the test of limited capability for work to go into the WRAG. As a result of their condition, work-related activity is likely to pose a substantial risk to their health.

--- Later in debate ---

[Baroness Howe of Idlicote]

My Lords, those of us who sat through the entire Committee stage and have listened to and contributed to these arguments are now hearing it all again. We are hearing the horrific details about the suffering of children and their families and carers, and indeed of grandparents who are often involved in the care needs of these children and young students. All this must help to persuade the Minister, who we know has tried his very best in a number of respects, and has succeeded in a number of areas in which we had considerable concerns. In this case, however, with the numbers so small and the need to look elsewhere to make savings if that is necessary, why should we continue to penalise this group? Surely we can get around the European inhibition confronting us, and we have even had suggestions about that. Some brilliant speeches have been made today and I hope that they have had the desired effect.

[Lord McKenzie of Luton]

My Lords, I speak in support of Amendments 45 and 46. As the noble Baroness, Lady Howe, has just said, we have heard very powerful presentations by my noble friend Lady Lister, the noble Lord, Lord Patel, the noble Earl, Lord Listowel, the noble Baroness, Lady Finlay, as well as from the noble Baroness herself. I do not plan to repeat all the key issues associated with why I support these amendments. We have gone over them in Committee and we have heard them again today.

Society imposes significant challenges on young disabled people, especially so far as employment is concerned. These challenges will be particularly acute in the next few years as unemployment soars, particularly youth unemployment, which is now more than 1 million. Given the determination to place a time limit—we have yet to settle whether it should be one or two years—on contributory ESA for those in the WRAG, the abolition of the youth condition seems particularly spiteful.

The amendment of the noble Earl, Lord Listowel, would preserve the third condition, but only in circumstances where the claimant was and remained in the support group, thus focusing the support on those with the highest needs. The amendment would not appear to add any further benefits to existing claimants who qualify for ESA as a result of the third condition, because that is now covered by the government amendment. However, it would preserve the third condition for new claimants who fell within the support group. As such, I suggest that it is absolutely consistent with the Government’s Amendment 43, which was so widely praised earlier. I would hope that it was readily acceptable.

Just to be clear: the effect of government Amendment 43 is to provide among other things for those with an existing claim which relies on the third condition, the youth condition, to remain entitled after time- limiting if they have moved into the support group. Amendment 46 would allow the third contribution condition still to be applicable for new claimants but only where they would go directly into the support group. So there is a parallel in enabling young people with the most severe needs, existing and new claimants, to make use of the third condition. It is unlikely to have any significant cost, but doubtless the Minister will advise on that.

The letter sent by the Minister to the Cross Benches, and perhaps more widely, states that a “recent” European Court of Justice ruling limited the circumstances. How recent is “recent”? I do not believe that we debated or touched on this issue in Committee—if I am wrong, the Minister again will correct me. The letter goes on to say that the judgment further weakens the ESA youth provision, making it potentially much more widely available than intended. Of course, none of us would support benefit shopping if that is what is behind the concerns felt and we would work with the Government to try to make sure that it did not recur and was stopped, but until we have a much clearer idea of what is involved here, it would seem wrong to throw out now, on the basis of this potential issue, the prospects before us in the Bill to deal with the third condition and people entering the support group. If we do that now on the basis of the judgment, we close it off because we are coming to the end of the primary legislation.

At the very least, I hope that the Minister will be able to give a clear assurance to the House today that there will be an opportunity to come back to this issue at Third Reading and for us to have more detail, and that he will facilitate that. I would urge him also, because it would be consistent with that, not to press his Amendment 45A, because it would cut off the opportunity for people to make use of the youth condition for employment and support allowance. If noble Lords who have tabled these amendments are going to withhold pressing them on the basis that this issue requires further input, I hope that the Minister will undertake to do the same when he responds.

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[Lord Freud]

My Lords, we have had a pretty good Socratic debate on the welfare Bill for some time. I hope that I can get over to noble Lords that the move from an automatic payment system, which is what we have for these youngsters, to one based on their income needs will pay them effectively the same amount depending on the position of their disability, will cover 90 per cent of the same people and will leave out the last 10 per cent who have their own means of one kind or another. That is the solution that works best in terms of the European legislation.

