HL Deb 20 April 1995 vol 563 cc584-634

3.48 p.m.

Lord Mackay of Ardbrecknish

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Mackay of Ardbrecknish.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 1 [The jobseeker's allowance]:

Earl Russell moved Amendment No. 1:

Page 1, line 9, at end insert ("subject to the provisions of section 37(2)").

The noble Earl said: In moving this amendment I shall speak also to Amendment No. 184 which is consequential upon it. Before I do so, I wish to express my sympathy and to offer my condolences to the noble Baroness, Lady Turner of Camden, whose husband has so sadly died during the Recess. It was my privilege to meet him only once and he was a man to whom I took an instant liking. I offer the noble Baroness my sympathy with all my heart. I hope to see her back in due course and I wish her the very best that I can.

Also, I wish to express my regret that the Delegated Powers Scrutiny Committee, as I understand it through no fault of its own, has been unable to complete its study of the Bill in time for the Committee stage. As the Committee will know, that is normally the stage at which we take up the very valuable help which we receive from that committee. As it is, we shall not be able to have its full and detailed findings in a second report available to us until the Report stage. That means that we shall not be able finally to dispose in Committee of all the many issues arising from the delegated powers in the Bill. In that context, I must express my regret at the limited number of days available for the Committee and Report stages of the Bill. I welcome the spirit and the letter of the report of the committee on the Sittings of the House. But we can only operate those recommendations when we have enough time to do so. I shall do my best; but I cannot promise success.

The effect of the above amendment is to postpone the commencement of the Bill until 1st April 1997. I believe that the Department of Social Security, left to itself, is one of the more competent departments in Whitehall. Nevertheless, over the past few years, it has experienced a series of what I believe we are not now supposed to describe as "cock-ups" and which, I may perhaps describe as "indiscreet elevations".

I shall not go into the severe hardship payments for 16 and 17 year-olds because we shall have time to discuss that issue later. However, there is the story of disability living allowance; there is the story of the Child Support Act; there is the story, about which we shall hear a great deal more, of incapacity benefit; and there is the story to which I shall return, after today's Question, of the habitual residence test. In those cases, I believe that it is more than a fiction to say that the Minister is responsible—this Chamber having what the noble Lord, Lord Peston, once described as a sense in government circles that, "It will be all right on the night"; in other words, that it will be possible to press ahead and that, somehow, all the difficulties will mysteriously vanish when it comes to implementing the legislation. As a result—certainly to my knowledge from 1988 onwards—the Government have a record of attempting to implement their Bills a great deal too fast.

The latter is especially true in the case of what, as the noble Lord, Lord Inglewood, admitted on Second Reading, is a framework Bill. That means that large parts of the Bill are, in effect, not yet ready to be put before us. I do not know how far they have been thought out or what wordings are available in draft for the numerous series of regulations that we can expect under the Bill. However, I hope that the Minister will be able to give us a response to what the noble Lord, Lord Henderson of Brompton, requested at Second Reading. The noble Lord said that he hoped that it would be possible to allow Members of this Chamber to see those regulations in draft before they were officially presented. That would tend to save public contention. If the Minister does do so, it will of course take time; but, if he does not do so, it will take time in other ways.

Merely finding time in the business of the House to deal with the number of regulations that must be scrutinised before the Bill comes into effect will be very time consuming. In fact, the Government admit in the Explanatory and Financial Memorandum to the Bill that they are not really sure yet how they will set about it. Part of the section headed Effect of the Bill on Public Service Manpower says: Since detailed decisions on the delivery of jobseeker's allowance have yet to be taken, it is not possible to quantify the overall effect at this stage". In my view, a government who say that are not yet ready to bring their measure into effect. If we want to avoid another catastrophe when the legislation is put into effect, it would be well worth the Government's while to postpone what they do for a little while.

I believe that there is also a considerable problem about the effect of the Bill on public service manpower. I have given the Minister notice of a series of questions that I intend to ask about adjudication officers. As I understand it, it was the intention of the Bill to take work off adjudication officers by taking decisions at the front line in the hands of the employment officer. I do not think that it will work that way. When employment officers find people not to be eligible for benefit, I believe that there will be a flood of appeals going forward to adjudication officers.

Therefore, can the Minister tell me, first, how many adjudication officers are in post? Secondly, what is their average salary? Thirdly, who appoints them and what are their terms and conditions of service, especially their tenure? Fourthly, what at present is the average waiting time for appeals concerning unemployment benefit; and, fifthly, how many new adjudication officers are the Government planning to appoint to deal with the work arising from the Bill? That is a question upon which they ought to have thought before fixing a commencement date.

There is also the problem of merging two bureaucracies—employment and social security; in other words, the merging of two departmental cultures. If there is one thing that we all know about Whitehall it is that there is nothing harder than merging two departmental cultures. In fact, the cultures of employment and social security are extremely different. They remind me of Sir Alan Herbert's Epitaph on an Archbishop: My predecessors fighting sin, Did their best to bring men in, But I was best without a doubt, At keeping the unworthy out".

Getting those two attitudes to work together in employment offices will be a very stormy task and it will take time. There is also the problem of what I understand is now described in Parisian fashion as "co-location". As an academic, I know all about the difficulties of split-site mergers. Where we are getting the local merger of services, do we know yet to what extent they will be brought together in one lot of premises and to what extent they will be split between two different premises? Further, do we know how much progress will be made—and such progress will be vital to justify the principle of the Bill—towards one-stop shops where people can deal with the business of employment service, career service and benefit agency all in one? In rural areas in particular, where people on benefit probably have neither the money nor the opportunity to travel, that can be quite vital.

If the Minister can convince us that all those provisions are ready and in place to implement the Bill on 1st April 1996, well and good. But, if the Minister tells me that it will be, "All right on the night", I shall tell him that it was not so last time. I beg to move.

4 p.m.

Baroness Hollis of Heigham

I should like to express my support for the amendment. However, in doing so, I should like to say, as did the noble Earl, Lord Russell, that the amendment would have been supported from our Benches by my noble friend Lady Turner who, as the noble Earl explained, is sadly absent from the Chamber. I am sure that we are all grateful for the concerns that the noble Earl and other Members of the Chamber have expressed and we shall certainly relay them to my noble friend. It will mean, however, that many of us will be dealing with amendments which my noble friend would, I am sure, have dealt with even more persuasively and articulately than my friends and I could hope to do today.

The more I contemplate the noble Earl's amendment, the more it seems to me that it has all kinds of virtues. The noble Earl is calling for a year's delay in implementation. Obviously, this is not the time and place to make a Second Reading speech, but I should like to make two points. First, I should like to reinforce what the noble Earl, Lord Russell, has said about the regulation in the Bill. There are 116 regulations. I wish to quote from the interim report of the Delegated Powers Scrutiny Committee which states at paragraph 9: It could nonetheless be argued that the Bill leaves so much power in the hands of Ministers and that these powers are so fundamental that the Bill is no more than a skeleton Bill of the kind against which the committee warned in its first report to the House". The report then considers some of the individual regulations. It states, on Clause 4, The committee worries whether such a fundamental matter should be left undefined in this way even where there are precedents in social security legislation provisions to do so", and so on.

We have here guidance from the Delegated Powers Scrutiny Committee, set up by this Chamber, to suggest that this is a framework Bill and we do not yet know how it will affect the many thousands of people we are considering today. We need to know more about what is intended and we need to have the judgment of the Scrutiny Committee to tell us how that should be regarded by us, but we do not have that here. That is one of my reasons. However, there is a second set of reasons I should like to spend a little more time on. This is a reason which might even commend itself to the Government: it is the savings that would result were this Bill to be delayed by a year.

The first reason—this is not my priority but I certainly suspect it would be the Minister's—would be the savings in cash. I understand the Government expect to save £140 million on this benefit in the first year and £270 million in a full year. We on this side of the Chamber do not accept those figures. We accept that there will be savings in this benefit because costs saved in this benefit will be exported to other benefits, in particular housing benefit and council tax benefit. Why is that? It is because the Government, despite the best efforts of those on the Opposition Benches at Second Reading to explain the disincentive effect of means testing on working families, still fail to understand the point that, if one moves onto means tested benefits after six months instead of 12 months and the working partner—it is usually the female—is in part-time work, she will come out of work rather than have her male partner's benefit deducted pound for pound for every pound she earns.

Therefore, the Government in this Bill have constructed a perverse system which ensures that, if one partner loses his job—let us say the husband—the second partner will also lose her job. Both then need to claim more benefit and for longer. This is not a figment of my imagination. I have had modelling done by reputable bodies which shows that if the male partner is on unemployment benefit and the female partner is in part-time work, they might on certain assumptions receive benefit of £100 a week. But if they both come out of work and they are both on benefit because of the effect of means testing we shall have to pay them £70 more in benefits; that is £170 to £180 a week rather than £100 that they will currently be receiving.

I predict—I believe this is well substantiated—that although the benefit we are discussing may be cut, total social security expenditure will rise because the costs will be displaced elsewhere. Only when the total job market is expanded as a result of investment and training will there be real saving on social security budgets. Delay these benefit changes by a year, and save us all some money.

Secondly, an even more significant argument is that such a measure would save stress and distress for claimants. It would save the stress and distress that would visit those under 25 who, although they have paid their national insurance benefit, will now find government reneging on that contract and cutting their benefit by 20 per cent. It would save the stress and distress on those who do not quite shape up to the new harsh actively seeking work tests embodied in this Bill because, quite unreasonably, English is not their first language; or because, quite unreasonably, they have a learning difficulty; or because, quite unreasonably, they are partially disabled and do not qualify for incapacity benefit, on the one hand, and may fail to qualify for JSA, on the other; or, quite unreasonably, because although they had skimped in the past to build some modest savings, they now find those savings lost before they can enjoy any benefit. Would we not wish to avoid such social stress?

Thirdly, like the noble Earl, Lord Russell, we are anxious to save the plummeting reputation of the Government in the field of social security. We are being altruistic. The Government were warned but ignored the fact that they would face major problems as regards the poll tax; and guess what the Government subsequently had to do about that? The Government were warned but ignored all of the amendments and issues raised by the Opposition as regards the Child Support Agency; and guess what the Government will now have to do about that? The Government have been warned but have ignored the major problems that are now apparently being thrown up by the new incapacity benefit; and the Government will quite rightly face a stormy year ahead on those issues. May we suggest to the Government that they might want to save themselves some stress and distress too because this Bill is rightly detested? It is seen as nasty, bullying, vindictive and mean. It is seen as all of that precisely because it is that.

There is one final saving. Depending on the fate and fortune of the Prime Minister, we will by April 1997 either have had or be within weeks of a general election. Why implement a Bill when the whole policy behind unemployment will change, so that instead we will be rebuilding our economy rather than merely punishing the unemployed who are losers as a result of the Government's economic policies? The £270 million that the Government expect to save in the first full year of this benefit would be financed by getting just 30,000 people back to work. That is what we will be doing, but we will be doing it more aptly without being encumbered by such a Bill as this. I support the amendment.

Lord Boyd-Carpenter

The noble Earl, Lord Russell, is a very experienced and, if he will allow me to say so, very effective parliamentarian and I very much hope that my noble friend the Minister will be ready to answer fully the points which he made, I thought with considerable fairness and certainly considerable authority. I rise only to support one thing he said, and that is when he indicated that he thought it was unwise of the Government to try to restrict the Committee stage debates on this Bill to three days.

This Bill is a Bill of very great importance to a great many of our fellow countrymen. It is also, as even a perfunctory study of it makes only too clear, an extremely complicated measure in which it is always possible that government and even the best of Ministers may make mistakes, and it would be an advantage if this Chamber, with the great volume of expertise which it includes in its membership, were to be able to discuss it fully. Therefore, it seems to me that a three-day limit is a very great mistake and that it will involve rushing the Bill, or rushing at any rate this stage of the Bill, and also perhaps taking a good deal of it at an inconvenient hour of the night. Therefore I hope that my noble friend the Minister, when perhaps he has contemplated what happens in today's debate, will reconsider the question of limiting the Committee stage to three days.

I appreciate fully, because I served as a Minister for a good many years, the compulsions—and the desirability obviously from a Government's point of view—to get their legislation in good time. But there is an answer to all that and that answer is to do what in any event we will do next week; and that is to sit on some Fridays. It would be perfectly possible to include at any rate another day of the Committee stage on a Friday since, as I understand it, only next Friday is at the moment hypothecated to a particular debate.

I know that the Government, with their very tender and proper concern for the convenience of Ministers, are not always keen to sit on Fridays. However, given the volume of business which your Lordships' House is being asked to consider, I believe that the answer is to take an additional Friday rather than curtail this Committee stage to three days. Four days, or perhaps even five days, might well be devoted profitably to this Bill.

I suggest to my noble friend that that is not only in the national interest but in the interests of the Government. I know from experience that this is the kind of Bill in which it is possible to make mistakes. It would be an advantage to the Government to have a full debate, with the possibility of revealing errors, difficulties of drafting and so on, which can only be brought out if there is full debate.

For that reason, and also because I happen to be a great believer in the review functions of your Lordships' House, I ask the Government to consider, when today's debate is over (I do not ask the Minister to reply to this point this afternoon), at least a further day and possibly two further days in Committee.

4.15 p.m.

Lord Mackay of Ardbrecknish

Perhaps I may begin by expressing my total agreement with the noble Earl, Lord Russell, in his sympathetic remarks to the noble Baroness, Lady Turner. I hope that we see her back shortly.

I heard the words "I am going to resist making a Second Reading speech". I shall also use them but, unlike the noble Earl and the noble Baroness, I shall resist making another Second Reading speech. I shall address myself to the amendments in front of us. We shall come to the other matters in the course of today and the two days to come.

That allows me to address the point of whether we have three days, four days or even five days, as my noble friend Lord Boyd-Carpenter invited me to contemplate. We have just had five days on the Committee stage of the Pensions Bill, which was a very much larger Bill than this and covered a wider field. Indeed, we debated that Bill first, before the other place. This Bill comes to us having been through the other place. It has been through its Committee and Report stages there. Taking into account the time allocated to the Pensions Bill and other Bills, I believe that three days is about right for this Bill. I hope that we can study all the various parts of the Bill during those three days.

Amendment No. 1 is a paving amendment for the noble Earl's main amendment, Amendment No. 184, which invites me and the Committee to postpone the introduction of the jobseeker's allowance until April 1997. Clause 37(2) of the Bill provides that the substantive provisions of the Bill will come into force on a date set by the Secretary of State. This gives the Secretary of State discretion to set the actual date of introduction as he judges appropriate. Subsection (3) of that clause allows for different dates to be set for the introduction of different aspects of the provisions.

