Commentary

Clause 47 inserts new sections 2A and 2B after section 2 of the Administration Act. All references in the commentary below are to these new sections.

Section 2A enables regulations to be made to provide that a claim or full entitlement to certain benefits is conditional on claimants taking part in work-focused interviews, both at the point of claim and in other circumstances set out in regulations. The section allows for the detail of these requirements to be provided for in secondary legislation, although the ways in which these powers will be used are clearly laid out in subsections (3) to (7). The reason for this approach is that there needs to be flexibility to adjust the various detailed aspects of the scheme in the light of experience during the pilot exercises.

The power itself

New claims to benefit will be made via the Single Work-Focused Gateway. As part of the claiming process, claimants will take part in an interview with their personal adviser to discuss the steps they might take to move closer to the labour market. Therefore:

• subsection (1)(a) provides regulation-making powers to allow provisions to be made for claimants of the benefits listed in subsection (2) to take part in a work-focused interview as part of the process of claiming those benefits.

In some cases, claimants will be asked to take part in interviews after benefit has been put into payment. This would happen in two instances: first, where an interview at the outset of the claim was deferred, because it was considered inappropriate in the circumstances of the case (for example, the point of claim would not be an appropriate time to discuss work-related issues with a grieving widow-so the interview could be deferred until a later date). Second, an interview would be requested on the occurrence of a specified event (a "trigger point"), set out in regulations: for example, when the youngest child of a lone parent reaches school age. Interviews may also be triggered where claimants have not taken part in another work-focused interview within a set period. Therefore,

• subsection (1)(b) provides for regulations that will enable interviews to take place where one or more of the benefits listed in subsection (2) is already in payment. It allows for the circumstances in which such interviews will take place to be specified: for example, where a deferred interview was now appropriate, or where a "trigger point" (see above) had been reached. Those claimants whose benefit is already in payment and who do not take part in the interview when asked to do so will have their amount of benefit reduced (see subsections (4) and (5)). It is proposed that regulations under this subsection will exclude existing claimants from the requirement to take part in work-focused interviews in respect of those claims for the duration of the pilots. This position will be reviewed in light of the experience of the pilots.

Subsection (2) lists the benefits to which the requirements in subsection (1) will apply. In particular, subsection (2)(g) ensures that this provision will apply to the new benefits for widows and widowers introduced by clause 45 of this Bill. However, the Bereavement Payment (the proposed new lump sum payment which will replace the Widow's Payment) is excluded from the provisions of this section. Although claimants of Jobseeker's Allowance will enter the Single Work-Focused Gateway the benefit is not included in this subsection, as claimants are already subject to the requirement to attend work-focused interviews.

How the power would be used

Subsections (3) to (7) identify the ways in which the regulation-making powers provided under subsection (1) might be used, in order to deliver the intention that claimants should take part in work-focused interviews in connection with their benefit claims.

Where a person is claiming, or is in receipt of, a number of benefits at the same time (for example Income Support, Housing Benefit and Council Tax Benefit) it would clearly be inappropriate to ask them to take part in separate work-focused interviews in respect of each benefit. Therefore:

• subsection (3)(a) ensures that regulations can be made to ensure that a person claiming two or more benefits is not required to take part in more than one interview, and that this interview will count for all the benefits that are being claimed.

An important aim of the Single Work-Focused Gateway is to give claimants a more streamlined, integrated service, by providing a single point of contact for all of their benefit requirements. This is the case whether that person has to undertake a work-focused interview as a result of claiming benefits administered by the Benefits Agency (for example Income Support or Incapacity Benefit); by the Employment Service (Jobseeker's Allowance); by local authorities (Housing Benefit and Council Tax Benefit); or a combination of benefits administered by two or more of these organisations. This will mean that an interview may be conducted by a person acting on behalf of the Secretary of State (most commonly an employee of the Benefits Agency, the Employment Service or a private/voluntary sector organisation contracted to provide services to the Secretary of State) or by a employee of a local authority. It is intended that the interview will usually be conducted at Benefits Agency, Employment Service or local authority premises, although there will be some occasions where this is either not feasible or not appropriate. In such circumstances, the interview could be conducted at the person's home or at some other suitable premises. Therefore:

• subsection (3)(b) sets out that the regulations can allow the Secretary of State to prescribe who will conduct the interviews. This will enable representatives of the Secretary of State, local authority employees or persons providing services to either to conduct interviews.

