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These notes refer to the Welfare Reform Bill as introduced in the House of Commons on 14 January 2009 [Bill 8]
WELFARE REFORM BILL
EXPLANATORY NOTES
INTRODUCTION
1. These Explanatory Notes relate to the Welfare Reform Bill as introduced in the House of Commons on 14 January 2009. They have been prepared by the Department for Work and Pensions in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The Notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
BACKGROUND AND SUMMARY
3. In July 2008 the Government published a consultation paper on proposals for welfare reform No one written off: reforming welfare to reward responsibility (Cm 7363). Over 1,000 consultation responses were received; four national consultation events were held; Ministers and officials participated in regional and local events to allow stakeholders and clients opportunity to voice their views. At the end of the consultation period, and following the publication of an independent review of conditionality in the benefits system by Professor Paul Gregg Realising potential: A vision for personalised conditionality and support, a White Paper Raising expectations and increasing support: reforming welfare for the future (Cm 7506) was published. This sets out the Government’s proposals for the continuing reform of the welfare state. These started with the introduction of Jobcentre Plus and the New Deals, and have progressed most recently to the introduction of the employment and support allowance in October 2008 and new obligations for lone parents with older children in November 2008.
4. Not all of the proposals set out in the White Paper require primary legislation. But this Bill will give effect to those proposals that do.
Bill 8-EN 54/4
5. This Bill also fulfils the commitment made in the White Paper Joint birth registration: recording responsibility (Cm7293) to legislate in order to make joint birth registration by unmarried couples the normal, default position, thereby enabling unmarried fathers to have their names entered on the birth register and to gain parental responsibility by this route. The aim of increasing parental responsibility is also the reason for including further changes to child maintenance legislation, building on the Child Maintenance and Other Payments Act 2008.
6. The Bill consists of five Parts:
Part 2 - Disabled people: right to control provision of services
Part 3 - Child maintenance
Part 4 - Birth Registration
Part 5 - Miscellaneous and supplementary
7. The following paragraphs summarise those Parts, and are followed by detailed explanations of the individual clauses and Schedules.
Part 1 - Social security
8. The aim of much of this Part of the Bill is to move towards greater flexibility and personalisation of benefit conditionality and to reduce the number of working age benefits by abolishing income support. The Bill contains provisions and confers regulation-making powers which will be used to increase support for benefit claimants and, where relevant, their partners with a view to improving their employment prospects or preparing them for work in the future. The provisions also set out the framework necessary for the future abolition of income support, and the movement of claimants of that benefit to jobseeker’s allowance with differing degrees of conditionality, or to employment and support allowance.
9. ‘Work for your benefit schemes’ will be piloted for long-term jobseekers who have received increasingly intensive support from Jobcentre Plus and specialist back-to-work providers. They will give jobseekers the opportunity to develop their work skills through undertaking full time work-experience. Work for your benefit schemes will also be piloted for some jobseekers who are likely to benefit from the scheme at an earlier stage of unemployment.
10. The schemes will be mandatory and aim to help jobseekers find sustained work in the open labour market. Some jobseekers are likely to face particular barriers due to the length of time they have been away from employment. Work for your benefit schemes will enable them to benefit from the opportunity to develop work habits and routines that they may not have experienced for some time.
11. All lone parents on income support are required to participate in work-focused interviews (WFIs) as part of their claim. The lone parent WFI regime has been expanded over time and since April 2008 has required all lone parents to undergo regular interviews, generally every six months.
12. The WFIs aim to encourage more lone parents to take up sustainable work and ensure that all lone parents are aware of the help and support available to them. Since October 2005 lone parents have been required to agree a mandatory action plan with their Jobcentre Plus Personal Advisor as a condition of completing their initial WFI, helping lone parents and their advisors concentrate on their longer-term goals and set the steps they can take or are taking to prepare for work.
13. Lone parents who wish to take up the offer of greater support to move towards employment can volunteer for the New Deal for Lone Parents (NDLP) programme. This aims to help and encourage lone parents to improve their job readiness and employment opportunities and gain independence through working. This is achieved through providing access to various elements of assistance and provision made available through a New Deal Personal Adviser.