Members of the Committee are aware that our intention has always been to introduce JSA in April 1996. That remains the case. The noble Earl clearly recognises that the introduction of JSA is a large and complex task. We also recognise that. He would prefer us, in recognition of that fact, to take an additional year to complete the task, with a greater degree of certainty of getting the implementation right first time. The noble Baroness, mindful of the Government's welfare, concurred with that argument. Tempting as it may be to succumb to those blandishments, I must invite the Committee not to accept the amendment in the noble Earl's name.

I give the Committee and the noble Earl this assurance. We are closely monitoring progress towards implementation. As was announced in another place, we have commissioned an external review of the work being carried out to implement JSA. That review will help us to ensure that all the necessary arrangements are put in place to introduce JSA in April 1996.

If we conclude, for whatever reason and at whatever date, that the arrangements being made for the introduction of JSA in April 1996 are such that there is an unacceptable risk that things might go wrong, then we shall certainly consider alternatives. One of the alternatives would be to delay the date of introduction. One of the objectives of the jobseeker's allowance is to improve the service we offer to jobseekers. We certainly do not intend to put that at risk.

I am not sure whether I shall be in order if I try to answer some of the questions the noble Earl asked me about two aspects of the implementation of the Bill and the jobseeker's allowance. On the question of premises, I can tell the noble Earl that the payment of JSA will, as far as possible, be made from Employment Service Jobcentres. We think that that is the right place to do it. In practice, how the staff are spread across the Employment Service and Benefits Agency offices will be managed pragmatically by each district, with a view to obtaining the best value for money for the state and providing the best service for the people who visit us. Planning guidance is currently with the Employment Service and the Benefits Agency. Field organisations in various parts of the country are considering all these matters and related issues as to how we provide the "front of house" service for the claimant who comes looking for a job.

The noble Earl kindly gave me advance notice that he was going to ask these questions on adjudication officers. I shall answer his questions as quickly as possible and I hope that the Committee will bear with me. I was asked the questions and I ought to try to answer them.

There are approximately 650 specialist adjudication officers currently employed by the Employment Service to give decisions on doubtful claims for unemployment benefit and to process appeals against decisions. That figure excludes adjudication officers working in regional offices on advisory monitoring duties and officers with adjudication powers who award benefit in straightforward cases.

The Benefits Agency calculates the number of adjudication officers differently, as adjudication officers are mainly drawn from staff in LO1 and LO2 grades. They have many other duties in addition to adjudication. Therefore, it is not so easy to provide an accurate figure on how staff are deployed. However, we estimate that there are currently approximately 11,000 such staff, although I must emphasise that that is an estimate.

The noble Earl asked about the pay rates of the staff. The Benefits Agency has no set grade for adjudication officers. Generally, adjudication is undertaken by officers of two grades and those grades have average salaries of £15,848 for an LO1 and £11,852 for an LO2. In the Employment Service the post of specialist AO is graded as falling within the Employment Service management pay band 6. The salary range is £12,300 to £15,900. I am afraid that I do not have enough information on which to calculate the average rate of pay for adjudication officers.

The legal status of adjudication officers derives from a centralised instrument of appointment. The instrument makes a block appointment of those staff who are employed wholly or partly on social security adjudication. Individual adjudication officers do not receive a personalised letter of appointment. Officers in the Employment Service are appointed by an Assistant Secretary on behalf of the Secretary of State for Social Security with the concurrence of the Chief Executive of the Employment Service on behalf of the Secretary of State for Employment. They are civil servants. They are recruited and promoted with regard to their capability to act as adjudication officers. Conditions of service in both services are the same as those for all permanent civil servants who work in either agency.

I was asked about average waiting time on appeals. Information is not available on individual reasons for appeals and could only be obtained at considerable cost. For appeals against all decisions on unemployment benefit in the quarter ending June 1994, which is the latest period for which we have figures, the average time from the lodging of the appeal to the date of hearing was 22.4 weeks. Employment Service adjudication officers process appeals and submit them to the Independent Tribunal Service in an average of 21 days from the date of receipt. Of course, many appeals are dealt with more quickly.

Lastly, I was asked whether we plan to appoint any more adjudication officers. Under JSA there will be more adjudication officers making labour market decisions, as front-line staff in the Employment Service will become involved in specific areas for the first time. There will be a reduction in the adjudication work that is currently carried out at ES sector adjudication offices as responsibility for payment adjudication will transfer to the BA. The organisations will consider the number of staff employed on adjudication during the course of working out how they are to deliver the service.

I have answered as briefly as I can the questions sent to me by the noble Earl. I come back to the substantive point that I wish to make in relation to the amendments before us. If for any reason we conclude that the arrangements for introduction pose an unacceptable risk we will certainly take the steps available to us to delay the date of introduction. I hope that, with that assurance, the noble Earl will feel able to seek leave to withdraw his amendment.

Baroness Hollis of Heigham

Before the noble Earl decides what to do about his amendment, perhaps we may make clear our view on Committee days. Obviously, the three Committee days were arranged through the usual channels, and therefore it is inappropriate for me to demur. However, given the comment of the Delegated Powers Scrutiny Committee that it will not be able to report on the Bill until after Committee stage, I wonder whether there is a case for asking the Minister to consider with his colleagues, through the usual channels, that there should be a day and a half rather than one day at Report stage. That will allow us to take the Report stage rather more thoroughly than may otherwise be the case, in particular to take on board at that stage the issues raised by the Delegated Powers Scrutiny Committee that we have not been able to do this time around. After all, if we are to have three Committee days it is not unusual to ask for a day and a half rather than one day for Report. That may meet the well-founded criticisms of both the noble Earl and the noble Lord, Lord Boyd-Carpenter.

Lord Rochester

Perhaps I may ask the Minister what provision is to be made for the training of the additional adjudication officers to whom he referred.

Lord Henderson of Brompton

I should like to say a word in support of the speeches from the two Opposition Benches, and the speech of the noble Lord, Lord Boyd-Carpenter. I make a plea for extra time for consideration of the Bill. I do not believe that this Bill can be compared with the Pensions Bill. This Bill is only a skeleton, whereas the Pensions Bill was fat and already fleshed out to a large extent. In addition to the suggestions already made, I ask that somehow time should be provided in Committee, on re-commitment if necessary, to consider the second report from the Delegated Powers Scrutiny Committee. After all, that committee has said quite clearly that, wherever it can, it issues its report so that it can be discussed in Committee with all the freedom of debate which that stage of the Bill allows.

We will not have the substantive report of that committee until after the end of Committee stage. If we are to have that freedom of discussion I believe that before Report stage, or some time thereabouts, we should be allowed to discuss the substantive report of the Delegated Powers Scrutiny Committee in Committee on re-commitment. I should like the noble Lord to consider that suggestion sympathetically.

Baroness Williams of Crosby

I should like to press the Minister on one other point that arises from the report of the scrutiny committee. In that committee the memorandum from the two departments pointed out that most of the resolutions likely to be considered regarding regulations would be subject to the affirmative procedure until the date that the JSA itself came into effect. Thereafter, they would be subject to the annulment procedure.

As noble Lords will know, in terms of effect the annulment procedure is much more difficult. One is asking the Government to reconsider regulations. Because this is in many ways a framework Bill, not a detailed one, a great deal of its effect will depend on the nature of the regulations. Perhaps the Minister can give an assurance that the substantive regulations will, as far as possible, be brought forward before the date on which the JSA is brought in and that, if that cannot be done, he will reconsider his advice to the Committee not to press the amendment at the present time.

Lord Mackay of Ardbrecknish

Perhaps I may say to the noble Baroness, Lady Williams of Crosby, that that is the very point. Put another way, the important first time around is by affirmative order. Obviously, the system cannot be up and running without all of the regulations having been passed. Therefore, the first time they appear the affirmative order will apply. There is precedent for that procedure. The first time the regulations come before the House and into public view is by far the most important time.

I am not too sure how many happy hours the noble Lord, Lord Henderson of Brompton, spent on the Pensions Bill. That was an extraordinarily important, long and complex Bill. It covered a very wide field. This Bill covers a very much narrower field. The length of time that one spends on a Bill is dependent entirely upon how much time one spends on some of the preliminaries. We have already spent quite a bit of time today on the preliminaries. I do not wish to take up any more time. Let us get on with the detail. I will certainly draw to the attention of my noble friend the Lord Privy Seal the points that have been made about the time allocated to Report. But my view on that is the same. When viewed against the days devoted to the Pensions Bill, I believe that the present allocation is generous.

As far as training adjudication officers and other staff is concerned, I say to the noble Lord that the Benefits Agency and the Employment Service have a pretty well developed system. There are very considerable training facilities in the agencies, as indeed in the Civil Service, for anyone who is appointed an adjudication officer, or in any other capacity, or promoted to a new job.

Earl Russell

I am grateful to all noble Lords who have spoken. I am particularly grateful to the noble Lord, Lord Boyd-Carpenter. I agree with almost every word he said. The more that we can approach this matter in a non-party spirit the more we will advance. I am also grateful to the noble Lord, Lord Henderson of Brompton. The distinction that he makes between this Bill and the Pensions Bill is a perfectly sound one. It is of the essence of a framework Bill that a lot of it is not there and one has to tease it out. I do not believe that the Minister was here when we dealt with the Education (Student Loans) Bill. That was in effect a three-page Bill. I believe it had one line on a fourth page. However, it produced two very long days in Committee. The less you put into a Bill the more time it takes in Committee.

I was disappointed that the Minister was not in a position to respond to the point made by the noble Lord, Lord Henderson of Brompton, at Second Reading about consultation over an advanced draft text of the regulations. That might reduce the time it takes to bring the Bill into effect. In general, the Minister did not seem particularly ready to accept olive branches. I know that the Minister has discretion, but I have yet to be convinced that there is any likelihood of his using it. I also know that the Minister and the department will monitor carefully. I heard that said in relation to the Child Support Act, 16 and 17 year-olds and the disability living allowance. However, it is very rare indeed for anything to change because the department has monitored something. I was interested in the choice of the words "on premises". It was said that it would be managed pragmatically. That is a wonderful example of Whitehall-speak for "I do not know". I think that at this stage of the Bill they ought to know.

I am grateful to the Minister for the information he gave about adjudication officers. It confirms my sense that adjudication officers will be under more pressure than they are able to cope with. A period of 22.4 weeks when, in the meantime, one may be totally without benefit is an inhumanly long time. I think we should expect that to increase; it may even double or treble with the flood of appeals that will arise under the Bill. That confirms my sense that the department is not ready for the storm that is coming its way and that it needs more time to think about it. I seek the opinion of the Committee.

4.29 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 91; Not-Contents, 119.

Division No. 1
Acton, L. Jay of Paddington, B.
Addington, L. Jeger, B.
Airedale, L. Jenkins of Hillhead, L.
Allen of Abbeydale, L. Jenkins of Putney, L.
Allenby of Megiddo, V. Kennet, L.
Ampthill, L. Kilbracken, L.
Archer of Sandwell, L. Lockwood, B.
Avebury, L. Lovell-Davis, L.
Beaumont of Whitley, L. McCarthy, L.
Bruce of Donington, L. McIntosh of Haringey, L.
Callaghan of Cardiff, L. Mar and Kellie, E.
Carter, L. Methuen, L.
Chapple, L. Milner of Leeds, L.
Cledwyn of Penrhos, L. Monkswell, L.
Cocks of Hartcliffe, L. Murray of Epping Forest, L.
Darcy (de Knayth), B. Nelson, E.
Dean of Thornton-le-Fylde, B. Nicol, B.
Desai, L. Northfield, L.
Diamond, L. Palmer, L.
Dormand of Easington, L. Peston, L.
Dubs, L. Peterborough, Bp.
Eatwell, L. Plant of Highfield, L.
Ezra, L. Redesdale, L.
Falkender, B. Richard, L.
Falkland, V. Ritchie of Dundee, L.
Fisher of Rednal, B. Rix, L.
Fitt, L. Rochester, L. [Teller.]
Foot, L. Russell, E.
Freyberg, L. Sainsbury, L.
Gallacher, L. St. John of Bletso, L.
Gladwin of Clee, L. [Teller.] Sefton of Garston, L.
Gould of Potternewton, B. Shaughnessy, L.
Simon, V.
Graham of Edmonton, L. Smith of Gilmorehill, B.
Halsbury, E. Stallard, L.
Hamwee, B. Stedman, B.
Hanworth, V. Stoddart of Swindon, L.
Haskel, L. Thomas of Walliswood, B.
Henderson of Brompton, L. Thomson of Monifieth, L.
Hollick, L. Tordoff, L.
Hollis of Heigham, B. Wallace of Coslany, L.
Howie of Troon, L. Wharton, B.
Hylton, L. White, B.
Hylton-Foster, B. Williams of Crosby, B.
Ilchester, E. Williams of Elvel, L.
Jacques, L. Williams of Mostyn, L.
Addison, V. Cockfield, L.
Ailesbury, M. Coleridge, L.
Ailsa, M. Cork and Orrery, E.
Aldington, L. Cornwallis, L.
Alexander of Tunis, E. Courtown, E.
Ashbourne, L. Cox, B.
Astor, V. Cranborne, V. [Lord Privy Seal]
Belhaven and Stenton, L.
Bethell, L. Cumberlege, B.
Blaker, L. Dacre of Glanton, L.
Boardman, L. Davidson, V.
Boyd-Carpenter, L. De Freyne, L.
Brabazon of Tara, L. De L'Isle, V.
Bridgeman, V. Dean of Harptree, L.
Brougham and Vaux, L. Denton of Wakefield, B.
Burnham, L. Downshire, M.
Butterworth, L. Elles, B.
Cadman, L. Ferrers, E.
Campbell of Alloway, L. Fraser of Carmyllie, L.
Campbell of Croy, L. Fraser of Kilmorack, L.
Carnegy of Lour, B. Gage, V.
Chelmsford, V. Gainford, L.
Chesham, L. Gainsborough, E.
Clanwilliam, E. Gisborough, L.
Clark of Kempston, L. Goschen, V.
Hailsham of Saint Norrie, L.
Marylebone, L. Northesk, E.
Harding of Petherton, L. O'Cathain, B.
Hayhoe, L. Orr-Ewing, L.
Henley, L. Oxfuird, V.
Hogg, B. Pender, L.
HolmPatrick, L. Plummer of St. Marylebone L.
Hothfield, L.
Howe, E. Prior, L.
Inglewood, L. [Teller.] Pym, L.
Killearn, L. Quinton, L.
Kingsland, L. Rawlings, B.
Kinnoull, E. Rennell, L.
Lauderdale, E. Renton, L.
Lindsay, E. Renwick, L.
Lindsey and Abingdon, E. Romney, E.
St Davids V.
Liverpool, E. Savile, L.
Long, V. Seccombe, B.
Lucas, L. Sharples, B.
Lyell, L. Shrewsbury, E.
McColl of Dulwich, L. Skelmersdale, L.
Mackay of Ardbrecknish, L. Slim, V.
Mackay of Clashfern, L. [Lord Chancellor.] Strange, B.
Strathclyde, L. [Teller.]
Macleod of Borve, B. Sudeley, L.
Malmesbury, E. Swansea, L.
Marlesford, L. Swinfen, L.
Milverton, L. Terrington, L.
Montgomery of Alamein, V. Thomas of Gwydir, L.
Morris, L. Trumpington, B.
Moyne, L. Tugendhat, L.
Munster, E. Ullswater, V.
Murton of Lindisfarne, L. Vivian, L.
Newall, L. Wise, L.
Noel-Buxton, L. Wynford, L.
Norfolk, D. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.37 p.m.