• Subsection (3)(c) enables the regulations to confer on representatives of the Secretary of State and local authority employees the power to determine where and when an interview will take place. This mirrors the provisions in section 8 of the Jobseekers Act.

The regulations under this section will impose a general requirement on claimants to take part in a work-focused interview. Claimants attending such interviews and the personal advisers who conduct them need to be clear as to the criteria to be used in judging whether a person has actually taken part. Therefore:

• subsection (3)(d) explains that regulations can set out the circumstances in which a person is to be treated as taking part in or not taking part in the interview. It is proposed that the test of whether a claimant has taken part will be whether he has provided information in areas relevant to his employment prospects, such as educational qualifications, previous work history and vocational training.

Where a person does not take part in an interview there will be an impact on their claim to benefit or to the amount of benefit which is in payment, unless the person show 'good cause' for not taking part. Good cause is not a new concept in social security and is used, for example, in deciding whether people's entitlement to Jobseeker's Allowance should cease where they have not kept an appointment with a representative of the Secretary of State (section (8)(1)(d) of the Jobseekers Act).

• Subsection (3)(e) ensures that regulations may provide that if a person requested to take part in an interview does not do so then, unless he can show good cause within the prescribed period, subsection (4) will apply.

• Subsection (3)(f) ensures that regulations may provide for what constitutes good cause for not taking part in the interview. Examples might be when someone suffered from an accident or illness on the day set for the interview or where a person misunderstood the requirements placed upon them because of any language or literacy difficulties.

Subsection (4) deals with the consequences if a claimant does not take part in a work-focused interview when asked to do so.

• Subsection (4)(a) deals with fresh claims to benefit. Where, if requested to do so, a person does not take part in an interview at the point of claim, they will be regarded as not having completed the claims process. Any claim for benefit will therefore not proceed.

• Subsection (4)(b) deals with the circumstances where entitlement already exists. If a person who has already established an entitlement to benefit does not take part in an interview, regulations may provide for the amount of their benefit to be reduced.

Subsection (5) links to subsection (4)(b) in that it deals with how any reduction in the amount of benefit payable should be calculated and applied. It is the intention that there will be a small reduction in the aggregate amount of benefit in payment-and this will be refundable once an individual has taken part in a work-focused interview.

• Subsection(5)(a) sets out that the regulations may stipulate how the amount of the reduction will normally be calculated.

• Subsection (5)(b) sets out that the regulations may allow the normal deduction to be set at a lesser amount in prescribed circumstances. This is to cover situations where the amount of the reduction would otherwise be greater than the entitled amount of benefit. In addition, it is the intention to ensure that the claimant retains entitlement to a nominal amount of each benefit, to prevent the claim from lapsing and, where appropriate, to ensure that entitlement to any "passported" benefits is retained.

• Subsection (5)(c) ensures that the regulations may stipulate that if the individual is claiming more than one benefit, the reduction may be applied to more than one of the benefits but the total reduction should not exceed the amount calculated under subsection (5)(a). The regulations will also prioritise the benefits against which the reduction should be applied. It is expected that Housing Benefit will be the last benefit to which sanctions should be applied, given its specific role in covering essential housing costs. Since the Single Work-Focused Gateway places an obligation only on those claiming benefits included in subsection (2), no sanctions will be applied against any benefit not included within this section.

• The intention is to refund any reduction made under these provisions once a claimant has taken part in an interview (although such refunds would be subject to a time limit). Subsection (5)(d) ensures that the regulations may make such provision.

There will be certain people for whom a work-focused interview will not be appropriate. Subsection (6) ensures that regulations may be made to prescribe the circumstances in which the requirement to take part in a work-focused interview is not to be applied. It also ensures that the "designated authority" (i.e. a representative of the Secretary of State, a local authority employee or a person providing services to either) has the power to waive or defer the interview. It also sets out what the impact of these will be on the person's claim, or entitlement, to benefit.