[Lord McKenzie of Luton]

Before the Minister sits down, is the ruling in question a concern only in relation to the youth condition that we are discussing today, or does it have a wider implication? If the latter, how are the Government proposing to address that?

[Lord Freud]

My Lords, I am being dragged a long way away from my brief. This is a widespread concern that runs to benefit tourism. We are currently challenging the Commission in the Court on one of its findings and trying to build a constituency with other European countries that are also enormously concerned at the implications of this. As I say, though, the principles are that these automatic payments leave us far more vulnerable than income support in this area.

I know that noble Lords are listening very hard to this, because it is an important concern that we all have. I hope that I have been as clear as I possibly could have been on this issue. It is a moving target and changing all the time. It is not settled at all, so I cannot lay it out absolutely—I can talk only about the risks involved.

[Lord McKenzie of Luton]

I think that we all understand that, but the Minister is praying this EU ruling in aid of his desire to stop the youth condition continuing in future. He has already said that that ruling has much wider implications, and that there will be a wider need to look at how it can be fully addressed. In those circumstances, is it not unfair of him simply to target this particular benefit and say, “This can be dealt with by stopping it”, rather than addressing a wider solution in due course?

[Lord Freud]

My Lords, not really. This is a prime area in which we have automaticity without any payment system. This is one of the areas where we are very vulnerable so it makes enormous sense to look at it now and as it comes up. Therefore, I would not agree with that point. Shall I rattle along?

Amendment 46 would create considerable and unwanted uncertainty for claimants and operational difficulties for the department. A claimant would need to claim ESA and go through the assessment phase without any entitlement to ESA at all until the question of limited capability for work-related activity was determined at their WCA. This is because, under Amendment 46, only claimants who were found to have limited capability for work-related activity at the end of the assessment phase would be entitled to ESA on the grounds of youth. As I have already said, the amendment would save rather less—£17 million until 2016-17. The discrepancy is in the SAR, which is covered by a very similar amendment, to pick up the point of the noble Baroness, Lady Lister.

I confirm that the Government see Amendment 46 as linked to Amendment 36A, but none of the amendments in this group is consequential on any other. We would expect the House to make a decision on each individually. In due course I will move the amendment in my name, Amendment 45A, and I urge noble Lords not to press theirs.

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[Lord May of Oxford]

My Lords, I suspect that others might share my feeling that in some of the last exchanges the discussion has taken on a curious additional aspect. The exchange about whether whatever we do will ultimately be nullified by the Parliament Act speaks to me not as an argument for doing one thing or another but in support of the distinctive character of this Chamber. Particularly from the Cross Benches, the Chamber brings to debates that in the lower House would be basically political in nature a degree of expertise and knowledge of the impact on the ground of the things that we do. That is often missing, particularly in the upper chambers of parliaments in other countries with which I am familiar. I shall mention the acquaintance with uncomfortable facts, and again we have here an echo of what we heard a moment ago.

I have every sympathy for the Minister, who has quite properly to tackle questions of fiscal responsibility. At the same time, powerful points are being made about individuals and how this is going to play out in the system by people who really know it. That is something distinctive which we add to the debate, and I hope that it is taken into account when things go back to the Commons.

[Lord McKenzie of Luton]

My Lords, we support each of the amendments tabled in the name of the noble Lord, Lord Patel. As we have heard, the first would amend the Bill’s 365-day limit on the contributory employment and support allowance and proposes to replace that with an order-making power for setting a limit, but with the proviso that it should be not less than two years. The proposal that any limit should be set by order opens up the opportunity, sadly missed in the Government’s formulation, for any time limit to be evidence based. The 365-day limit currently in the Bill is supported by scant evidence, apart from some references to “international practice”, which did not bear scrutiny in Committee.

Welfare Reform Bill

Lord McKenzie of Luton Excerpts

Wednesday 11th January 2012 Lords Chamber

Moved by

[Lord McKenzie of Luton]

40A: Clause 51, page 37, line 13, at end insert—
“(d) does not include any days in which a claim in respect to ESA is in the assessment phase.”