Lord McCarthy moved Amendment No. 2: Page 1, line 12, after ("for") insert ("and is seeking").

The noble Lord said: My Lords, in moving this amendment, which is directly related to Amendment No.4, I shall at the same time speak to Amendments Nos. 41, 42, 51, 59 and 65. Like many other amendments on the Marshalled List, these derive from the work of my noble friend Lady Turner. I echo all the remarks that have been made about the work that she has done. We are very sorry that she is not with us this afternoon.

The central aim of the amendments—it was an idea very close to my noble friend's heart—in effect is to take out of the Bill the word "actively" in the phrase "actively seeking work", and indeed take it out of employment practice. As she said, you cannot inactively seek work. If you seek work, you are seeking work actively. In principle, we do not need the word "actively".

Much more importantly, in the Employment Service, in practice since its entry the actively seeking work test has become synonymous with the transformation of the service.

It is the most notorious change in the administration of the employment benefit service over the past 15 or 16 years—not merely the phrase, but the way it has been interpreted. Therefore the object of these amendments is to insert into line 12 of the Bill on page 1 the words "and is seeking". The Bill would therefore read as follows: is available and is seeking employment;".

To reassure those who think this might mean that as a result of this amendment everybody would get employment benefit without any tests, I must remind your Lordships of what would remain in Clause 1 of this Bill. The object of Clause 1 is to reserve the Government's position so that anyone who is seeking the jobseeker's allowance can be denied that allowance on 10 related grounds. That is what this clause says. It is a bit like the National Lottery. You have to get through 10 of the right holes; you must have 10 of the right numbers to get any money. You have to be sufficiently available for work to satisfy the officers of the employment service, and you have to agree to sign the jobseeker's agreement. They have to agree to let you sign it, because if they disagree with the conditions that are in it they may not let you sign the agreement, in which case you are stopped. You have to be available for work and active for work. You have to have paid enough contributions or you will not get any money. You must not have too much capital or any income or else you will not get any money. You must not be engaged in remunerative work. You must not be incapable of any work. I admit, to be fair to the Government, that is very difficult to operate. It is very difficult to be incapable of any work these days: almost anybody who stands up or leans to is capable of work. But there it is: it is in the Bill. You cannot be receiving any education; you cannot have a pension; and you must not have left the country. You have actually to be here.

If you get through all these holes with all these qualifications, you can get a jobseeker's allowance. The point I want to make is that we are not seeking to knock down all these barriers. There are still seven barriers to getting money. You have still to get through seven of the gateways. We are just trying to affect the "actively seeking work" test. That is all this amendment means. It affects at the most two or three of the barriers.

What is the case against deleting, or redefining—because some of our subsequent amendments seek to define "actively" if we cannot get the Government to take it out—the "actively seeking work" test? It is partly an argument from history and partly an argument from contemporary practice. In October 1989 the Government decided to modify the availability for work test. It changed the adjudication officer's guide, which said that in future applicants for unemployment benefit were required to take active steps.

All the evidence is that from that moment the number of disallowances significantly rose. In 1992—and, in my opinion, more significantly still—the rules were changed. The employment officers no longer wrote warning letters if they felt that an applicant was getting close to being in breach of the "actively seeking work" test. Now there are no warning letters: we have a later amendment about this. An applicant will simply get taken off employment benefit.

This is perhaps the most important thing of all: in 1994 the employment staff who administer this test, who you would have thought were supposed to be the most objective of people involved, were placed on performance-related pay. Many of you will know already how strongly the Government resent any indication that they might be placed on performance-related pay themselves, but it is perfectly appropriate for every body el se. It is perfectly appropriate for members of the employment staff, who now have a vested interest because they get bonus points for getting people disallowed in respect of benefit. If performance-related pay goes far and fast enough, Her Majesty's judges will get performance-related pay for convictions and for sentences. We have not got that far yet.

However, this was a quasi-judicial function, I would submit; and I would also submit that the effective operation of the service depended upon applicants believing that they were getting some kind of judicial assessment by an independent person who, if he was not on their side, at least was not against them. Nevertheless, we now know that within the year there were three times as many disqualifications as there were before, and the number of references to adjudication officers rose. That is the history of what has happened through the manipulation of the activity test in the administration of the employment service.

Those of you who have been interested in this Bill will know that we have been inundated with evidence and testimony from all kinds of interested parties, and in particular from the citizen's advice bureaux giving concrete examples of people who have come to them saying—and this is under the present system—they must attend three times a week; they must get a list of jobs; they must produce a diary which shows that they have been to see a series of employers, who have signed in the diary to say that these people have turned up. You will know of the complaints from employers who say that they have received all kinds of useless applications. You will know the demotivating consequences that have come to the notice of officers in the citizens' advice bureaux of people going after ludicrous jobs for which they have no qualifications. You will know of the rising tide of despair and of poverty for people who suddenly find that the Giro has not come this week and that they have been declared not eligible for unemployment benefit.

We do not say that by passing this amendment this will be cured. There are lots of other amendments referring to other parts of this Bill that would do that; but we say that this use of the "actively seeking work" test is the most simple, straightforward and significant sign of what is wrong with the employment service. We ask your Lordships to take it from the Bill. I beg to move.

4.45 p.m.

Earl Russell

I am not in the habit of quoting my own speeches, but in case the Minister should be tempted to say that I have changed my mind, I thought I might quote what I said on the 1st December 1992 when we were debating the latest "actively seeking work" regulations. What I said was this: We on these Benches support the requirement that people should actively seek work. We do not regard it as acceptable that people should simply take benefit and do nothing. But that is not the only factor we regard as right. We also believe it is right that people should not die of starvation and that the use of starvation as an instrument of policy is unacceptable."—[Official Report, 1/12/92; col. 1311.] You may remember in the Bill of Rights that the dispensing power was abolished as it has been exercised of late. We think that people should seek work, but we oppose the "actively seeking work" requirement as it has been exercised of late. We agree with what the noble Lord, Lord McCarthy, said about the withdrawal of the warning letter. We agree very strongly indeed about the withdrawal of hardship pay. That is in fact our biggest single grievance.

We also agree that it is not right that people should be sent chasing round to all sorts of jobs for which they are obviously unsuitable. In fact on 1st December 1992, the noble Baroness, Lady Hollis of Heigham, said she believed that this was leading some employers not to use the Jobcentres. That is extremely unfortunate for all of us. We on these Benches also agree with the Social Security Advisory Committee, which said: We understand that it is not possible to draw up regulations in such a way as to identify precisely those people who clearly have no intention of actively seeking work and who seek to maintain an alternative lifestyle supported by state benefits. Ever since 1986 that has been a legislative Holy Grail which the Government have been pursuing. I do not believe that they will ever find it by a legislative route. Legislation cannot foresee all cases; it cannot be defined precisely enough.

The "actively seeking work" regulations, as used at present, are creating a great deal of hardship to no practical effect, especially of late—I use those words literally—as they have been exercised since April 1994. In the period from April to December 1994, 14,472 people were disentitled to benefit compared with 4,247 in the equivalent period the year before. Does the Minister have any information of what happened to those people afterwards? That is not an idle question. One cannot judge the effectiveness of a policy without knowing what its effect actually is That is something on which the Government must undertake research and that research should be debated by us all.

I want also to support Amendment No. 41. It takes a much more sensible approach to the problems of drafting which arise in this case. It proposes to insert, in order to qualify for payment of a jobseeker's allowance under sections 2 and 3 of this Act, a claimant must be available for and seeking work". It leaves out the rather frenetic quality of "actively" which is not always easy when there is no work to seek. But it lays down in general terms the principle that people should be available for work and that they should seek it. It leaves the interpretation of that to be settled by the courts in relation to the individual claimant on the circumstances of the individual case.

I happened to be in the Chamber on 7th March last when the noble Viscount, Lord Goschen, was answering a Question on the use of mobile phones while driving. He was being pressed to make that a specific offence. The noble Viscount, in my opinion very wisely, was resisting the use of the specific offence on the ground that the law could not foresee all contingencies. For example, the late Mr. Robert Maxwell was once convicted of driving without due care and attention for using a battery razor while driving. The law cannot foresee all the various instruments that a person may use when driving. It must stick to the general principle and apply it in relation to the circumstances of the case. I was reminded of an academic colleague's explanation of why there were so many capital statutes during the 18th century. He said that the MP who demands the death penalty for stealing his turnips, never stops to think that the catastrophe which happened this year to his turnips may happen next year to his potatoes.

The problem with the Bill, and with a lot of the drafting which has been coming out of the Department of Social Security in recent years, is the attempt to specify everything in too great detail; the attempt to foresee all the contingencies. The noble Lord, Lord Renton, taught me, when replying to amendments that I moved, that the more detail one specifies in the Bill, the more often one needs to try and change it. That is why the Department of Social Security has moved into this rather frenetic pursuit of flexibility. It is an exercise in perpetual contortionism. It would have done much better to have studied the report of the Renton Committee on the drafting of legislation which I was studying at two o'clock in the morning and which I found to be extremely interesting. That committee—I quote it with trepidation in the presence of no less than two of its members—said in paragraph 10.11: too much weight should not be given to possible uncertainty about the application of general principles to particular factual situations: even where legislation is framed so as to deal with specific instances, as it generally is in this country at present, some situations are almost sure to be overlooked, thus leaving an area of uncertainty", and that has to go to the courts. The committee went on to say, The adoption of the 'general principle' I approach in the drafting of our statutes would lead to greater simplicity and clarity. We would, therefore, like to see it adopted wherever possible. We accept, however, that this approach to a large extent sacrifices immediate—though not eventual—certainty and places upon the courts a heavier responsibility in identifying the intention of the legislature when applying legislation to particular circumstances". It would be interesting to study the drafting policies of the Department of Social Security in the light of its relations with the courts over the past 20 years. I was looking last night at a work by the noble and learned Lord, Lord Scarman, English Law: The New Dimension, published in 1974. The noble and learned Lord thought then that the courts were hesitant in venturing in detail into the area of social security. He even quoted Professor Richard Titmuss as saying that in social security the law had practically nothing to offer, which is a view that practically nobody would advance now. Since then we have had a much more activist approach by courts to social security. I refer to the judgment of the noble and learned Lord, Lord Woolf, in 1990 in the social fund case. And if I may be forgiven for mentioning a sub judice case only so far as to say that it is interesting, I can refer to the case of Bate v. Chief Adjudication Officer in the Court of Appeal on 30th November last. That represents a case where the department thought that the courts had not expressed their true intention. The Renton Committee had something interesting to say about that approach also. Quoting the comments of the judge it said, These comments are the result of endeavours on the part of the legislature to ensure against the possibility that the legislation will be construed by someone, in some remote circumstances, so as to have a different effect from that envisaged by those preparing the Bill in question. As one Parliamentary draftsman has put it: 'The object is to secure that in the ultimate resort the judge is driven to adopt the meaning which the draftsman wants him to adopt, If in so doing he can use plain language, so much the better. But this is often easier said than done'". The committee slightly understated its case; I do not think it can be done at all. It is because the Department of Social Security has been so determined to try to bind the judge to adopt the meaning of the draftsman that we have this frenetic pursuit of detail which has led to this enormous growth in the use of regulations and therefore to problems about how this House may give its consent. Some conversation between the Minister and the noble Lord, Lord Renton, may be extremely helpful in avoiding future problems. Meanwhile, I make these points because this amendment is drafted in the way social security legislation should be drafted, and I am pleased to support it.

Lord Boyd-Carpenter

As I understand this group of amendments, the essential point is the desire to take out of the Bill the provision that someone who is to obtain this allowance must be "actively" seeking employment and leaving it, presumably, on the basis that all they have to establish is that they were seeking employment.

I suggest that that would be an unfortunate amendment to the Bill. Whether or not one is really seeking employment—not actively seeking, but just seeking—may be a matter of opinion. If one sent a letter saying, "By the way, if you want to employ me I am available", is that seeking employment? The essence of the Bill as it stands is that one must be actively seeking employment. To carry an amendment to that effect will be extremely damaging both to the operation of the Bill and to the understanding of it.

5 p.m.

Baroness Nicol

When the Minister replies to this debate, will he answer one or two fairly straightforward questions for the benefit of those Members of the Committee who may not know the answers? My noble friend Lord McCarthy referred to performance related pay for the staff who are to implement these proposals. Can the Minister tell us what is the measurement of performance? Is it the number of applicants or the money saved? Are targets set for them? How substantial are the rewards if the targets are achieved? Conversely, are there penalties for failure to reach the targets? I believe that in this and in subsequent debates on this Bill it is very important that we should know the answers to these questions because the attitude of the staff in implementing all these proposals will be very important indeed. We need to know how they are driven.

Lord Renton

I agree with the view expressed by my noble friend Lord Boyd-Carpenter about the true effect of these amendments, especially Amendments Nos. 2 and 4. They are of very limited scope and, as my noble friend quite rightly said, they simply raise the question of whether it is enough that there should be the seeking of employment, which is a pretty vague expression, or whether mere should be the need for the active seeking of employment.

Having said that, perhaps I may now refer to the comments of the noble Earl, Lord Russell, about the recommendations in the report of the committee on the preparation of legislation, of which I had the honour to be chairman. I was glad that he made those quotations. I broadly agree with him that we should avoid detail if it is intended merely to cover a number of anticipated hypothetical circumstances. If we try to include too much detail we will generally fail: we are pretty certain to leave something out. I agree with the noble Earl that whether we have a need for detail or not, it is as well that the intention of Parliament should be made clear by the statement of principles.