• Subsection (6)(a) ensures that the requirement to take part in a work-focused interview may be disapplied under certain circumstances. It is intended that this power will be used, for example, to exempt people of pension age who are claiming any of the benefits listed in subsection (2), or Housing Benefit and Council Tax Benefit claimants who are in full-time employment.

• Subsection (6)(b) allows the requirement to take part in a work-focused interview (either as part of a claim to benefit or where entitlement already exists) to be waived where it would not be of assistance to that person, or appropriate in the circumstances. Examples of this might be where a terminally ill person claimed benefit, or where a person had already had a series of work-focused interviews on a voluntary basis immediately prior to the occurrence of a "trigger point" (see note on subsection (1)(b), above). Where an interview at the point of claim is either waived or deferred (see subsection (6)(c)), the claim will be treated as made, despite the fact that there has been no interview; where entitlement already exists, no reduction will be applied to the amount of benefit in payment.

• Subsection (6)(c) allows the requirement to take part in a work-focused interview to be deferred where it is determined that an interview would not be of assistance, or appropriate, until a later date. Examples might include a person recovering from a major operation.

Subsection (7) defines terms used throughout the section:

• A "work-focused interview" is the interview that almost all claimants will be asked to take part in, either as part of the process of making a claim, or after the benefit has been put into payment. The purpose of such an interview is to assist claimants to identify and take steps to overcome barriers to work; and to improve their employability so that, where appropriate, they can move into sustainable employment. To this end, an interview may cover such areas as previous employment record, educational and vocational qualifications and capacity to undertake work.

Supplementary provisions

The new section 2B further clarifies how the power in section 2A would be used.

• Subsection (1) ensures that the regulations can give claimants a right of appeal under section 12 of the Social Security Act 1998 against decisions that they have not taken part in a work-focused interview; that they have not shown good cause for not taking part and a right of appeal against any decision to reduce the benefit in payment due to not taking part.

• Subsection (2) ensures that all such decisions taken by, or on behalf of, local authorities should be treated, for the purpose of appeal rights, as made by the Secretary of State under section 8 of the Social Security Act 1998. In practice, this means that all decisions, whether made by a representative of the Secretary of State or a local authority employee, are treated in the same way, with all claimants having a right of appeal to an independent appeal tribunal in respect of these decisions.

• Subsection (3) extends the definition of "information relating to social security" to include information supplied as part of a work-focused interview (which might, for example, include subjects such as a person's previous employment record and capacity to work). The intention is to ensure that information gathered about a client's employability can be passed on to their personal adviser. The extended definition applies to:

--    section 3 of the Social Security Act 1998 (which allows information relating to social security, child support or war pensions to be exchanged and used for the purposes of each other); and to

--    clause 60 of this Bill, which provides a framework for the use or supply of the information that underpins a number of social security and employment-related activities (of which the Single Work-Focused Gateway is one). See the commentary on clause 60 for further details.

CLAUSES 48-49: JOBSEEKER'S ALLOWANCE

Clause 48 and Schedule 7: Joint claims for Jobseeker's Allowance

Background

Currently, unemployed partners of JSA claimants are not required to be available for or actively seek work. There is no targeted help and support available to assist them to return to work if they wish to do so. Ninety per cent of partners of JSA claimants are women.

Under the new scheme, an unemployed couple who do not have responsibility for children and who belong to the group to be defined in regulations, will be required to make a joint claim for JSA and each will have to satisfy the conditions of entitlement to the benefit. Regulations will prescribe which couples will be covered by the requirement by reference to a date of birth. It is intended that the requirement will apply to couples where one or both members of the couple is aged 18-24 when these measures are introduced.

Both partners will therefore have the same opportunity to receive help and guidance to return to work and to go onto employment programmes including the New Deal for Young People.

The basic conditions of entitlement to JSA are set out in section 1 of the Jobseekers Act. They include the requirement for the claimant to be available for and actively seeking employment and to have a "Jobseeker's Agreement" (i.e. an agreement which is entered into by the claimant and an employment officer which specifies the steps that the claimant will take in order to seek employment - as defined at section 9(1) of the Jobseekers Act).