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[Lord McKenzie of Luton]

My Lords, I shall speak also to the other amendment in our name in this group. Perhaps more than any other component of these changes, the inclusion of the assessment period in the tally of days which count to limit contributory allowance serves to underline that this is fundamentally about budget cuts. The assessment phase of an ESA claim normally ends 13 weeks after the beginning of an entitlement. It is the period during which DWP gathers relevant information about a claim to determine whether a person has limited capability to work or limited capability for work-related activity. While the assessment is under way, there is no entitlement to an additional component. Indeed, it is the additional component which is supposed to reflect the additional needs of those who are not job ready. If the assessment determines that a claimant should be treated as having limited capability for work or work-related activity, the relevant additional component will be backdated to the end of the 13-week period, albeit that the assessment period may have been longer. During the 13-week period, the individual is entitled to only the contributory ESA rate equivalent to the income support JSA basic personal allowance rate. This is the same rate as the contributory JSA rate. By including in the 365-day period the 13-week assessment phase with no additional component, the Government are denying the receipt of 13 weeks of the additional component at the end of the period. This is demonstrably unfair.

We will doubtless be reminded of the cost implications which are, I think, £20 million a year after 2012-13 and £115 million for that year, the accumulated effect of those hitting at the start of the system. The effect of what the Government are proposing is that the additional component receivable by those entitled to contributory ESA in the WRAG will be available for only nine months, not 12 months. This is an example of where somebody has looked at every conceivable means of clawing back moneys from sick and disabled people. The benefit to government is said to be £100 million in a year, but looked at another way, this is an additional £100 million in a year taken from the pockets of the disadvantaged.

Amendment 41A addresses the position of those with fluctuating conditions who might move between the WRAG and the support group. Fluctuating conditions have been a strong feature of our debates on this Bill and on previous welfare reform measures. Concerns have been expressed about how work capability assessment operates for those with such conditions, whether there is sufficient training for DWP staff and providers and whether there is appropriate expertise which can be brought to bear to make sure that the system works as it should for people with fluctuating conditions. This brings with it the prospect of individuals potentially moving between the WRAG and the support group when reassessment arises.

Movements into the support group have been protected by the government amendment, and for so long as somebody is in the WRAG or the support group movements into the latter would not be denied contributory ESA, but periods in the WRAG are accumulated for the purposes of the time restriction. The problem this brings is as follows: consider somebody with cancer or another fluctuating condition who has spent, say, 11 months in the WRAG, has moved to the support group for a period and whose condition subsequently improves so they move back into the WRAG on a reassessment. If the clock does not then start again, they are given one month to prepare themselves for the loss of contributory benefit and to seek to re-enter the workplace. This problem would be made worse if there was an extensive period in the support group because of the greater disconnect with prior work-related activity. It is submitted that the amendment is a narrow and entirely reasonable proposition. The Minister may have figures about how many people it might affect, but it is suggested that it is unlikely to be many.

Amendment 41A, which has been tabled by the noble Lord, Lord Patel, precludes the starting of the time-period limitation for contributory ESA until the relevant provisions of the Bill enter into force. It has our support as it stands. As we discussed earlier, the clock has already started. When this legislation enters into force—the earliest date being April this year—some 100,000 people will lose their contributory ESA overnight, and for some that will be as much as £94 a week. Some may have been receiving it for the bare 365 days yet have paid their national insurance contributions for decades. We await further comments from the noble Lord, Lord Patel, but on any reasonable analysis, this is retrospective legislation and should be opposed. If there is to be time limiting of contributory ESA, in the normal course of events one would expect it to operate for claims after the introduction of the legislation. The Government are applying it to existing claims. Worse, they are counting days for which the allowance has already been received. Letters of notification have served only to cause confusion and dismay. Just imagine the consternation that would be caused by having a letter drop on the doormat telling you that in six months’ time it is likely that you will lose as much as £94 a week of your income—overnight.

In their understandable need to address the deficit, which we acknowledge, I believe the Government have lost all perspective and all sense of fairness. They have been thrashing around in all directions to grab back money on the flimsiest of propositions. Frankly, they should be ashamed of themselves.

[Lord Kirkwood of Kirkhope]

My Lords, I want to make a brief contribution to this debate because we have had a busy day and I think we all want to go away and reflect on what some of the earlier important amendments and votes mean for the rest of the Bill.