I do not have a copy of our report with me, but my recollection is—in due course I can show the report to the noble Earl—that when we have legislation that financially affects the individual citizen's rights, as in a finance Bill, and as we have here in the entitlement to the jobseeker's allowance, we have to spell out exactly what the entitlement is. That is what Clause 1 and others in the Bill attempt to do.

I am very grateful to the noble Earl, as I always am when he refers to that report. However, I do not believe that governments—dare I say it: civil servants who instruct parliamentary draftsmen—have really taken advantage of the opportunities which that report presents through its recommendations. In the particular group of amendments to which reference has been made, I do not believe that the Government can be accused of doing something that the report felt should not be done. Although I of course welcome any broad statement of principle to implement what is in the Bill, I go along with my noble friend Lord Boyd-Carpenter that as regards the particular points raised by these amendments the Government can well stand firm.

Earl Russell

Perhaps I may very briefly respond to some very generous remarks. I am not arguing with what the noble Lord, Lord Renton, said about the Bill. However, this Bill is giving a power to produce many further detailed definitions of "actively seeking work" in regulations. It was that attempt at a more detailed definition which I was describing as "frenetic".

Lord Desai

Perhaps I may say a little in support of these amendments. Quite rightly, they correct the Bill, which is based on a fallacy. That fallacy is that we have unemployment because the unemployed are not actively seeking work. That is not the case. We have unemployment because there are no jobs for the unemployed to have. It is very peculiar that it is not enough to be seeking work but that one should be actively seeking work.

How does one define "actively"? If I sit here and listen to noble Lords, am I being very active? If I had to go to an office and prove that I am being active while I am sitting listening, people may not agree. I may be very actively seeking work sitting here and making many applications for work, but that may not satisfy someone sitting in a jobseeker's allowance office.

We shall get into more and more detailed regulations. The point is that, no matter how actively one asks a person to seek work, he or she is not going to find it if there is no work to be had. Therefore, rather than worry about the idea that somehow it is a lack of effort on the part of the unemployed which is the cause of this problem, one should be tackling the cause of unemployment in some other way.

This clause is not about the fact that people will get more jobs if they actively seek work, but, as many Members of the Committee have said, it is really about saving money. We are cutting people off for not seeming enthusiastic enough in finding work. That requirement will be screwed up tighter and tighter because there will be foolish attempts to save money and at the same time there will be clamorous demands for cutting taxes or something like that. It will not save very much money, as my noble friend pointed out, because the money saved on this particular benefit will have to be paid out elsewhere. This provision will not create any more jobs than there are already but an even bigger bureaucracy than we already have in this field, and that is bad enough.

Lord Henderson of Brompton

I am very happy to be speaking immediately after the noble Lord, Lord Desai, as he may well remember that a few years ago in this House, when the noble Lord, Lord Henley, was speaking for the Government on social security matters, he said of him and me that we were the only two Peers in the House apparently who were against the term "actively seeking work". He paused in case anyone wished to join us in our lonely position. He then went on to further business. Therefore, it is altogether appropriate that I follow the noble Lord.

The citizens advice bureaux, which are highly respected in this House, are very unhappy about the phrase "actively seeking work" and the way in which since, I believe, 1989 it has been turned again and again. That was a metaphor used by the noble Lord, Lord Desai. It has been, and continues to be, the turn of the screw. It is a tightening up all the time through regulations of one sort or another which are particularly intrusive into people's private lives. Therefore, for that reason alone, the measure should be resisted.

I am very unhappy with the evidence which the citizens' advice bureaux have accrued on this subject which proves indisputably that we should not persist in the turn of this screw. If only the Government would agree to respect human beings who are unemployed and who will, indeed, seek work conscientiously. The Government should not presume that they will not do so if that screw is not turned.

In my brief Second Reading speech, I said that I was increasingly worried about the policing of society. One of the things that I find most disgusting is the way in which the unemployed are increasingly being policed more and more repressively.

The National Association of Citizens' Advice Bureaux states that the actively seeking work formula has been used in, an increasingly authoritarian regime at the jobcentre which has little to do with helping unemployed people find work". I agree with that. However, in the form that it will take if the Bill is enacted, the actively seeking work formula means that the burden of proof on the claimant is heavily augmented. It has to be realised that the test whereby a claimant has to prove that he has been seeking work actively applies more than once. It has to be proved every week, so I am told. What a burden that is on a person who may have to seek work for miles around and who will have very little money with which to pay fares to and from the places where he is seeking work. What an intolerable burden it places on employers also. Surely the Government Benches might be sympathetic to the point of view that I am now putting forward because employers already find it extremely onerous to have to stamp chits to say that an unemployed person has been seeking work there when those employers know perfectly well that they do not have any places available. Apparently, they have to go through that rigmarole every week for every unemployed person who actively seeks work from them. For those reasons, I support the amendment and hope that it will be put to a Division.

Finally, the National Association of Citizens' Advice Bureaux, which is very experienced, is certain that the Jobseekers Bill, with this provision included, will further increase the surveillance —or what I call the "policing"—of all unemployed people and will inevitably lead to a further rise in the number of people who fall foul of the actively seeking work test. Do we really want that to happen? I suggest that we do not.

Baroness Williams of Crosby

I am pleased to follow the weighty words of the noble Lord, Lord Henderson of Brompton, on the issue of how we treat unemployed people and what assumptions we make about them. Almost everything turns on the way in which the concept of actively seeking work is to be interpreted and on the independence and fairness of that judgment. That leads me to ask the Minister three questions.

The first concerns the reference made in the memorandum to which the noble Lord, Lord Henderson, referred which states that the definition of "actively seeking work" will be that work must be actively sought in every single week. No reference is made to the possibility of illness or to other responsibilities that fall upon individuals even when they are unemployed. It is also stated that "actively seeking work" must mean availability, for a minimum of 40 hours a week". Nothing is said about a possible maximum. Therefore, everything will turn on whether an individual is judged fairly on the question of whether he or she is actively seeking work. The first question then is: what other conditions are to be attached to the definition of that crucial phrase? A great deal will turn on how the phrase is interpreted.

The second question is: who will adjudicate in an appeal? In an earlier reply to my noble friend Lord Russell, the Minister said that there would be additional adjudication officers. However, when one reads the memorandum from the two departments, it is clear that greater reliance is to be placed on what are called "front-line employment officers" when making those decisions. It is also stated that training in adjudication will not be required for those front-line employment officers, although some will make crucial decisions. I am sure that noble Lords will take on board the point that I am trying to make as best I can—that the adjudication officer's independence is crucial and that we need an absolute assurance that his or her pay and the judgment made about his or her work will be independent of the decisions made.

My third point about the actively seeking work test also relates to the later amendments concerning the jobseeker's agreement. It was touched on by the noble Lord, Lord Henderson of Brompton. I refer to the question of whether or how the claimants will survive during what is today an average period of 20 weeks before an appeal is heard. One of the things of which we are most proud in this country is that people are held to be innocent until proven guilty, but in this Bill we shall be condemning people to 20 weeks without benefit until such time as the final adjudication is made. My noble friend Lord Russell asked the germane question: on what are they supposed to live during that time?

I conclude my brief intervention on this amendment by saying that as a Member of your Lordships' House who spends half her life working in the United States, I have seen the devastating consequences that occur when people who are unemployed because they cannot find jobs (because their education, training and circumstances do not fit them for those jobs that are available) are refused all forms of assistance and help by society. Some of those people turn extremely sour. We are concerned in this country about maintaining law and order. Therefore, I ask the Committee to consider long and hard whether, if we make benefits impossible to obtain for genuinely unemployed people who want to be employed, we are not driving those people in a direction which all of us will come to regret.

5.15 p.m.

Lord Mackay of Ardbrecknish

I should start by saying that people who claim the jobseeker's allowance will be doing so because they want to get back to work. We should hold that in our minds not only for the rest of this debate, but for the rest of this Committee stage.

The effects of the amendments would be to undermine the importance of a jobseeker's effort to find work. That point was underlined by my noble friends Lord Boyd-Carpenter and Lord Renton. Indeed, these are negative amendments which would not be in keeping with the principles that we are trying to establish in the jobseeker's allowance, which is an attempt to help more people back into jobs. It is a current condition of entitlement to benefit for unemployed people that the claimant should seek employment actively. That is an important principle and we intend to carry it forward into JSA. It is essential that jobseekers should maintain regular contact with the labour market, and the actively seeking employment test helps to secure that link.

In Clause 6 we seek to define what the term "actively seeking employment" means. Clause 6(1) provides a definition of that term, while subsection (3) (a) details our intentions for the regulations to be drawn up under Clause 6. Those regulations will outline the steps that will be regarded as "actively seeking employment" steps. At present the list focuses on steps which amount to an actual job search. We shall be extending that list to include steps which improve a jobseeker's employability, such as drawing up a CV or obtaining references.

Some of the points that were raised by the noble Baroness, Lady Williams, relate to Clause 6 and will be dealt with in some detail when we come to the amendments to that clause. So perhaps I can invite her to contain herself until we reach some of those details, when we will go over them.

The general point—I am not sure that I want to get into an academic discussion about the form of legislation—raised as usual with great interest by the noble Earl, Lord Russell, was about how we frame legislation—whether we try to cover all eventualities or put out a few broad principles and leave it at that. The simple fact is—we will see it as the Bill progresses—that opposition parties will always try to argue from the particular to the general. They will always pick a case and say, "There is a case. You should be making sure, oh Government, that your secondary legislation or your primary legislation takes it into account". To think that we can just have nice broad principles, and hope they will be enacted in the way that we think, is not the way the world now works. Perhaps it would be less complicated if that were the way the world worked, but having been at the receiving end of piles of examples: why is this person not receiving benefit? Why is that happening? Why is the next thing happening? In other words, trying to argue from the particular to the general, and I do not see any great prospect of us managing to devise legislation, unless we change many other things and the way our country looks at such things, including, I suspect, going to court—

Lord McCarthy

I do not follow the Minister. Is he saying that because, when we give him particular examples of the whole thing breaking down, he cannot find any general answers, he is not going to give us any answers? Why cannot he tell us why the system broke down in that case?

Lord Mackay of Ardbrecknish

The noble Lord is making my point. He is reinforcing the fact that those are the kinds of questions that he wants to ask me, and he wants me to reply in detail. That is what governments try to do via secondary legislation which is detailed and tries to ensure that the lines we draw catch the various parts of the human condition.

Baroness Hollis of Heigham

The Minister is therefore confirming our worst fears. What he is offering us is ideology unaffected by information, fact or experience.

Lord Mackay of Ardbrecknish

I am obviously not explaining my position correctly. I am trying to counter the suggestion made by the noble Earl, Lord Russell, that we should have legislation that embodies the broad principle and leave the detail to be dealt with by someone else. I am merely saying that I am usually attacked because the detail does not do all the things that the Committee would like it to do. Noble Lords want more detail, or they want the detail to shift an inch this way or that way. I see the noble Lord, Lord Bruce, looking at me, so perhaps I should remember that now it is a centimetre this way or a centimetre that way.

While it may be an interesting common room discussion, the reality is that modern legislation has to try to be complicated.

Earl Russell

If I might, I should like to concede that I recognise that the Minister is making a serious point. If he would like me to meet him halfway, and outside the Chamber, I should be happy to do so.

Lord Mackay of Ardbrecknish

The noble Earl has indicated neither the time nor the weapons. Perhaps I may return to the amendments. As I have said clearly, we believe that the principles currently in legislation of actively seeking work should be carried into the new legislation. The amendments would remove the word "actively" from the phrase "actively seeking employment" as it occurs at various places in the Bill.

It is clear that we wish people claiming JSA to be active in their job search. Present legislation uses the phrase, "actively seeking employment". If we dropped the word "actively" in moving to JSA, jobseekers, the Employment Service, the public, and, perhaps, ultimately the courts, could all be forgiven for supposing that we meant to signal by that some dilution of the condition; some lessening of the need for the jobseeker to go out to look for work, to try to take steps that would find him work. In practice, the amendments would mean a watering down of the principle that jobseekers should make every effort to get back to work.

I think it was the noble Lord, Lord Desai, who suggested that the real problem was that there were no jobs. Each year about 6 million jobs become vacant in this country. On any day, there are about 300,000 vacancies. About one-quarter of people who become unemployed leave unemployment within a month; about half leave within three months; about two-thirds leave within six months. Since the end of 1992, unemployment in this country has fallen by over 600,000. While of course I appreciate that, especially in certain areas, there are difficulties, there are still a lot of jobs available month after month, and it is right that in return for the JSA the jobseeker should be encouraged actively to seek work. That is what we wish to see in the Bill, and that is what I am invited to remove from the Bill thus making it rather more passive, so that the signal given by this place to the outside world might be "it doesn't really much matter whether you look for work or not". We cannot do that.

I know that many Members of the Committee opposite do not occupy the real world, but in the real world that I occupy, and the real world that most people to whom I have talked occupy I am afraid that there are people who have no intention of working very hard to find a job. Indeed, I can think of a few families who have made it their life's work to act like that, and it is very, very annoying for their friends and neighbours who go out to work and who work jolly hard. We should not live in a totally rose-tinted world where some pressure is not needed on some people to ensure that they actively look for work.

The figures I gave in response to the noble Lord, Lord Desai, indicated that many people find work month after month. Many people are on the register for only a month or two and back to work they go.

Baroness Williams of Crosby

I am sorry to press the Minister on the issue of the real world, but just as the real world contains some people who are not seriously seeking jobs—of course we know that what he says is true of a minority—he recognises that in the real world there are officials and, for that matter politicians, who can allow their personal biases to get the better of them. I shall not pursue the issue of adjudications with regard to appeals and the way adjudication officers are rewarded if the Minister will be kind enough to tell me that he will allow me to raise those issues again when we reach Clause 6, because they seem also to be of the essence of the amendment.

Lord Mackay of Ardbrecknish

In fact what I invited the noble Baroness to be patient about was the first series of items she mentioned which pertained in particular to Clause 6. I shall turn to some of the specific points raised by her and others in the course of the discussion about other matters which do not arise later in the Bill.

I was asked about the independence of adjudication officers. They are independent. They take their advice about their performance from the statutory, independent Chief Adjudication Officer. There is no link between the performance targets of the Employment Service and the adjudication officers' decisions.

Public sector pay—the noble Lord, Lord McCarthy, and I have jousted about that on a number of occasions at the Dispatch Box—is related to the person's contribution to the organisation's performance. The Employment Service's annual performance objectives are translated into local office standards. Those are reflected in the individual's work-related objectives. In the case of an employment officer, they will include, for example, placings into work and the accuracy and speed of benefit payments. There is not, and will not be, any correlation between conditions of benefit for a jobseeker and an employment officer's pay.