14. The Government has already started to increase the obligation for lone parents with older children to look for work. By 2010 this will extend to lone parents with a youngest child aged seven and over by removing entitlement to income support solely on the grounds of being a lone parent. Those who are able to work can claim jobseeker’s allowance instead, and those with a disability or health condition may claim employment and support allowance.
15. Partners of jobseeker’s allowance claimants with children are also required to take part in a compulsory WFI every six months, whilst partners of benefit claimants in receipt of income support, incapacity benefit or employment and support allowance are required to attend only one WFI six months into their partner’s claim. Similarly to lone parents, a partner who wishes to volunteer for extra support following a WFI is able to take up the New Deal for Partners (NDP) programme. To support more partners into employment, there are powers in this Bill which may be applied to require more activity from partners in return for benefits.
16. Acknowledging that more needs to be done to support parents with younger children, the Government proposes to evaluate and introduce new measures for lone parents and partners of benefit recipients with younger children, in line with the long-term vision for personalised conditionality proposed by Professor Paul Gregg in his independent report Realising potential: A vision for personalised conditionality and support.
17. The proposed powers in the Bill will underpin Professor Gregg’s recommendation that in the long-term parents with younger children should generally be part of a ‘Progression to Work’ group, for whom an immediate return to work is not appropriate, but is a genuine possibility with time, encouragement and support.
18. The intention is to establish a personalised conditionality regime which is tailored to the individual’s circumstances, so that preparation for work becomes a natural progression rather than a sudden step up. The Bill includes provision that will ensure lone parents and partners of benefit recipients in the Progression to Work group are required to undertake action planning and work-related activities. These actions and activities are broadly defined to ensure they are appropriate to the needs and circumstances of each individual. In instances where work-related activity is identified which will improve their employment prospects, for example as a result of a skills health check, individuals may be directed to carry this out.
19. Provision is also made to direct an employment and support allowance (ESA) claimant to undertake a specific work-related activity in certain circumstances. This extends the provision in section 13 of the Welfare Reform Act 2007 which requires ESA claimants (with the exception of those in the support group) to undertake a work-related activity of their choice.
20. The White Paper set out the Government’s view that for a number of people the biggest barrier to work was their drug use. Clause 9 and Schedule 3 provide for problem drugs users to be directed to make, and comply with, a rehabilitation plan. In some circumstances they could also be required to undergo drug testing.
21. In addition to making provision concerning conditionality, this Part also amends the contribution conditions for both contributory jobseeker’s allowance and employment and support allowance. This will mean that in order to qualify, new claimants will normally need to have paid national insurance contributions for at least 26 weeks in one of the last two tax years prior to the claim. There is also provision to remove an adult dependency increase from maternity allowance and from carer’s allowance.
22. This Part of the Bill also includes measures to reform the Social Fund. The discretionary Social Fund is a cash-limited system of one-off payments, mainly to people receiving pension credit, income support, income-related employment and support allowance or income-based jobseeker’s allowance — although crisis loans are available to anyone, whether on benefit or not, who are without the resources to meet their immediate, urgent needs.
23. In November 2008 the Government published a consultation document The Social Fund: A new approach, which sought views on the merits of taking legislative powers to allow some credit unions, and similar organisations from the third sector, to take over the provision of credit to social fund customers in their areas, under contract to the Department for Work and Pensions. Following the end of that consultation the decision was taken to implement this proposal, and clauses are therefore included in the Bill allowing for the provision of ‘external provider social loans’.
24. Every year thousands of people make a social fund application because they are without funds but are awaiting the award or payment of benefit. This Part includes a provision which extends the existing provisions for making and recovering a payment of benefit on account. This will replace the need for people to apply for social fund crisis loans on the grounds that their health or safety is at risk.
25. Part 1 also includes amendments to the current provisions dealing with the consequences of benefit fraud. The amendments allow for the loss of benefit following one or more conviction, penalty or caution for benefit fraud. Clause 20 also introduces a new sanction provision for those in receipt of jobseeker’s allowance who have been convicted or cautioned for violence against anyone exercising functions under the Jobseekers Act 1995.