As I was preparing for tonight’s consideration of the Bill, I thought that Amendment 40A had some real potential to try to keep some channels open to the department. We have had some very powerful speeches and some significant decisions taken by the House. For myself, I want to go away and read all of those carefully. If we were looking for a way of trying to meet some of the obvious concerns that have been expressed in this debate, both internally and externally, this amendment suggests that there might be a possibility of getting something that can stand the test of time and that does not destroy the tight financial framework within which the Minister is seeking to operate. I know that he cannot on a whim say, “Yes, this is something that is possible for me to go away and look at”, but I think this is potentially realistic.

There are a number of reasons for supporting it, not just because it is realistic and meets some of the concerns but because it wins some extra time for everyone. The extra three months would be of significant advantage to the claimants concerned. My noble friend Lady Thomas made an important point earlier when she said that Harrington has a great deal of potential. I do not think that has been properly reflected in any of this evening’s discussions. The Government have set out their stall very robustly about the five-year set of annual reviews. I am well pleased, and I think everyone else is, about the progress that Professor Malcolm Harrington is making. Perhaps he should be invited to consider some of these things, including what might be done around the assessment phase. All I am saying is that I think there is some potential here for getting a compromise that might be winnable in terms of the financial constraints and might keep the channels open through the rest of the proceedings of this Bill—we might be able to come back to it at Third Reading.

In the balance of what else has happened today, this might seem nugatory or irrelevant, but I do not take that view. I think there is a mechanism here that is sensible and that may be doable. It will not be easy and there cannot be any guarantees, but I would really counsel my noble friend the Minister—who I know is actively concerned about all of this and is trying to find a way through that meets his financial framework as well as the concerns that have been expressed so powerfully by colleagues—to give this very careful consideration. The hour is not great but the House might be well advised to think carefully about this after the Minister has responded. I feel quite strongly that Amendment 40A may be worth considering voting on if we cannot get a response from the Minister that meets some of the concerns that have been expressed this evening.

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[Lord Freud]

My Lords, it was a reasonably well publicised announcement by the Chancellor. There was no formal process of warning afterwards. That process began, as my noble friend points out, in September. How much warning people had is an issue, but the essential fact is that we are redefining the terms for entitlement to ESA. That happens quite a lot. Examples of future changes to entitlement include, among others, changing the descriptors to the work capability assessment.

I understand noble Lords having concerns about the fairness of the measure. Again, fairness is a matter of achieving a balance in our policy, so that as many claimants as possible who are in the WRAG are entitled to ESA for the same period.

The noble Lord, Lord McKenzie, asked for figures. We expect that, by April 2012, around 100,000 people will have been receiving contributory ESA and been members of the WRAG for more than 12 months. If the amendment were accepted, we would have another substantial decrease in our savings forecast and a real problem.

Amendment 41A would enable claimants to start a fresh 365-day period if they moved from the support group back to the WRAG—I am not sure whether we are now talking about 365 days or 730 days, so let us leave that on one side for a minute. In practice, for those claimants moving between the two groups regularly—it is funny how, when things are encouraged financially, regularity seems to increase—the amendment would be likely to mean that they would be able to remain on contributory ESA indefinitely.

We have always made it clear that, when addressing claimants in the WRAG, our aim is for as many people as possible to receive contributory ESA for the same period. This will be a period of 365 days on our original formulation and at least 730 days on the basis of the amendment that passed. Restarting that period each time a claimant moved from the support group to the WRAG would lead to inconsistent periods on benefit for claimants.

I accept the amendment that has just gone through, but, on the basis of the period—whether one year or at least 730 days—we do not think that we need to make any of these additional changes, particularly given their high cost in the current fiscal climate. I urge noble Lords not to press these three amendments. We do not consider them consequential upon each other.

[Lord McKenzie of Luton]

I thank the Minister for that reply and all noble Lords who have contributed to this short and rather interesting debate.

I suppose that whether something is retrospective depends on what one’s definition is, but if somebody’s entitlement was put in place at a certain time and under a certain set of rules, to have that entitlement restricted by subsequent legislation and to have the clock running from that earlier date would be, in most common parlance, retrospective. We can argue about the semantics all night and not change anything, but the way in which the Government have gone about this is particularly unfortunate.