Baroness Hollis of Heigham

Perhaps I may press the Minister on that point. Are we wrong therefore in believing that in April 1994 the target for disqualifying people from benefit was doubled to 150,000 per year? Does not a target exist for disqualifying people from benefit, which has been doubled in 12 months?

Lord Mackay of Ardbrecknish

I have said what I have said. I shall check that, and we shall no doubt be able to return to the point later. I shall answer the noble Baroness when I have the detail of the accusations she has just made.

On the training of employment advisers, staff act as adjudication officers, and those who act as adjudication officers will be trained. Employment officers, as I think I said in the previous debate, have their own training programmes. I have been to some. They are thorough and impressive. It is currently planned that about 15 days' training will be given to fully experienced staff. I hope that assures Members of the Committee that we are at one in wanting to ensure that the staff who run the new system are properly trained and have the kind of training, skills and knowledge that will enable them to do the job properly and fairly. There is nothing between us in the need to do the job fairly.

The Employment Service, in its annual performance agreement for 1995–96 with the Secretary of State, has a target of 185,000 submissions to adjudication, to which the noble Baroness, Lady Hollis, referred, where there is an arguable case with supporting information to show that the claimant is not available for, actively seeking or willing to accept work". I emphasise that there must be an arguable case with supporting information. The target is not, as has been mischievously suggested, a target for disallowance. It is designed to ensure that the cases of people who do not appear to be entitled to benefit are referred in good order to adjudication. I believe that to be a sensible way to proceed. There are targets in respect of many other aspects of the system—

5.30 p.m.

Lord McCarthy

The Minister would not deny that the figures show that the number of disputed cases which go to adjudicating officers is rising significantly.

Baroness Hollis of Heigham

It has doubled.

Lord Mackay of Ardbrecknish

I must check before using the phrase "rising significantly". I shall return to that matter, given the figures as they stand. They may well have risen; but frankly, I do not suppose that anyone would complain if officials were ensuring that the system was running properly and fairly. It must be run fairly for the individual—and that is important—but it must be run fairly for the taxpayers who, at the end of the day, foot the Bill for the whole benefit system—

Baroness Hollis of Heigham

I hope that the Committee will forgive me if I push this important point once more.

The Minister appears to have failed to understand that the Employment Service has been given a target which was doubled between 1993–94 and 1994–95. That has been significantly increased again to a figure of 185,000. It is a target for referring cases to adjudication in the expectation that such claimants will be denied benefit. In other words, the employment officials are being encouraged, pressed and targeted to dispute claims and therefore to deny people benefit. That target has been doubled as an act of policy.

Lord Mackay of Ardbrecknish

No, they are being asked to put to adjudication any case where there is an arguable case with supporting information to show that the claimant is not available for, or actively seeking or willing to accept, work. I am amazed that the Opposition believe that trying to do that is wrong and iniquitous.

Perhaps I may return to the numbers in order to ensure that the noble Baroness does not repeat them. The year 1994–95 was the first that an adjudication submissions target was set and it was set at 135,000. It has been set at 185,000 for 1995–96. That is not doubling; it may be an increase but it is not doubling. I hope that answers the question which the noble Baroness asked—

Lord Beaumont of Whitley

What is the point in having a target? Surely the courts and the adjudication system exists to decide what is right and wrong in various cases. If one starts setting targets and choosing numbers, one immediately puts forward a presumption of what will be found, which is against abstract justice.

Lord Mackay of Ardbrecknish

I regret to disagree with the noble Lord. Targets in the various agencies of government, in the social security service, have an important part to play. We are discussing one particular target but there are others relating to the speed with which cases are dealt. I am sure that the noble Lord will not dispute the fact that it is good to try to have targets that officials meet as regards the time they take to deal with cases. I am glad that he indicates, "Certainly not". It is important that we lay down targets to ensure that the system works fairly and effectively—

Earl Russell

I understand the Minister's point that this is a referral to adjudication and not a disentitlement. Does he agree that it is a little like giving the police a performance target for the number of people prosecuted for speeding? Does he understand that to many of us this appears to resemble a corrupt practice?

Lord Mackay of Ardbrecknish

We must disagree about that. I do not believe that it is a corrupt practice because that assumes that the officials who carry out the work are carrying out some kind of corrupt practice. That is most unfair to them. They do a good job and they appreciate the importance of all the targets that are being used in order to improve the service provided by the Employment Service or by the benefit agency in general terms.

We have drifted away from the point about "actively seeking". Amendment No. 65 would remove the word "actively" from Clause 6(4)(b), which provides the power to require jobseekers to provide evidence of their attempts to seek employment. That is an important provision.

As I have explained, it is a condition of entitlement to JSA that jobseekers should seek employment actively. It is an important principle and we intend to continue with it. We believe that Clause 6(4) (b), providing as it does the power for regulation to require jobseekers to attend at a certain place and time and to provide information about their availability for work and the efforts that they have made to find work, makes clear to every jobseeker what he or she is expected to do. That will enable us to monitor whether jobseekers are continuing to meet the "availability" and "actively seeking employment" conditions, in addition to offering guidance and help to them in their efforts to find work.

I do not believe that the amendment should be accepted. It may not change much of the power that we have under Clause 6 but it certainly would water down the message that jobseekers should make every effort to return to work. That would not be constructive or worthwhile and it would not meet the approval of the country at large or all those people who are genuinely seeking work. I hope that the amendments will be withdrawn; but if the invitation of the noble Lord, Lord Henderson of Brompton, that we divide rules the day, I hope that my noble friends will support me in the Lobby.

Lord McCarthy

The noble Lords, Lord Renton and Lord Boyd-Carpenter, who spoke in support of the Government, made a much better case than that made by the Minister. They merely asked us to believe that if our amendment were passed, everything would fall away and that people could lie on their backs, receive unemployment benefit and that there would be nothing to stop them. To those noble Lords, the word "active", which most of those in the Employment Service have never heard of, never seen, never introduced and never needed, was the critical word—take away "active" and all is lost. That is nonsense, but it has a certain surface and plausibility.

At the beginning of the Minister's comments he toyed with that defence. He told us, first, that most of the unemployed, or a great number of them—he did not agree at the end—wished to return to work. At the end of his speech he told us about those who did not. The Minister then said that the Government will undermine "it". I believe that he meant their wish. He said, "We will undermine their wish by taking away this particular test".

It is a strange idea that all those people should be lying around saying, "Now I won't have anything to do. I don't want to go back to work; I previously did, but I have lost my desire to work because I happen to know that they have taken a word out of the Bill". The Minister was much closer to the truth when towards the end of his speech he began to explain clearly—more clearly than we did—precisely how the Government see the Employment Service operating. It is there to test people. It is there to find people wanting. It is there in the figures, to which we shall return later, that year by year, under the crucial use of that phrase, more and more people find that their benefit is disallowed. That is the object of the exercise. That word is a crucial part of that exercise and that is why I shall divide the Committee.

5.39 p.m.

On Question, Whether the said amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 66; Not-Contents, 108.

Division No. 2
Acton, L. Howie of Troon, L.
Addington, L. Hylton, L.
Airedale, L. Jay of Paddington, B.
Archer of Sandwell, L. Jeger, B.
Avebury, L. Kilbracken, L.
Beaumont of Whitley, L. Lawrence, L.
Brooks of Tremorfa, L. Listowel, E.
Bruce of Donington, L. Longford, E.
Carter, L. Lovell-Davis, L.
Cocks of Hartcliffe, L. McCarthy, L.
Darcy (de Knayth), B. McIntosh of Haringey, L.
Dean of Thornton-le-Fylde, B. Methuen, L.
Desai, L. Milner of Leeds, L.
Diamond, L. Monkswell, L.
Donaldson of Kingsbridge, L. Murray of Epping Forest, L.
Dormand of Easington, L. Nicol, B.
Dubs, L. Northfield, L.
Peston, L.
Eatwell, L. Redesdale, L.
Falkender, B. Rochester, L.
Falkland, V. Russell, E. [Teller.]
Fisher of Rednal, B. Sefton of Garston, L.
Freyberg, L. Shaughnessy, L.
Gallacher, L. Simon, V.
Gladwin of Clee, L. [Teller.] Stallard, L.
Gould of Potternewton, B. Stedman, B.
Graham of Edmonton, L. Stoddart of Swindon, L.
Halsbury, E. Thomas of Walliswood, B.
Hamwee, B. Tordoff, L.
Hanworth, V. White, B.
Haskel, L. Williams of Crosby, B.
Henderson of Brompton, L. Williams of Elvel, L.
Hollis of Heigham, B. Winchilsea and Nottingham, E.
Hooson, L.
Addison, V. Dean of Harptree, L.
Aldington, L. Denton of Wakefield, B.
Ampthill, L. Downshire, M.
Astor, V. Ferrers, E.
Banbury of Southam, L. Fraser of Carmyllie, L.
Belhaven and Stenton, L. Gage, V.
Birdwood, L. Gardner of Parkes, B.
Blaker, L. Gisborough, L.
Boardman, L. Goschen, V.
Boyd-Carpenter, L. Gowrie, E.
Brabazon of Tara, L. Hailsham of Saint Marylebone, L.
Braine of Wheatley, L.
Broadbridge, L. Hamilton of Dalzell, L.
Brougham and Vaux, L. Harding of Petherton, L.
Cadman, L. Hayhoe, L.
Caithness, E. Henley, L.
Campbell of Croy, L. Hogg, B.
Carnegy of Lour, B. HolmPatrick, L.
Chelmsford, V. Hothfield, L.
Chesham. L. Howe, E.
Clanwilliam, E. Hylton-Foster, B.
Clark of Kempston, L. Inglewood, L.
Cockfield, L. Kinnoull, E.
Coleridge, L. Kitchener, E.
Cork and Orrery, E. Lauderdale, E.
Courtown, E. Layton, L.
Cranborne, V. [Lord Privy Seal.] Leigh, L.
Lindsay, E.
Crickhowell, L. Lindsey and Abingdon, E.
Cross, V. Long, V. [Teller.]
Cumberlege, B. Lucas, L.
Dacre of Glanton, L. Lyell, L.
Davidson, V. McColl of Dulwich, L.
Mackay of Ardbrecknish, L. Rawlings, B.
Mackay of Clashfern, L. [Lord Chancellor.] Rennell, L.
Renton, L.
Macleod of Borve, B. Renwick, L.
Malmesbury, E. Romney, E.
Marlesford, L. Saint Albans, D.
Milverton, L. Savile, L.
Montgomery of Alamein, V. Seccombe, B.
Moyne, L. Sharples, B.
Munster, E. Skelmersdale, L.
Murton of Lindisfarne, L. Stewartby, L.
Napier and Ettrick, L. Strange, B.
Nelson, E. Strathclyde, L. [Teller]
Norrie, L. Sudeley, L.
Swansea, L.
Northesk, E. Thomas of Gwydir, L.
O'Cathain, B. Trumpington, B.
Orr-Ewing, L. Tugendhat, L.
Oxfuird, V. Ullswater, V.
Pearson of Rannoch, L. Vivian, L.
Prior, L. Wyatt of Weeford, L.
Pym, L. Wynford, L.
Quinton, L. Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

5.48 p.m.

Lord McCarthy moved Amendment No. 3:

Page 1, leave out line 13.

The noble Lord said: This amendment directs itself to the major new innovation in this part of the Bill; namely, the jobseeking agreement. Under the Bill as it stands, in order to qualify for benefit, an unemployed person, among all the other things which he must do which I mentioned in relation to the last amendment, must enter into a jobseeking agreement which remains in force at the time of the benefit. We are proposing to leave out line 13 on page 1 of the Bill which will mean that there will be no requirement that a person must sign a jobseeking agreement as a condition for receiving benefit.

We are not saying that there should not be a jobseeking agreement. After all, the Government are very fond of telling us—and they are right—that the idea of a jobseeking agreement came from the long-standing practice of a back-to-work plan. Often they speak as though the jobseeking agreement is no different from the back-to-work plan. If the Government want to call the back-to-work plan a jobseeking agreement, that is all well and good. We are not saying that that should not exist. We are not saying that all the other conditions which must be satisfied in order for a worker to claim benefit of any kind should not still be in the Bill.

Again, I make no apology for the fact that the idea comes out of the work and the research carried out by the Citizens' Advice Bureau. In its publication, which I hope the Minister has to hand, entitled In Search of Work, it has made it its business to catalogue the consequences of the present situation as regards the way in which the back-to-work plans have been developed; for example, the waste of time, the inappropriate jobs and the annoyed employers—indeed, all the factors that I sought to place before the Committee during discussion on the previous amendment.

The Citizens' Advice Bureau says that, if we take the back-to-work plan and call it a jobseeking agreement, empower employment officers to give formal directions for the carrying out of such a plan and, unless that agreement is fully met, make it automatic—because that is what it means—that benefit will be denied, thus forcing the individual worker into the adjudication process, then we will further exacerbate the problems of dealing with long-term unemployment which we discussed previously.

I do not know whether many Members of the Committee remember the stories about the Ministry of Labour as it was before the war. In a study of the Ministry of Labour at the time, Freedland and Davies show that immediately before the war the ministry was carrying out practices which are very similar to those now before us; in other words, it had its version of a back-to-work agreement. A distinguished member of the Ministry of Labour took unpaid leave for six months and went around the country doing what sociologists would now call "participant observation", presenting himself as a member of the unemployed. He wrote out the results afterwards showing what was happening in the employment offices of the ministry, and a Conservative Government changed the way in which that department worked. Would that such simple research could have a similar effect today! I say that because there is research which reveals the same situation. Therefore, I beg to move.

Earl Russell

When the noble Baroness, Lady Turner of Camden, spoke on Second Reading, she said that the jobseeker's agreement was not an agreement. That is the hub of the whole argument. A claimant has to enter into a jobseeker' s agreement on pain of losing benefit. If that was an abduction case, that would count as evidence of duress. The penalties of not entering into an agreement are so severe that it seems to me that the claimant will, in effect, have to enter into whatever agreement the employment officer demands.

I am not happy about anyone being so completely under the power of another. I am certainly not happy about having conditions which are that fundamental to a person's survival being made that far down the line. I know that the Minister will say that the situation is subject to review by the adjudication officer, and I shall not go into details because we have done so before. However, what worries me is the imposition of unreasonable conditions.

I shall give the Committee one example which has actually happened. If someone is homeless, it is part of proving that he is actively seeking work to prove that he is looking for accommodation. That is fair enough; indeed, I do not believe that anyone would argue with it. But what appears to those concerned to be proof that someone is seeking accommodation may vary.