Part 2 - Disabled people: right to control provision of services
26. In 2005, the Prime Minister’s Strategy Unit published the report ‘Improving the Life Chances of Disabled People’. This report set out a cross-government strategy to improve disabled people’s opportunities and quality of life, with the commitment of achieving full equality for disabled people by 2025. The report recognised that disabled people are often expected to fit into an inflexible framework of service provision, rather than services being personalised to respond to individual need. Subsequent publications including the concordat ‘Putting People First’ (2007) and the ‘Independent Living Strategy’ (2008) have outlined commitments to creating a system that allows disabled people to have maximum choice and control over the support services they receive.
27. Part 2 confers regulation-making powers that can be used to give adult disabled people greater choice and control over the way in which relevant services (defined in clause 29) are provided by relevant authorities (defined in clause 30). The Government intends that regulations should initially make pilot schemes having temporary effect, so Part 2 includes provisions allowing this. It also introduces a statutory requirement to consult over specified draft regulations.
Part 3 - Child maintenance
28. In both the Welfare Reform Green and White Papers the Government said it wished to look at the enforcement of child maintenance. Currently the courts have the power to disqualify from driving or commit to prison non-resident parents who have failed to pay child maintenance. The Child Maintenance and Other Payments Act 2008 added to these powers the ability to curfew or to disqualify from holding or obtaining travel authorisation. This Part makes provision to allow the Child
Maintenance and Enforcement Commission to make the decision in the case of disqualification for holding or obtaining a driving licence or travel authorisation, with the court dealing with appeals against the Commission’s decision.
29. This Part also includes amendments to the current statutory provisions relating to information offences.
Part 4 - Birth registration
30. In June 2008 the Government announced in the White Paper Joint birth registration: recording responsibility its intention to promote child welfare and parental responsibility by ensuring, where possible, that unmarried parents jointly register the birth of their children. In order to achieve this objective, the Bill makes a number of amendments to the Births and Deaths Registration Act 1953 (‘the 1953 Act’) and amendments to the Children Act 1989 relating to how parental responsibility is acquired by unmarried fathers.
31. Whereas a man who is married to a child’s mother has an automatic right to be recorded as the father of the child on the birth register (since he is presumed in law to be the father), this is not the case for unmarried fathers. Under existing legislation, a father who is not married to the mother of his child at the time of the child’s birth may have his details entered on the birth register only with the co-operation of the child’s mother or where there is a court finding of his paternity.
32. The amendments increase the ways in which an unmarried father may register jointly with the child’s mother. They provide for a new form of declaration which the father may complete, and which may be countersigned by a broader range of witnesses than the current statutory declaration, making the process less costly and bureaucratic than the current system. In addition, they make provision for the registrar to include a man’s details on the birth register where a paternity test carried out by an accredited body shows him to be the father.
33. As well as widening the routes through which unmarried couples may jointly register, the provisions included in Part 1 of Schedule 6 confer (and contain regulation-making powers which will allow to be conferred) additional rights and duties on both unmarried mothers and fathers, in order to ensure that unmarried fathers’ details are entered on the birth register in as many cases as possible.
34. In the majority of cases, unmarried parents will continue to register jointly in co-operation with each other. In most of the remaining cases, the mother will be required to provide the father’s details to the registrar, in order to enable the registrar to contact the father and ascertain and include his details on the birth register. Similarly, an unmarried father will have a corresponding right to provide his details to the registrar independently of the mother, and to have his name entered on the register subject to acknowledgement by the mother that he is the child’s father. Whilst in practice such approaches should be the exception, the provisions allow in this way for joint registration by couples who are not co-operating with each other. There will, however, be some cases where a mother will be exempt from the duty to provide the father’s details, in which case sole registration will take place. These will include, for example, cases where the mother does not know the identity of the father (or his whereabouts), or where she fears that her safety - or that of her child - might be put at risk were the father to be contacted.