There are currently two routes to JSA:

• Contribution-based JSA is payable only to a person who, in addition to satisfying the conditions contained in section 1 of the Jobseekers Act, satisfies the National Insurance contribution conditions (section 2 of the Jobseekers Act). It is payable at a personal rate and includes no additional payments for dependants of the claimant. Both members of a couple may separately qualify for contribution-based Jobseekers Allowance if they each satisfy the contribution conditions on the basis of their own contributions record.

• Income-based JSA is an income-related benefit for which the claimant must satisfy the conditions specified in section 3 of the Jobseekers Act in addition to the entitlement conditions at section 1. One member of a couple claims for himself and for dependants.

The Bill introduces a third route to JSA: "joint-claim Jobseeker's Allowance", which will apply in certain cases where JSA is claimed for a couple. This is a sub-category of income-based JSA.

Commentary

The joint claims provision for Jobseeker's Allowance (JSA) is introduced by clause 48 which brings Schedule 7 into effect.

• Schedule 7 amends the Jobseekers Act to provide for joint claims.

--    Paragraphs 1 to 12 of the Schedule amend existing provisions of the Jobseekers Act and insert new provisions.

--    Paragraph 13 makes a necessary change to the rules for social security appeal tribunals set out in the Social Security Act 1998.

Paragraph 2: Entitlement to a Jobseeker's Allowance

This paragraph amends section 1 of the Jobseekers Act which provides for entitlement to JSA. Provisions for entitlement to contribution-based JSA are unchanged.

Sub-paragraph (3) inserts a new section 1(2A) into the Jobseekers Act which provides that income-based JSA can only be claimed by a claimant who is not a member of a joint-claim couple. New subsection (2B) provides for the conditions of entitlement for a joint-claim couple.

The conditions of entitlement to JSA that joint-claim couples will have to meet are that the couple must claim jointly for the allowance and that they must each satisfy the conditions set out in paragraphs (a) to (c) and (e) to (i) of section 1(2) of the Jobseekers Act (for example, to be available for and to actively seek employment). They must also meet the conditions set out in the new section 3A, inserted by paragraph 3 of the Schedule (see below).

The couple will be covered by these requirements for so long as they claim JSA and their relevant circumstances remain unchanged. Examples of a relevant change for this purpose would be that the couple have a child or separate.

Paragraph 2(3) also inserts into section 1 a new subsection (2C) which provides a power to prescribe circumstances in which a claimant who is a member of a joint-claim couple can nonetheless make a claim for JSA by virtue of the provisions at subsection (2A) (entitlement to JSA for claimants who are not members of a joint-claim couple).

Regulations will specify circumstances where one member of a joint-claim couple may make a claim on his or her own behalf. It is intended that this should apply where one of the joint claimants fails to satisfy the conditions of entitlement for the joint-claim set out in new section 1(2B) of the Jobseekers Act.

The other joint claimant who is prepared to meet the conditions of entitlement would then be able to claim contribution-based JSA under section 2 of the Jobseekers Act if he could satisfy the contribution-based conditions. If he could not satisfy the contribution-based conditions he would be able to claim income-based JSA on his own behalf, by virtue of subsection (2A). However, the couple's income and capital will be taken into account in determining the amount of benefit which is paid. The award of JSA would thus be at the applicable single person's rate with no additional allowance for the partner who had failed to satisfy the conditions of entitlement for joint-claim JSA.

Sub-paragraph (4)(b) defines a joint-claim couple as a married or unmarried couple who do not have dependent children. Regulations will further specify which couples will be covered by the requirement to make a joint claim. It is intended that this will be done by reference to the date of birth of members of the couple. The intention is that couples where at least one partner is born on or after the specified date will be covered by the requirement to make a joint claim. The date will be set so that, at introduction, a couple where at least one partner is aged 18-24 will be covered. The provision would therefore extend, over time, to a couple of any age, so long as they do not have children and one of them was born after the prescribed date.