There was one case which happened in London this past winter. It involved someone who was homeless and who was ruled not to be looking for accommodation because he had a dog which he would not give up. Because that person would not abandon his dog he was deprived of all right to benefit. I find that absolutely outrageous. It is an exercise of arbitrary power, without any warrant, which one might successfully appeal against under the present law. But whether one could successfully do so under the new law is something that we simply cannot tell until we know what criteria the adjudication officer is to use. Moreover, as such criteria will be in the regulations, which are not before us, we cannot make a judgment.

Here we have someone "drest in a little brief authority" who can sign away someone else's future. Alternatively, because many employment officers are not the type who like to be "drest in a little brief authority", we may have someone who was previously capable of enjoying an excellent relationship with claimants but whose relationship with them is completely ruined by the power that he now has to use. The noble Lord, Lord Acton, told me that his great-grandfather's actual words were: "Power tends to corrupt". It does not always do so, but the risk that it may is very great. The amount of power which is being given to the employment officer is such that I would not give to anyone on earth. I am happy to support the amendment.

Lord Dean of Harptree

It seems to me that the jobseeker's agreement is an essential part of the Bill. I would very much regret to see it removed. I take the point just made by the noble Earl, Lord Russell, that the parties to the agreement may not be entirely equal. However, the fact is that there is an agreement. It is a positive matter which strikes me as being more effective than the present signing-on arrangement, which is often a rather negative procedure. At least in this concept there has to be an agreement between the Employment Service—and I assume its good will and intention to do everything it can to assist the unemployed person to find a job—and the person who is seeking employment. As I understand it, the agreement is a continuing one. It seems to me that it has the makings of a great improvement on the present rather negative signing-on arrangement. I hope that my noble friend the Minister will resist the amendment.

Baroness Williams of Crosby

The point made by the noble Lord, Lord Dean of Harptree, is exactly the nub of the issue that we are now discussing. If the jobseeker's agreement is indeed a valid and voluntarily entered into agreement between an employment officer and a jobseeker, then, as the noble Lord suggested, it might be a very valuable and constructive way for people to go back into work. I believe that all of us on both sides of the Committee strongly approve of that aim.

However, the problem is whether that is the kind of agreement that it will be or whether it will be the kind of agreement referred to by my noble friend Lord Russell—namely, a coercive one with the word "agreement" having Orwellian overtones and not meaning what it stands for. Quite sincerely, that is the point about which a number of us are probing the Minister.

On 3rd April, when responding to questions on the issue, the noble Lord, Lord Inglewood, referred to the fact that jobseekers have different paths and different qualities. That was certainly music to many ears because it is right that jobseeker's agreements should match the individual capabilities, talents and experience of the jobseeker. However, those of us who have read the memorandum from the two departments carefully are more frightened now than we were before about what is constituted within that agreement. For example, it looks as if one of the questions that jobseekers may be asked to respond to is: "What is the lowest wage you will accept for a job?" If that is correct, it would remove the whole basis of a free market because there cannot be an open agreement reached when one side has already had to declare in advance the lowest possible reward that he will accept and the other side has not had to give any information whatever.

The memorandum indicates that there will also be provision for just how long someone can insist upon trying to get a job in the area for which they are qualified and trained. We spend thousands of pounds of taxpayers' money on training young doctors, young architects, skilled craftsmen and the like and we are now saying that as little as seven days may be laid down in a jobseeker's agreement as the time within which he can seek jobs for which he is qualified and not be forced to become a dishwasher. A dishwashing job is an honourable job but whether we really want people who have been trained for many years to take such jobs is an open question and yet the jobseeker's agreement leaves that question entirely in the hands of an employment officer. However well disposed he or she may be, this puts a whiphand with the bureaucracy and it amazes me that any Conservative Government, of all governments, should so readily accept that.

I find the jobseeker's agreement, if I may say so, the most ambiguous, the strangest and the most misleading of all the parts of this troubling Bill. I hope that Members of this Chamber will consider carefully before dismissing this amendment because we could reframe it in terms of a genuine agreement reached voluntarily by both sides. Such wording would certainly lay many of my fears to rest—like the wording used by the noble Lord, Lord Inglewood, at Second Reading—but certainly the memorandum does not bear out that interpretation and puts a much narrower and much more coercive slant on the whole concept of the jobseeker's agreement.

6 p.m.

Lord Mackay of Ardbrecknish

This amendment would remove one important part of the jobseeker's allowance proposal that we are bringing before the Committee. It would remove the requirement that jobseekers should draw up and agree a jobseeker's agreement in order to receive a jobseeker's allowance. The agreement is a central feature of JSA. It will ensure that all claimants understand from the outset the conditions of entitlement to JSA. This is not the case at present and too often people are unaware of or misunderstand what is expected of them. The agreement is also a vital step in helping each individual decide, with the Employment Service, the best way for him or her to look for work. Making the agreement a condition of benefit ensures that each jobseeker will get the individual attention that he deserves.

The agreement will improve understanding of the labour market conditions of JSA by bringing them together in one place. It will be a record that the individual and the Employment Service can consult. I was not entirely sure whether the noble Lord, Lord McCarthy, was saying that if only I agreed to make this voluntary, he would be quite happy with that. Indeed I think he mentioned the current voluntary back-to-work-plan which the vast majority of jobseekers already complete, I presume because the vast majority see the benefit in doing so. I believe this amendment would deprive the jobseeker of an opportunity to focus on his best route back to work. This would damage the intention of the reforms, which is to maintain the individual's focus on the labour market.

We will discuss more of the detail of this matter when we discuss Clause 7. At the risk of repeating what will be said later, I wish quickly to outline some matters in order to answer one or two of the points that were made by the noble Earl, Lord Russell, and the noble Baroness, Lady Williams. Each agreement will set out what the jobseeker has agreed to do to meet the availability for work and the actively seeking employment conditions of JSA which will be contained in regulations made under Clause 6 of the Bill.

If the employment officer and the jobseeker cannot reach agreement—this perhaps answers the point made by the noble Earl—then regulations will provide that the proposed agreement can be referred at the instigation of either party to an independent adjudication officer. That officer will determine whether or not the proposed terms and conditions would allow the jobseeker to meet the availability and actively seeking employment conditions, and if it is reasonable to expect the jobseeker to have to comply with them. If the jobseeker is not content with the adjudication officer's determination, the intention is that the regulations will enable him to ask for his case to be reviewed by a second officer. If he is still dissatisfied, he can appeal to the social security appeals tribunal.

Therefore I do not believe that it is quite as coercive a document as perhaps we were being frightened into believing. I believe this document and this agreement are an important part in helping people back to work, which is certainly what we in the Government are trying to do. We are trying to help people find ways back into employment. We believe this agreement does that. I hope that with my explanation the noble Lord, Lord McCarthy, will withdraw his amendment but if we wish to maintain the record of the Committee—we have had two Divisions on the two amendments we have discussed so far—and if we have a Division, I hope that my noble friends will support me.

Earl Russell

The Minister could go quite a long way to reassure us on the ground that we have been covering if he could give us an assurance that a claimant who is not satisfied with the jobseeker's agreement he is asked to sign would continue to enjoy benefit pending the hearing of the appeal to the adjudication officer, and if he could tell us that adjudication officers in future may be able to get through these cases and have time to hear them properly in rather fewer than the 22 weeks, which the Minister referred to as the present duration. Those two points are vital; after that we can begin talking.

Lord Henderson of Brompton

I wish to say a brief word on this. I strongly support the words of the noble Earl. I think that what he suggests would go a long way to ease one's anxiety. I also believe that it would go a long way to relieve our anxiety if the word "agreement" was replaced by something more suitable. After all, we have heard from the Minister that this so-called agreement is going to adjudication. If something is adjudicated upon and one side does not agree but nevertheless has to abide by, and does abide by, that adjudication, it does not necessarily mean that he agrees with it. It is a judgment which has been imposed upon him. Therefore "agreement" is simply not a suitable word. If the Minister would consider substituting something which is more truthful than the word "agreement", I believe that would help a great deal.

Lord Swinfen

Perhaps my noble friend should consider the use of a jobseeker's plan or a jobseeker's planned search because obviously this is a proposal between the agency and the individual seeking a job as to how best he can find a job. I do not think the word "agreement" is right. I entirely agree with the noble Lord, Lord Henderson, on that.

Lord Rix

I have a question for the Minister that I pose wearing my British actor's Equity hat. Will actors seeking employment be made to enter into this jobseeker's agreement? As I am sure the Minister is aware, many actors can be out of work for long periods while actively seeking employment. I have never yet known a Jobcentre help an actor to obtain such employment. Therefore I am interested to know the wording that would be used in that particular agreement.

Lord Mackay of Ardbrecknish

I am afraid I have to admit to the noble Lord, Lord Rix, that I do not know a great deal about the lifestyle of actors other than what I sometimes read in the more popular press and I am sure that that represents the lifestyle of only a minority of actors. We are getting into the problem of detail. It is difficult to go into detail as regards hypothetical cases. However, if such an actor were to claim benefit, in his agreement his jobseeking would outline what he might do. I concede that there might not be too many advertisements for actors in Jobcentres. However, I believe there may occasionally be some. It perhaps depends on the grade of the actor. However, the top ones are probably earning so much money that I suspect they would not qualify for any of the benefits that we are discussing. Obviously going to theatrical agents or the like would be the way that an actor would actively look for work. I believe it would be perfectly acceptable for that to be included in an agreement. However, the person will have to sign the agreement. I believe that is how he will be able to indicate that he is actively seeking work.

I say in reply to the noble Earl that all vulnerable groups will have access to hardship payments immediately. I believe he referred to someone who was not prepared to sign an agreement and who wanted to get a second opinion. Others will have access to hardship payments after two weeks but the vulnerable groups will have it immediately. I hope that answers the question that he posed to me.

Earl Russell

I am grateful to the Minister for that answer. However, can he explain to me how one can be disentitled to a means-tested benefit without experiencing hardship?

Lord Mackay of Ardbrecknish

We are now beginning to go into hypothetical cases. I presume that the reason that someone does not wish to sign an agreement is one of principle. I would hope that we would then be able to conclude a second opinion quickly. The option is available. Members of a vulnerable group can be paid immediately under the hardship payments. For those who are not in a vulnerable group the period is two weeks. We believe that people ought to sign an agreement. We do not believe that they ought to be able to spin out not signing the agreement.

Lord McCarthy

I am beginning to get the measure of the noble Lord. He does not like being asked about hypotheses and, even more, he does not like being asked about detail. So we have to get between a hypothesis and the detail.

The noble Lord, Lord Dean of Harptree, does not seem to have heard of a back-to-work plan. He seems to think that the Employment Service works on the basis that you just sign on. I shall not say what it did, but it certainly does not work on that basis now. A lot more than signing on goes on now. There is a back-to-work plan. Much of the back-to-work plan is analogous to what the Government say they want to do with their new agreement. We do not see why that should be imposed by law, by fiat, through this Bill on the poor unemployed person. That is one of our main differences.

Before I come to what the Minister said, I can answer the question of the noble Lord, Lord Rix. After seven days the noble Lord, Lord Rix, would be asked to go and wash up or dig the roads, at any rate or any price. Otherwise he would receive no unemployment pay. He would get unemployment pay for seven days and then he would be out. If anyone says that there will be special arrangements for actors, the noble Lord knows very well that there will be no such special arrangements.

So we come to what the Minister actually said. He said what he said before. It is just as unsatisfactory and just an unconvincing. We do not see why a developed back-to-work plan needs to be put into legislation like this and imposed on unemployed people, forcing them more and more into quasi-judicial activities in order to try to get their rights. It is exactly the same issue. It does not involve hypotheses. It does involve a little detail, but we shall not press it tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved]

6.15 p.m.

Lord Swinfen moved Amendment No. 5:

Page 1, line 14, at end insert ("except in the case of a disabled person").

The noble Lord said: Amendment No. 5 is grouped with Amendment No. 48 in the name of the noble Baroness, Lady Hollis of Heigham, and another of my amendments. Amendment No. 78. I do not propose to speak to Amendment No. 48. The noble Baroness is quite capable of doing that for herself.

Disabled people will be significantly affected by the introduction of the jobseeker's allowance. In 1996–97 it is expected that between 150,000 and 190,000 disabled people will sign on following the replacement of sickness and invalidity benefit with the more restrictive incapacity benefit. The conditions for the jobseeker's allowance are that someone has to be capable of work, available for work and actively seeking work. Disabled people can face problems at each of those stages. Proving that steps are being taken to find work will become an issue for disabled people once they have been accepted as capable of and available for work.

I shall deal first with the category of capable of work. During the passage of the Bill through another place, Ministers stated that a decision on work capacity made by the Benefits Agency for incapacity benefits purposes would be accepted by the Employment Service, so there should be no problem of people falling between two stools. However, there is already some evidence, in a survey by RADAR and the Disability Alliance, that a third of people moving from invalidity benefit to sign on had problems in establishing a claim for unemployment benefit because they were not accepted as being fit enough to sign on or to be available for work.

As regards availability for work, the current rules allow people to place restrictions on their availability for work where those are reasonable given the person's physical or mental condition. If the restrictions are accepted as reasonable, the individual is exempt from the requirement applied to other claimants with restricted availability to show that he still has a reasonable prospect of finding work despite the restrictions.

As regards the actively seeking work test, once claimants have been accepted as capable of work and available for work they have to show that they are taking steps actively to seek work, which include contacting employers, looking in newspapers and drawing up a curriculum vitae, as well as other things. Those steps will form part of the jobseeker's agreement which has to be signed as a condition of receiving the jobseeker's allowance.

The amendment would exempt disabled people from having to show that they are actively seeking work. The aims of the jobseeker's allowance, as stated in the White Paper, include the tightening of the labour market conditions for receiving benefit. The amendment does not seek to undermine that aim but to limit its application.

The actively seeking work condition for receiving benefit was introduced only in 1989. However, it appears that more people are having their benefit disallowed for failing actively to seek work. The Unemployment Unit reports that between April and December 1994 some 20,000 claimants were disqualified for that reason—three times as many as in the previous year. I understand that at the same time the Chief Adjudication Officer's report shows that 92 per cent, of decisions to disqualify from benefit were unsatisfactory. A growth in numbers being disqualified for failing actively to seek work, together with an increase in disabled people signing on because they have failed the new all-work test for incapacity benefit, has given rise to concern that many disabled people could encounter problems in meeting the condition of actively seeking work.