I acknowledge the contribution and concerns of the noble Lord, Lord Kirkwood, and my noble friend Lady Lister over the assessment phase. My noble friend instanced the concern that the Minister expressed about this in Committee; I think that he has gone a little further today. As I understood it, he said that the assessment phase, when put in the context of a sickness absence policy, perhaps did not make a lot of sense. If that is the case, I presume that these issues will have to be addressed at some stage and some adjustment made to the process.

Rather than put us in a position where we would wish to test this issue by a vote—there is clearly a degree of support behind me on this and a strong degree of support on the Liberal Democrat Benches—can the Minister offer some comfort that there will be a chance to review this before we sign off the Bill? The consensus of those who have participated is that things are not satisfactory as they stand. Quite what would have to change in the light of any sickness absence policy which is developed would depend on where that policy is heading.

Certainly on issues of fairness, by taking account of the assessment period you are docking three months of someone’s employment and support allowance. Most people would see that as being the period when you get the addition because you are in one of the two ESA categories and therefore the Government are restricting it to only nine months.

[Lord Freud]

Let me clarify that—I hoped I had. Clearly you may not know what category of ESA you are in but you receive the money for the full 12-month period once it is decided. So there is not a problem like that. It is not nine months; it is a full 12 months.

On the question of what is to happen to the assessment phase, I will not be in a position by Third Reading, which is not far away, to give an answer. I am sure the noble Lord will have read the sickness absence review. It is an interesting piece of work which severely criticises the assessment phase. If we need to change it, we will give our response later this year. It is a substantial piece of work and it will take time to work through. It seems that it will become an area for regulations and if one is going to tie a lot of weight on this particular formulation it would probably be easier for the noble Lord to add another three months to his 24 months, if that is what he is trying to do. If it is a formulation of protection to add on another three months, it is not one that anyone would want to rely on for that reason.

[Lord McKenzie of Luton]

Tagging on three months is not the purpose of the amendment or of anyone who has spoken to this. There is concern about unfairness. The Minister said that you get the money from day one, but the point is that you get the money only at the basic JSA rate for the first 13 weeks. You do not get the enhanced funding that comes with the employment and support allowance when you are in either the not-fit-for-work group or not-fit-for work-related activity group. Those premiums do not kick in until after week 13. The Minister is frowning. Someone will correct me if that is wrong but I am getting support from the Liberal Democrat Benches.

I realise that we are not going to get definitive answers on any potentially significant policy development and change in the sickness absence report between now and Third Reading. However, rather than cause us to press this to a vote tonight, could not the Minister at least agree that we can have some further engagement between now and Third Reading to understand a little better the parameters of what is happening on sickness absence and how it might affect the assessment phase?

Seeking to press an issue that, given the hour and whose troops are available, we may or may not win would not be particularly constructive. People are trying to end up in the same place on this issue, which is very much the thrust of what the noble Lord, Lord Kirkwood, is saying, so could the Minister at least assure us of further engagement so that we can understand where this may be heading and the parameters within which it will be considered? Otherwise we move to Third Reading stuck with an assessment phase that we do not think is particularly fair and, in the Minister’s own words, not particularly sustainable. That does not seem a very sensible position to be in.

I do not propose to press the amendments tonight on the other two issues, retrospection and not accumulating the time spent in the work-related activity group, but I am seriously minded to press the issue of the assessment period, because we could have further engagement on that that might be of benefit to noble Lords, some of whom may be more supportive of these measures than others. We are genuinely trying to help the Government, and if they do not want to be helped we might have to look at the alternative. Perhaps the Minister can help us.

[Lord Freud]

My Lords, I am in a difficult position here. My view on the assessment phase is not going to have developed much further in the next two weeks. All I can say is that—well, let me just say what I would say in two or three weeks. I do not think that the assessment phase adds any value to the process; it puts people in limbo. It was meant to be a period in which people adjusted and settled down, and then they had their assessment. It does not seem to be working in that way at all, so we have had the very firm advice that we should get rid of the sickness absence review. If you want to be on ESA you apply for ESA, and if you pass the WCA you are on it, but you do not have all this messing around. That is what our firm advice was from an extraordinarily interesting and important piece of work, and that is where we will end up. If we start sticking other things on to a very shaky process that we want to get rid of, it does not seem a very useful thing to do at all.