Paragraph 3: The conditions for claims by joint-claim couples

Paragraph 3 inserts sections 3A and 3B into the Jobseekers Act. These new sections set out the conditions which a joint-claim couple must meet to receive income-based JSA. Section 3A adapts the provisions of the current section 3 to deal with the circumstances of a joint-claim couple. The section also makes it clear that at least one member of the couple must have reached the age of 18. If the other member of the couple is 16 or 17 years old, he must have a direction from the Secretary of State under section 16 of the Jobseekers Act that (to prevent severe hardship) JSA may be paid to him or he must be in prescribed circumstances so that JSA can be paid, to satisfy the conditions in new section 2B(c) for a joint-claim couple to receive JSA. (These are the same situations in which, currently, a 16 or 17 year old may be named as a dependant on the JSA claim made by a person aged 18 or over.)

Section 3B deals with the new circumstance of payment of JSA to a joint claim couple. The joint claim couple have to decide which one of them will receive payment of JSA. If the couple express no preference or cannot agree to whom the payment should be made, the Secretary of State (i.e. a departmental official) will decide who receives the payment. In either case the payee will be known as the "nominated member". The other member of the couple will become the nominated member when he receives payment of JSA in a situation where the previously nominated member has broken JSA rules under new section 20A introduced in paragraph 10 and attracts a sanction.

This part of the legislation does not prevent direct payments to persons besides the nominated member. Like other JSA claimants, joint claim couples may, for example, have a proportion of their JSA deducted and paid direct to a fuel company.

Paragraph 4: Amount payable by way of a Jobseeker's Allowance

This amends section 4 of the Jobseekers Act which sets out how the amount of JSA payable to an individual claimant is calculated, to cater for the payment of joint-claim JSA. Subsections (6) to (11) will not apply to joint claimants; provisions with an equivalent effect are included in new section 4A (see note on paragraph 5, below).

Paragraph 5: Amount payable by way of a joint-claim Jobseeker's Allowance

Paragraph 5 inserts new section 4A into the Jobseekers Act. It sets out how the amount of JSA payable to a joint claim couple is calculated. In effect it shadows the provisions of subsections (6) to (11) of section 4, which make similar provision for individual claimants.

Paragraph 6: The Jobseeker's Agreement

This amends section 9(12) of the Jobseekers Act, which provides that a Jobseeker's Agreement ceases to have effect when the claimant's award of JSA comes to an end, to adapt it for joint-claim couples. Regulations will provide for circumstances in which the Agreement will continue; for example, where the joint-claim couple start a family, the JSA claim will change to a single claim for the whole family. The Agreement may continue and be reviewed.

Paragraph 7: Income and capital

Paragraph 7 inserts new subsections (2A) and (2B) into section 13 of the Jobseekers Act to adapt it for the purposes of joint-claim couples. Section 13 deals with the treatment of income and capital on a claim for income-based JSA.

Paragraph 8: Trade disputes and joint-claim couples

This paragraph inserts a new section 15A into the Jobseekers Act. Sections 14 and 15 of the Jobseekers Act will have effect in relation to joint-claim couples in accordance with the new section 15A.

Currently a person involved in a trade dispute is not entitled to either contribution-based or income-based JSA. However, the partner of the person involved in the trade dispute may make a claim for income-based JSA for herself and any dependants, but no part of the allowance is payable for the person involved in the trade dispute.

The intention of new section 15A is to preserve the current situation with respect to joint-claim couples. Where both members of the couple are involved in a trade dispute and therefore prevented by section 14 from being entitled to JSA, the couple will not be entitled to joint-claim JSA. But where only one member is prevented from being entitled to JSA as a result of section 14, this alone will not prevent the couple from being entitled to a joint-claim JSA.

Currently where the partner of someone who is prevented from claiming JSA by virtue of section 14 makes a claim, the couple receives 50% of the appropriate applicable amount and premiums for the couple. A joint-claim couple who made a claim relying on section 15A would also receive an equivalent amount of JSA.

Paragraphs 9-10: Circumstances in which Jobseeker's Allowance is not payable

Paragraph 10 inserts two new sections, 20A and 20B, into the Jobseekers Act. These parallel the existing sections 19 and 20, but apply to joint claims. Paragraph 9 inserts a reference to the new sections.

• Section 19 of the Jobseekers Act provides circumstances in which JSA is not payable (sanctions). It provides for JSA not to be payable where, for example, the claimant has failed to apply for employment notified to him or has voluntarily left employment without good cause. Section 20 provides for exemptions to section 19.