Surely those people who only just fail the incapacity test by scoring less than 15 points and who are likely to have substantial disabilities should only have to show their availability for work rather than also to have to show that they have taken steps to find it.

Incapacity benefit regulations now allow disabled people the choice of signing on as unemployed where they would pass the incapacity test and so be entitled to incapacity benefit. The regulations were debated in Standing Committee in the other place on 23rd March. It appears from Hansard that such people will not have to pass tests of availability and actively seek work when signing on.

In the case of disabled people it is illogical on the one hand to exempt them from the requirement to show that they must have a reasonable prospect of finding work while on the other hand to require them to take steps to seek work.

Many disabled people moving from incapacity benefit to jobseeker's allowance are likely to have been on benefit for a number of years, in many cases six years or more according to the Department of Social Security's own research. Their skills are likely to be out of date and they will require considerable assistance in moving into work. That will not be achieved by making them demonstrate how many job applications they have completed or how many telephone calls they have made to potential employers. Similarly, merely pushing disabled people towards jobs which are not realistic or for which they are not ready may mean that they take the job and then have to leave, possibly then falling foul of the voluntary unemployment rules when reclaiming jobseeker's allowance.

Rather than forcing disabled people into demonstrating that they are taking active steps to find work, surely it would be a better use of resources to encourage the greatest possible use of the specialist advice of disability employment advisers and placing, assessment and counselling teams. Although the Employment Service has been given an extra £71 million to help people who come off incapacity benefit and sign on as unemployed during the next three years, it is of some concern that the estimated numbers referred for specialist help to the placing, assessment and counselling teams are fewer than one in five of the total number expected to sign on. This suggests that the proposals will help only the minority of disabled people who sign on.

I turn finally to Amendment No. 78 in Clause 7. This clause introduces the jobseeker's agreement as a condition of receipt of the jobseeker's allowance. It stipulates that an agreement shall not be entered into unless the employment officer is satisfied that the conditions of availability for actively seeking work are satisfied. This amendment will remove the reference to the actively seeking work condition where the claimant is a disabled person. In moving the amendment to Clause 1, the arguments for removing the condition of actively seeking work from disabled people remain. This amendment seeks to carry through those arguments to the jobseeker's agreement itself. It will ensure that an employment officer cannot decide not to enter into the jobseeker's agreement if he considers that the disabled person cannot undertake the steps required in showing that he is actively seeking work. I beg to move.

Earl Russell

We in this Chamber know perfectly well that disabled people are often eager to work and do so with great distinction. However, the range of work that they are able to do is inevitably reduced. For that reason the requirement of actively seeking work may become rather onerous. Perhaps the ability to work depends upon transport arrangements that may involve a carer or upon the job of a particular type becoming available which is consistent with the particular physical handicap. To require them to go about actively seeking work on a regular basis, when in that week there may not be any work that they can sensibly seek, is not a productive use of everybody's time.

I believe that the same argument applies to Amendment No. 78. That amendment allows a disabled person to keep the own occupation test for rather longer than others. The own occupation test is particularly important for somebody with a disability. He or she will have learnt all of the adjustments to carry on a particular type of job with a particular type of handicap. When you move the individual outside that situation a new learning process has to be gone through. Inevitably, that will take time. To give them a little longer in their own occupation test makes a good deal of sense. I am happy to support these amendments, and I hope that the Minister will take them seriously.

Baroness Hollis of Heigham

I also wish to support Amendment No. 5 and speak also to Amendments Nos. 48 and 78. This is the first time this evening that we have had the opportunity to discuss one of the major concerns expressed all round the House at Second Reading. I refer to the interface between what many of us believe to be a very unpleasant jobseeker's Bill and a very harsh new incapacity benefit. Both pieces of legislation share a lot of common features. They are both marked by an increased severity of test. If one passes the test a reduction in benefit follows. The Minister has never justified why both hurdles are required. If the problem is that people inappropriately claim benefit, to make the test more harsh, as both pieces of legislation will do, should be sufficient. There is then no need to cut benefit because people will have earned that benefit. But if the problem is that people claim the wrong benefit because either invalidity benefit or unemployment benefit is too generous, government can align the benefit without making the test more harsh. To go for both—increased severity of test and reduced adequacy of direct benefit—is doubly unpleasant. The worst effect of all of this will be felt by those people who lie at the interface between incapacity benefit and jobseeker's allowance.

We have heard nothing so far this evening to allay our fears —perhaps the Minister can do so this evening—that people who are refused incapacity benefit because they are regarded as being available to do some work may fail JSA on the actively seeking work or capability test, because in the judgment of benefit officers they are not able or willing to do enough work to meet the jobseeker's agreement. We believe that the Government have stumbled into a very simple mistake. They have adopted an either/or test. Either one is well or one is sick. If one is sick and, on the Government's test, one scores more than 15 points on functional aptitude, or 10 points on mental health, one receives incapacity benefit. If not, one gets JSA or nothing.

Clearly, many conditions lend themselves to a simple either/or test. One can either walk five yards or one cannot. Many other conditions are partially disabling or fluctuating. For example, a person who cannot stand for more than 30 minutes without having to sit gets seven points; a person who cannot raise his arm to his head to put on a hat or coat gets six points. Taken together, those two conditions will disqualify most people from most physical work, yet they get only 13 points and will fail the test for incapacity benefit and will have to seek work under the JSA agreement. On most judgments such a person is partially disabled, but there is no way in which to recognise that within the incapacity benefit as established by government. Others may have a fluctuating physical condition which equally does not fit the either/or test. MS is one such and severe angina may be another. Another may be a condition where pain or fatigue is cumulative but will not show up at the incapacity test. I suspect that the noble Lord, Lord Rix, will speak to this matter from much more experience and background than I can. For example, others may have mild learning difficulties or moderate mental health problems, such as depression or anxiety attacks. If such a person is actively seeking work and obtains it, the job may not be held down for very long. Three weeks later the person may be unemployed. It will be very hard to establish good cause in such a situation when he or she has been required to pass the jobseeker's test.

We need a much broader assessment of what constitutes being capable of work and therefore what constitutes reasonable availability for work and actively seeking work. We do not need just a functional points analysis. Age, general health, existing skills and employment history are all relevant, because those are the issues that determine the capacity, ability and availability to seek and hold work.

In today's overstocked labour market is it realistic to expect an employer normally to employ somebody who is over 50 in preference to somebody who is under 40, or somebody with a record of poor health and interrupted employment over somebody who is fit, or somebody who can no longer do his old job and has no skills for any new job over somebody who is young, fit, keen, steady and qualified? In consequence, recent research has shown that over half of all disabled people who look for work do so for at least a year, and a further third take over three years to find a job. Yet such partially disabled people will have to show that they are capable of work and actively seeking it to qualify for JSA. If in the eyes of the Employment Service they appear to be unreasonably restrictive, as they may be if they have minor learning difficulties or minor mental health problems, which are quite hard for the unqualified to detect—these employment officers will be unqualified—those people will lose their JSA.

As the noble Lord, Lord Swinfen, has said, we need to ensure that anybody who has scored even some points on the incapacity test, though he may not have earned enough to qualify for incapacity benefit, is sympathetically and sensitively assessed by a qualified disability employment adviser. If the decision is then that that person is not capable of work within the framework of JSA, we must ensure that he can be passported into one of the other benefits and not left without income in the twilight world between the two.

I am confident that the Minister will wish to be sympathetic to the situation. But, as both the noble Lord, Lord Swinfen, and the noble Earl, Lord Russell, said, it is a major issue that will face us this summer. There are 190,000 people who currently receive incapacity benefit. They will come off incapacity benefit and have to present themselves for JSA. A further 80,000 people who would have obtained the benefit, in future will not do so. So a quarter of a million families may fall into that twilight area. It is one of the most worrying aspects of a deeply unpleasant Bill. I hope that tonight we can have from the Minister a reassuring answer to these amendments.

6.30 p.m.

Lord Rix

The noble Baroness, Lady Hollis, referred to me and to people who have a mild mental disability, people with a learning disability or people with mental health problems. I should like to clarify a point of which, perhaps, the Minister is not aware.

We have found over the years that the employment agencies have been singularly incapable of finding work for those who have a learning disability. That is why the Pathway Employment Service, which is supported by local authorities but is a MENCAP invention, came into being. It has been singularly successful in ensuring that people with a learning disability—some of those disabilities not so mild—have obtained and are indeed in open employment.

It is also true to say that the DRO's and possibly the disability employment advisers were not and are perhaps not well versed in the problems that face them with people who have a learning disability—as indeed they are not well versed in the problems faced with the employment of actors. Therefore, I hope that the Pathway Employment Service can be referred to in some form or another, just as the disability employment advisers were referred to by the noble Lord, Lord Swinfen, and the noble Baroness, Lady Hollis. I believe that there will be need for a specialist agency in this particular Field unless extensive training is given to the disability employment advisers.

Lord Dean of Harptree

I agree with many of the points made by my noble friend Lord Swinfen when he moved the amendment and with points made by other Members of the Committee, although I express some doubts about whether this amendment is the right way to go about assisting the disabled.

Replying to the debate on Second Reading, when many noble Lords, including myself, raised those points, my noble friend Lord Inglewood said that: all JSA claimants must be available for employment, but we recognise that some people's mental or physical condition may cause them difficulties in making themselves available for the full range of employment opportunities. Therefore, we will make specific provision in JSA that they should be able to restrict their availability to the hours of work that they are able to undertake within the limits of their condition".—[Official Report, 3/4/95; col. 54] I feel that it would be helpful to the Committee—certainly it would be helpful to me—if one of my noble friends were able to say a little more about what the Government mean by "specific provision". We have not so far heard a great deal about it. I recognise that many of the detailed points will have to be dealt with in regulations rather than by the Bill. But it would certainly guide me in considering my attitude to this amendment if, when the Minister comes to reply, he will fill out in a little more detail the intention behind the words "specific provision".

Baroness Williams of Crosby

I should like to follow on from what the noble Lord, Lord Dean, has just said. It is another Committee point which I hope the Minister will address when he comes to reply to the amendment. However, having heard the remarks of the noble Lord, Lord Swinfen, and the noble Baroness, Lady Hollis, it seems to me very likely that the Government will accept this group of amendments. I very much hope that they will. On all sides of the Committee and in all political parties we have made slow, agonising and constructive progress toward reintegrating disabled people into our midst, not least as a result of the work of voluntary organisations such as the one headed by the noble Lord, Lord Rix. It would be a great step backwards if we did not recognise that disabled people, whether for mental or physical reasons, require more assistance to get work than do the rest of us.

Having said that, I want to raise a detailed Committee point, which is rather close to the point raised by the noble Lord, Lord Dean. It is with regard to paragraph 33 of the memorandum from two departments. In that paragraph the departments submit that there can be exceptions made in the case of the test of availability for work. They in fact specify that the disabled form one of the groups—they also mention people with specific religious convictions—for whom availability of work can be restricted because of the condition of the applicant. However, that condition is strictly limited to availability for work and does not appear to apply to actively seeking work. In setting out the detailed understanding of what is implied by "actively seeking work", no qualification is made in respect of the disabled or other special groups.

Therefore, I ask the Minister whether he can give the Committee an assurance that the qualification which applies in the case of availability for work will also apply in the case of actively seeking work, for the reasons that have already been put forward so eloquently by the noble Lord, Lord Swinfen. If the Minister cannot give us that assurance, I fear that the disabled will be among the victims of the Bill, which I am sure is not the intention of the Government, nor indeed of any other part of this Committee.

Lord Mackay of Ardbrecknish

I can understand the thinking behind the three amendments and the points made in the debate on them. The amendments and many of the points made seek to recognise that the circumstances of people who have a disability need special consideration. I should like to assure the Committee that we want to include, not exclude from JSA, people with disabilities. To that end, we have given a commitment to take the needs of people with disabilities into account in drawing up the JSA labour market rules. Because of that commitment, I believe that these amendments go too far and should be rejected. Perhaps I may explain why.

As I have said on a number of occasions and no doubt I shall continue to say it, it is important that those people who are claiming unemployment benefits—that will include the JSA—should keep in touch with the labour market and make every effort to get back to work. We recognise that disabled claimants may face particular difficulties in making themselves fully available and actively seeking work. That is why we intend to carry forward the current provisions in unemployment benefit and income support. Those will allow a person with a mental or physical condition to place restrictions on the nature, hours, rate of remuneration, locality or other conditions of employment which he is prepared to accept, where those restrictions are reasonable in view of his condition. My noble friend Lord Swinfen asked me specifically about the restrictions on availability. As I said, the current arrangements will be carried forward. The acceptability of restrictions on availability will not depend on the individual demonstrating a reasonable prospect of securing work. The restriction should simply take into account his or her medical and physical condition.

Similarly, the actively seeking employment rules will continue to take account of the steps that a jobseeker has taken to find work in the light of his circumstances. Physical or mental limitations are just one of the factors that are taken into account when assessing whether the steps that he has taken are sufficient to meet the condition. I hope that that answers the point of the noble Baroness, Lady Williams.

We are also improving the actively seeking employment condition so that the list of acceptable steps a jobseeker can take to find work would be extended to include steps to improve employability. At present only steps which amount to actual job search are listed as steps in the regulations. We shall be including appointments to meet with a specialist adviser, which in the case of the people we are discussing could be a disability adviser. That will be included in the list of acceptable steps a person can take to improve employability.

I believe it would be wrong for the law to treat people with disabilities as though they were not able to seek and find work. That would send a negative message, when we all want to send positive messages both to jobseekers with disabilities and to prospective employers about the importance of recognising the abilities of disabled people. It would risk overlooking a wealth of talent and skills which many people with disabilities have to offer. No more than any other jobseekers do people with disabilities want to sit around waiting for a job to fall into their lap or for someone else to find one for them.

My noble friend Lord Swinfen was concerned about people who are eligible for IB but who actually want to opt for a JSA. Of course they can do that, and I think I have already answered him in another debate in that respect. I think his question is: would their disabilities then be taken into account, having been in that position and having come across to JSA when the agreement was being made up, especially concerning availability and actively seeking work?

Lord Swinfen

If my noble friend would allow me, he knows that this month incapacity benefit has come in and that a disabled person may not qualify for incapacity benefit if he is considered not disabled enough. What I am concerned about is that he may not then be allowed a jobseeker's allowance because the other officials might consider that he was not capable of getting a job. I do not want that kind of disabled person to fall between two different sets of civil servants.