[Lord McKenzie of Luton]

The Minister has advised us of an extremely helpful point. Would it follow that if the assessment phase disappeared, once the assessment had taken place and someone was assessed as being appropriate for putting into the WRAG or support group, the levels of funding under the ESA would kick in from day one? If they would, and that is the implication of what the Minister says, and the assessment phase went, that would be the difference between what we are facing at the moment and what might be the future. It would mean in effect that there would be no assessment phase and no period when people were paid at a lower rate than the work-related activity group component rate or the support group rate. If that is the case, we will not have quite the beef that we have at the moment with including the assessment phase.

The noble Lord has been helpful. We are just trying to see here and now how that formulation and prospect features in the Bill before us. At the very least, I ask that we agree to have another look at this, given what the Minister has said and that he is not going to be able to say anything much further between now and Third Reading, rather than having to take a decision on something tonight on which we would have only three-quarters of the information that we need. The Minister has been genuinely helpful, and we have to see how that translates into what we are considering.

[Lord Freud]

My Lords, I do not want to reopen this matter at Third Reading on the basis of things that I will have no further information on at all. That does not make much sense. The noble Lord is absolutely right that if we were to get rid of the assessment phase—and clearly that is something on which, as those who know how government works will know, we would have to do some work—it would be a big change. It would tie in with a lot of other changes, with work that we are going to be doing this year. We are utterly committed to this sickness absence review, which has been a very important document for us. My noble friend said that there was some value in using this assessment phase in this way in the future. I am trying to say that I do not think there is, because I would not want to put any weight on it. There might be other things that we can do to get out of a hole—if we are in a hole—but I honestly do not think that this is a promising line. I do not want to have this debate again at Third Reading. I have said everything I can on it, but I hope that I have said enough.

[Lord Freud]

I am clearly not in a position, and it would take more than a couple of weeks to get into a position, to make that kind of assurance. I know how skilfully your Lordships ask me these questions, and I deeply appreciate it, but I cannot do that. All I can tell the noble Baroness is that we have had a very powerful report on sickness absence, which I am personally very closely associated with and have sponsored. It made this recommendation, and most people in this Chamber who understand these matters would say that that is the way to go—as I would. Noble Lords must take their conclusions from that, but I cannot go much further or make promises on hypotheticals, because that is not how the system works.

[Lord McKenzie of Luton]

I understand the noble Lord’s dilemma; he is creating a bit of a dilemma for us. Can we at least agree that if we do not press the amendment tonight we preserve the right to bring back the issue at Third Reading, while accepting that the Minister might not be able to say anything further? It would at least give those of us who are not as close as the Minister is to the detail of the sickness absence stuff and where that might be heading a chance to reflect on what that might mean for this; and in particular if there were to be a change—as the Minister seems to want—and the assessment phase went, how that would be accomplished within the framework of the legislation.

[Lord Freud]

My Lords, I do not think that I can do that. We need to take a view now on this. All I can say is that Third Reading is probably not the time anyway for some of this stuff to come to a head. It is not the point at which my noble friend is thinking about it coming to a head. This kind of thing will probably come to a head when we have the debate between the Commons and the Lords. That is when some of these issues need to be looked at, so it is not helpful or productive to think of it happening at Third Reading. This kind of thing may become more relevant at a later stage, but not at Third Reading.

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[Lord McKenzie of Luton]

That was an extremely pertinent question. If in essence we can deal with this in due course when further analysis has been undertaken though regulation, that is fine; we would be happy to rest our case there. If the Minister is saying that primary legislation would be needed to deal with this —if that is the message coming from the Box—we are unlikely to have that opportunity for some little while.

[Lord Freud]

We are looking at the sickness absence review process, which is what this is about, and that is a substantial change that will need primary legislation. So I think my reply is to presume primary legislation.

[Lord McKenzie of Luton]

The Minister has not made this easy. I have been trying as best I can to avoid having a vote on this today.

[Baroness Hollis of Heigham]

If my noble friend will allow me, would the Minister be content if we were to introduce such a power by regulation at Third Reading, which would commit him to nothing or everything, according to how he wished to play it in future?