Payment where one member of the joint-claim couple has breached new section 20A

Where one of the joint claimants breaches sub-paragraph (2)(a)-(g) of new section 20A, the claimant who has not contravened JSA rules will receive the amount of JSA payment equivalent to that which would be payable if he were to claim JSA on his own behalf. It is intended that regulations under the power provided in sub-paragraph (6) of new section 20A will provide that where the claimant who has not breached the rules meets JSA contribution conditions, he will be paid an amount of income-based JSA equivalent to the rate of contribution-based JSA for the duration of the period of the sanction, provided he continues to meet JSA entitlement conditions.

If he does not meet the JSA contribution conditions, he will be paid an amount equivalent to the amount of income-based JSA that he would receive were he to make a claim for income-based JSA on behalf of himself only (taking into account the couple's income and capital in determining the amount), provided he continues to meet JSA entitlement conditions.

• New section 20A(7) provides that if the claimant who normally receives the payment of JSA is the person who has breached new section 20A, payment of the single rate of JSA for the duration of the sanction will be made directly to the other claimant member of the couple.

• Where both claimants breach JSA rules, new section 20A(5)(a) provides that no JSA will be paid for the period during which both are subject to sanctions.

It is intended that regulations will also provide that where certain breaches of JSA rules attract a stoppage of JSA for two weeks for the first breach and a stoppage of JSA for four weeks for the second breach, the four week stoppage of JSA will apply only where the same partner on a joint claim contravenes the JSA rules more than once.

Paragraph 11: Interpretation

This paragraph amends the definition of "claimant" as contained in section 35 of the Jobseeker's Act to include a joint-claim couple claiming a joint-claim JSA or each member of such a couple as the context requires. It also inserts definitions for "joint-claim couple", "joint-claim Jobseeker's Allowance" and "the nominated member".

Paragraph 12: Entitlement without satisfying conditions

This paragraph amends Schedule 1 to the Jobseekers Act (Jobseeker's Allowance: supplementary provisions).

Sub-paragraph (2) inserts a new paragraph 8A which gives a regulation-making power enabling the Secretary of State to prescribe circumstances in which a joint-claim couple is entitled to joint-claim JSA even though only one member of the couple satisfies the conditions referred to in new section 1(2B)(b).

Exemptions are necessary as there will be some people who are unable to meet the JSA conditions where, for example, because of illness or disability they do not meet the capability condition (in section 1(2)(f)). Others who have extensive caring responsibilities or are studying full-time will not be able to meet the availability condition (in section 1(2)(a)).

The intention is not to disentitle such joint-claim couples where one member of the couple cannot meet the conditions either at the onset of the joint claim or during the claim. (Currently, the partner is treated as a dependant on the JSA claim and is not required to meet the JSA conditions.)

Regulations will specify the persons to whom the provision applies, but it is intended that the categories will include persons caring for another person, persons incapable of work and those studying full-time in certain circumstances.

Transition to a joint claim

New paragraph 8A(2) of Schedule 1 to the Jobseekers Act provides for regulations to prescribe circumstances in which a couple is entitled to income-based JSA, without having made a joint claim for it. Such a couple will be called a transitional couple defined as one where a member is entitled to income-based JSA on the coming into force of Schedule 7 to the Bill. The intention is that the couple will be treated as meeting JSA conditions of entitlement until the new claimant member of the couple is required to attend and provide information in connection with the joint claim.

Claims yet to be determined and suspended payments

Sub-paragraphs (4), (5) and (6) of paragraph 12 amend paragraph 10 of Schedule 1 to the Jobseekers Act (claims yet to be determined and suspended payments) to allow regulations to prescribe when a joint-claim couple or a member of such a couple may be treated as entitled to income-based JSA before the claim has been decided. It is intended that regulations will specify the same circumstances as currently provided for JSA claimants in regulations.

They also allow for income-based JSA to be paid to the joint-claim couple or a member of such a couple where payment has been suspended. It is intended that regulations will specify the same circumstances as currently provided for JSA claimants in regulations.

Paragraph 13: Interpretation of Chapter II of Part I of the Social Security Act 1998

Paragraph 13 amends section 39(1) of the Social Security Act 1998 so that members of joint claim couples have a right of appeal jointly or separately.