Lord Mackay of Ardbrecknish

I apologise to my noble friend. I understand both sides of the coin and will address both sides of the coin. I actually thought he had posed the question I was trying to answer, and so I apologise. However, I shall carry on because I think it is important. People who are disabled may be perfectly able to do a whole spectrum of work and may in fact be eligible for IB but may not want to take it. They want to get back into work or to find work. In those circumstances, as I have said, officials in the Employment Service will be taking these disabilities into account when they decide on the availability aspect and on the actively seeking work aspect. I appear to be answering a question I have posed myself, but it is a good question even though I do pose it myself.

I should have thought that anyone who actually made that decision—I do not want to stay too long on IB but to move along to JSA—in order to get a job was going to be actively seeking a job and would not have too much difficulty in coming to an agreement with the disability adviser about the steps that he could take to get that job. That leads me on to say that we shall be ensuring that those who are leaving incapacity benefit—and this is my noble friend's point—will receive extra help to get them into the labour market. The Employment Service will devote £71 million over the next three years to ease the transition between IB and unemployment benefit. The noble Lord, Lord Rix, suggested that perhaps we were not very good at finding jobs for disabled people. Maybe we are not perfect at it, but I say to him, I hope in an encouraging way, that in 1993–94 53,000 disabled person were helped into jobs by the service.

6.45 p.m.

Lord Rix

If I may just clear up one point with the Minister, I was of course referring mainly to people with a learning disability. They are the people who have the greater difficulties in finding jobs.

Lord Mackay of Ardbrecknish

I was just coming on to say that I did not know to what extent that could be split between different forms of disability in the widest sense. But I have now heard the noble Lord's point twice about people with learning difficulties having special problems and I shall certainly discuss that with my colleagues and officials when we go over the various matters which have been raised today.

I now come to the point which my noble friend actually put to me and which was also put by the noble Baroness, Lady Hollis of Heigham, about the person who fails the IB test and goes over to the Employment Service and asks to be put on to JSA. In those circumstances, could the JSA officials say, "No, you can't come here; you're disabled"? I think I have answered this question before in at least two debates: once on the regulations on IB—in fact, twice on those regulations—when I tried to make clear to your Lordships that the two benefits will be so aligned that no one will fall between two stools. If someone does not satisfy the IB test, the Employment Service cannot refuse them access to JSA on the grounds that they are disabled. So there is no double jeopardy there, and I hope that that assurance will help your Lordships.

Baroness Hollis of Heigham

I thank the Minister for giving way. I am sure he is at one with us in wanting to prevent what I think the noble Lord, Lord Swinfen, referred to as the "two stools" problem. However, I believe the noble Lord has misrepresented where the problem lies. It is not that someone will turn up and be told by the employment officers, "You're disabled, go away"; but that a person who has so far regarded himself, or defined himself, as disabled because he has been receiving invalidity benefit but has failed to qualify for incapacity benefit nevertheless considers himself to be partially disabled and therefore has an appropriate right to restrict various activities that nonetheless the employment officer thinks he ought to engage in. It may be bus transport; it may be travel distance away from home; it may be the hours he would have to work; it may be whether he has a companion; or it may be a host of things which are part of his definition of being partially disabled.

I fear that it is particularly when you are dealing with mental health problems that difficulties arise. It is much easier when there are clear physiological or orthopaedic disabilities which are easily perceived and understood across the table. It is when someone has failed the incapacity test on grounds of perhaps mild learning difficulty or moderate mental health disability and then goes on to impose availability for work restrictions which an unqualified employment officer thinks are unreasonable that the problem will occur. What will the Minister do to ensure that such a problem is sympathetically resolved?

Lord Mackay of Ardbrecknish

I like to think that I tried to address that point in the first part of my contribution. I apologise for going over it again because I might have been doing it in general terms, but obviously it would apply to someone who had failed the IB test but who had some degree of incapacity and who then came to JSA. I explained that we are carrying forward current provisions on unemployment benefit and income support which allow people with a mental or physical condition to place restrictions on the nature, the hours, the rate of remuneration, the locality or other conditions of employment which he is prepared to accept and where those restrictions are reasonable in view of his condition. As far as actively seeking employment is concerned—

Baroness Hollis of Heigham

May I intervene again? Would that be "reasonable" in view of his condition as certified by whom?

Lord Mackay of Ardbrecknish

That has to be a matter for the official in the Employment Service, who will have in front of him—my memory in fact suggests that it may be an automatic transfer, but certainly there would be available a document that would indicate the degree of incapacity the doctors had found in the IB test when they examined the person. Therefore the officers in the Employment Service will have the information in front of them from those doctors in addition to what the person tells them himself.

Lord Rix

I thank the Minister for giving way. Just to clarify a further point, would a person with a learning disability be allowed to undertake the job interview for the jobseeker's agreement with an advocate being present? I am sure the Minister would agree that people with a learning disability can often be open to suggestions which can be made across the table. They might accept things which frankly were not really to their benefit.

Lord Mackay of Ardbrecknish

I believe that in those circumstances a person would be able to have somebody present to help. I shall check that, and if I am wrong I shall write to the noble Lord.

Baroness Hollis of Heigham

I thank the Minister again for giving way. This is Committee stage but it is something which is of major concern to us. I want to refer to the other group of claimants with which we are particularly concerned—that is, those with mild or moderate mental health problems. Under the medical test one needs 10 points to be eligible for incapacity benefit. Somebody who, for example, has a fear of going out alone would perhaps score two or three points and somebody who suffers from sudden panic or anxiety attacks may obtain two or three points. In other words, they would fail the incapacity benefit test. They then come to JSA and most jobs would require them to go out alone in order to go to work; most jobs would require them not to be vulnerable to sudden panic attacks.

It seems to me that the employment officer, merely having in front of him the information that such a person scored only five or six points on the mental health test, may reasonably regard him as being available for a much wider range of work than realistically that person can do given his or her mental health problem. What will happen in that situation? An unqualified employment officer may try to impose on somebody with a mild mental health problem a wider range of jobs than that person can reasonably apply for or hold down. If the claimant does not accept that as part of the jobseeker's agreement, the entitlement to benefit will be lost until or after an appeal has been made and, it is to be hoped, upheld. Can the Minister clarify that situation for us?

Lord Mackay of Ardbrecknish

I am being asked quite detailed questions. I can confirm to the noble Lord, Lord Rix, that my view on that matter was the correct one. The noble Baroness, Lady Hollis, poses a more difficult question. When we get into the hypotheticals I need to look at the points system to see whether someone would fail the IB test because they are so badly mentally handicapped—

Baroness Hollis of Heigham

It is a mental health problem.

Lord Mackay of Ardbrecknish

I apologise; their mental health problem is such that they are unable to go out of doors, and so forth. I should like to study that situation before giving a definitive reply across the Dispatch Box.

I recognise the pictures that are occasionally drawn of officials and various agencies of the Government as being little Hitlers. That is not a fair reflection of most of them. There are probably a few little Hiders everywhere, if I may put it like that. However, most people try to do a good job—even in the Government, I am told—for the claimant in front of them.

In trying to help the noble Baroness without giving a yes or no answer to a hypothetical case, perhaps I can say that if somebody who is an IB leaver makes a claim for JSA, then, as I said a moment ago though I cannot remember in response to whom, the disallowance notice and the Benefits Agency medical service's note would be provided as long as the client gave written consent. I must add that slight caveat. But if the client gave consent, then we would make sure that the documents were available to the Employment Service. If an employment officer thinks that the case is beyond him, for example, then he will also have access to specialist advice from the placing and counselling teams called PACTs, and from the disability employment advisers.

I do not want to go too much further on the hypothetical question raised by the noble Baroness. Evidence will be available from the test; specialist advice will be available if an employment officer decides that the case is too difficult for him. If he wants to take more expert advice, then that advice will be available to him and he can take that advice before coming to a conclusion along the lines that I tried to indicate in the main body of my speech. We hope in the regulations that we can carry forward some of the things currently in unemployment benefit and income support and also take account of disability when deciding on "actively seeking". Ultimately, the adjudication officers and the system of review exist to make sure that nobody in the first instance makes a totally unjustified and unreasonable decision.

Baroness Hollis of Heigham

Perhaps the Minister will once again kindly give way. That explanation is helpful and I understand the Minister's difficulty regarding the detail of individual cases. But following on the theme addressed by the noble Earl, Lord Russell, earlier, can he assure us that anybody coming off incapacity benefit, invalidity benefit or disqualified from incapacity benefit but who has some points, though not sufficient to register them eligible for the benefit, will continue to receive their JSA? If an employment officer under the JSA agreement wishes to disqualify them and the claimant intends to appeal, can the Minister say that they will continue to receive the benefit until the appeal is heard?

We are talking about a particularly vulnerable group of people who were eligible for a benefit in the past but from which they are now disqualified because they have not met the IB or medical test. We are not talking about bad faith, scroungers or people abusing the system. These people have come into the JSA. An inexperienced employment officer may wish to disqualify them from the JSA on the grounds that he thinks that they are making too large a claim for the incapacity suffered by virtue of their minor mental health problem. They may wish to challenge that and go to appeal. Can the Minister assure us that in that case the most vulnerable of people will not lose their JSA benefit while the procedure is going through?

Baroness Williams of Crosby

Before the Minister replies, perhaps I can ask him to allow me to give an example, since he asked for examples which were not hypothetical. In my former constituency there was a large home for people who suffered from epilepsy. A number of them were able to obtain jobs. But epilepsy is precisely the kind of disease which occurs from time to time where somebody would not obtain adequate points to satisfy the full requirements to qualify for full disablement benefit, yet it is exactly the kind of condition where an employer may refuse to accept somebody who suffers from it. I plead that the Minister gives due consideration to the point raised by the noble Baroness, Lady Hollis. This group above all groups should not be disentitled to benefit—they have no other means of existence—until such time as there has been an adjudication on the morality and justice of their claim.

Earl Russell

While the Minister considers that situation, perhaps I can make a brief intervention which may save the time of the Committee by my not needing to speak at all to Amendment No. 6, that also being concerned with the two stools issue.

I accept the justice of what the Minister says—that he has given us assurances on this matter twice. The noble Viscount, Lord Astor, at Second Reading of the incapacity Bill, gave us another. They were warm and full assurances. In terms of goodwill, I believe there is nothing between us. Yet the cases keep on coming. We need to work out why.

I am aware of a couple of cases which may help to illustrate what is going wrong. They are both CAB cases. One concerns someone who had been on invalidity benefit for five years and had it withdrawn. The unemployment office refused to allow her to sign on because she was not really fit. In the other case the claimant's invalidity benefit was withdrawn. On the unemployment benefit forms he said that he did not consider himself to be fit for work so his claim for unemployment benefit was refused. These are all people of limited capacity—I believe that is the crucial way to think of it—who are being sent along to the employment officers who are being asked to tackle the job of finding them work. That may be a thankless task because it may be extremely difficult.

I am reminded of what used to happen under the old Poor Law when the poor were meant to be sent back to their parishes. When they arrived there, the parish, finding a lot of destitute people who perhaps had not been seen for 20 years, were always apt to say, "She does not come from here, she comes from that parish over there". In the present situation we have employment officers with a great flood of business sent in to them reacting rather like Dame Partington by trying to push it out. It is a natural human reaction. It is no fault whatever of Ministers. But we need to think of how to stop it. Guidance may be part of it and, since this is an immense body of work, additional staffing may help also. I do not know if my contribution was helpful, but I hope so.

7 p.m.

Lord Mackay of Ardbrecknish

I hope that I can remember all the points which have just been wished on me at what I hope is the tail end of the debate on this series of amendments. In the hope that I can perhaps persuade the noble Earl to withdraw his next amendment, I have been able to find in this fairly complicated business what I might call the "legalistic answer" to the assurances that I have given about the question of "between two stools". Paragraph 2(1) of Schedule 1 to the Bill says, The question whether a person is capable or incapable of work shall be determined, for the purposes of this Act, in accordance with the provisions of Part XIIA of the Benefits Act". That is what links the two together. I hope that it will mean that nobody will get caught between the two stools. I hope that that answers the point made by the noble Earl. It is also what I would have said as regards his next amendment.

I believe I was asked about appeals. I presume that I am being asked about someone who goes onto JSA and who is appealing against a JSA decision and is not appealing against being taken off incapacity benefit.

Baroness Hollis of Heigham

I thank the Minister for taking the trouble to answer this matter in some detail. I was putting to him the case of someone who has lost incapacity benefit and who is not contesting that. He has six to eight points or so, and he has come over to JSA. However, because he still carries with him that partial disability which originally rendered him eligible for invalidity benefit, he believes that he must restrict his availability for work to a greater degree than the Employment Service thinks reasonable. That service then regards him as failing to meet a JSA agreement or not actively seeking work. It therefore disqualifies him from benefit. He may then appeal against that on the grounds that he is acting reasonably, given the nature of his disability, and that his restrictions are reasonable. I am asking that while that is being contested, can that individual at least remain on benefit and not find him or herself both partially disabled and without income?

Lord Mackay of Ardbrecknish

In the light of an answer that I gave a few moments ago about the fact that the detail in the form of the medical evidence from the Benefits Agency medical service would come over to the Employment Service, and the fact that there are specialists available in the service to give advice in this particular field, I hope that the officer and the claimant will be able to come to an agreement. I have been asked about the situation if they do not so agree and I suppose I must go on to try to answer that. I am not sure that the noble Baroness will be satisfied with the answer, but I believe that it is the same as the answer that I gave earlier this afternoon; namely, that if they come into the vulnerable group then they continue with benefit until the matter is resolved. If they do not come into that group I believe that there is a two-week period before they receive —I have forgotten the name of the benefit—

Baroness Hollis of Heigham

It is partial benefit.

Lord Mackay of Ardbrecknish

I am grateful to the noble Baroness. I hope that that answers the question.

Baroness Hollis of Heigham

That benefit is a 40 per cent. reduction even on the basic income support level.

Lord Mackay of Ardbrecknish

It is a reduction, but it is an indication in more general terms of the fact that we do not want people to appeal automatically in all cases. I said that I thought that the noble Baroness would not consider my answer to be very satisfactory, but I have answered her question.

Lord Swinfen

I would very much like to read the whole of this debate before deciding what to do. This evening I shall withdraw my amendment. However, I am delighted that my noble friend the Minister is himself beginning to question some of the legislation which is before us. He gave me the impression that he is beginning to ask questions on behalf of disabled people because he answered a question which I had not asked. I hope that he will encourage other Members of the Government to begin doing exactly the same thing. It will make the debates in this House a great deal less difficult and shorter if the needs of disabled people are considered at an earlier stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

Lord Inglewood

I beg to move that the House be now resumed. In moving this Motion, may I suggest that the Committee stage begin again not before five minutes past eight.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.