[Lord Kirkwood of Kirkhope]

Before whoever it is who is speaking sits down, I should say that I think that the Minister is making life difficult for himself. If he cannot take the advice that he is getting from all sides—and I, too, concur with what has been said—I, too, will look to get an expression of opinion from the House, which I really do not want to do. The suggestion that has been made about regulation-making powers is an easy out. I do not care what the Box thinks, actually; the Minister has the knowledge and the wisdom to take that decision right now, which would be a beneficial outcome for everyone.

[Lord McKenzie of Luton]

That has been helpful, as has been the intervention of my noble friend Lady Hollis, and I think that I can see a way forward. We do not need the Government’s permission to introduce an amendment in due course to take a regulation-making power, so if there is not that opportunity at the moment we will find out between now and subsequent Report days or even Third Reading. I think that that is what we will do; it will be a route through this. On that basis, and with that preliminary notice to the Minister, I beg leave to withdraw the amendment.

Amendment 40A withdrawn.

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45A: Clause 52, leave out Clause 52 and insert the following new Clause—
“Condition relating to youth
In section 1 of the Welfare Reform Act 2007 (employment and support allowance), after subsection (3) there is inserted—
“(3A) After the coming into force of this subsection no claim may be made for an employment and support allowance by virtue of the third condition set out in Part 1 of Schedule 1 (youth).””

[Lord McKenzie of Luton]

This amendment was in the same group as the amendment on which the Government were defeated but runs contrary to the decision that the House made previously. The assumption is that this matter will not be pressed. Otherwise, the Government give us no alternative but to force a vote on it.

[Lord Freud]

Yes, my Lords, we would like to take this to a vote.

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[Noble Lords]

Not Content.

[Lord McKenzie of Luton]

Forgive me—are we not dealing here with Amendment 46, which the Government have accepted is consequential on Amendment 36A?

[Baroness Hollis of Heigham]

My Lords, I was the person who drafted Amendment 36A. The noble Baroness, Lady Meacher, clearly introduced it as the paving amendment to Amendment 46. So the Government cannot do as they are now suggesting.

[Lord Freud]

My Lords, let me read out what I said in my speech. I said that I confirm that the Government see Amendment 46 as linked to Amendment 36A, but separate Divisions will be required on all amendments in this group.

[Lord McKenzie of Luton]

My Lords, the noble Lord does not make that happen just by asserting it. One amendment is consequential on the other. We have had a very clear and substantial vote on this, and it is quite disgraceful that the Government are seeking to undermine that.

[Baroness Hollis of Heigham]

I am sure that the noble Lord, Lord Freud, does not wish to appear to be subverting the view of the entire House, which was expressed in the full knowledge that the amendment which we voted on was devised—I devised it—as a paving amendment to a substantive one, so that we could debate it in good time. Most of the population of the House has gone home, believing in good faith that the previous vote has established the principle—as it has. However, the noble Lord is trying to renege on that by forcing a vote despite the late-night keeping of the roster. That would be quite improper and quite unprecedented, and I strongly suggest that he think again.

Universal Credit

Lord McKenzie of Luton Excerpts

Wednesday 21st December 2011 Lords Chamber

[Lord Freud]

My Lords, basically our categorisation in the latest plan is that urgent actions are still required. We are tending towards the problems appearing to be manageable with the actions in hand. That is the position that we are in, which will probably be no surprise at this stage in the project.

[Lord McKenzie of Luton]

My Lords, can the Minister confirm that the major projects review to which he has referred encompasses not only the universal credit component but the HMRC RTI component, which is a vital part, as the noble Lord has explained? What further assurances can he give us that continuing HMRC job cuts will not deflect progress, especially given this week’s news from the Public Accounts Committee about the need to deploy resources for urgent action to resolve uncollected tax of £25 billion from large companies?

[Lord Freud]

My Lords, there are two processes: the assurance of the RTI programme and that of the universal credit programme. The RTI programme went through its latest assurance rather earlier than the UC assurance process, which was reviewed between 9 and 11 November. The review said that the engagement between the DWP and HMRC represented an exemplar of how these things should be done. I am looking through this project very closely, as noble Lords can imagine, and one area that I am pretty confident about is that the relationship between these two departments is right and working well.