35. The structure of the proposed new legislation reflects the practical differences between registration by a married father and an unmarried father, not least the difficulty in identifying a man as the father where he is not married to the child’s mother. When the 1953 Act was introduced as a consolidation of legislation dating from the 19th century, the birth of a child to unmarried parents was very much the exception. Although amendments made by the Children Act 1989 and other family law measures have extended the provisions for registering unmarried fathers the existing legislative framework assumes that a majority of parents will be married to each other and, if not, will co-operate with each other in registering their child’s birth. It does not adequately address the problems which may arise when this is not the case. In addition to introducing new rights and responsibilities for unmarried mothers and fathers, the Government is therefore seeking through the amendments to the 1953 Act to clarify the legal position for parents and to bring the legislation up to date.
36. The proposed amendments contain provisions which would enable regulations to be made conferring new duties on an (alleged) father who is not married to the mother to provide information concerning a birth, and would strengthen his right to provide such information. The 1953 Act already treats an unmarried father as a qualified informant concerning the birth in certain circumstances. Under the proposed new provisions, a man will also be a qualified informant if he is shown through an accredited paternity test to be the father. Where this is the case, regulations may provide for his details to be recorded on the register.
37. The new provisions will allow regulations to provide that where a man has been named as the father by the child’s mother, he will be under a duty to provide the information requested by the registrar and - if he acknowledges that he is the father - to have his details recorded on the register.
38. Both the 1953 Act and the Children Act 1989 refer to a child whose father and mother were, or were not, married to each other at the time of the child’s birth. Such references are to be read in accordance with section 1 of the Family Law Reform Act 1987 (‘the 1987 Act’) which imports a wider meaning than the words alone suggest. For example, in accordance with the 1987 Act, a time of a child’s birth extends to include any time beginning with the insemination or conception and ending with the child’s birth. The effect of this is that where a child’s parents were married at the time of that child’s conception, the provisions under the 1953 Act relating to the parents of a child who were married to each other at the time of the child’s birth will apply even if the parents are no longer married at the time of the child’s actual birth. The 1987 Act also treats a person who has a parent by virtue of provisions of the Human Fertilisation and Embryology Act 2008 (‘the HFE Act’) who is the civil partner of the child’s mother, as a person whose father and mother were married to each other at the time of that person’s birth.
39. As a result of provisions in the HFE Act, the civil partner of a child’s biological mother who is treated as a parent under that Act has similar rights to a married father in relation to birth registration. A second female parent who is a parent by virtue of section 43 of the HFE Act has rights in relation to birth registration in line with those of an unmarried father.
40. Under section 43 of the HFE Act, for a woman who is not the civil partner of the mother to be regarded as the second female parent, both the woman and the mother must have consented to the woman being treated as the second parent of any child resulting from licensed treatment.
41. Where relevant, the new provisions relating to joint birth registration that are applicable to unmarried fathers will also apply to a woman who is a parent by virtue of section 43 of the HFE Act.
Part 5 - Miscellaneous and supplementary
42. This Part contains clauses dealing with consequential amendments, repeals and revocations of other legislation, financial provisions, the extent of the Bill, commencement of provisions of the Bill, and the short title.
TERRITORIAL EXTENT
43. Most provisions in this Bill extend to England and Wales and Scotland, but not to Northern Ireland. Although the provisions in this Bill are transferred matters under the Northern Ireland Act 1998 and Northern Ireland has its own social security legislation, there is a long-standing policy of parity in this area.
44. Clause 19 and Schedule 4 (loss of benefit provisions), extend to England and Wales, Scotland and Northern Ireland.
45. Part 4 and Schedule 6, which relate to birth registration, extend to England and Wales only.
46. The other provisions of the Bill extend to England and Wales and Scotland.
47. In general, the provisions of the Bill apply to Wales in the same way as they apply to England. The exception is that clause 35 enables regulations under clause 31 to be made by the Welsh ministers in certain cases.
48. Amendments, repeals and revocations made by this Bill have the same extent as the provision which is being amended, repealed or revoked. The only exception is that the amendment of the Population (Statistics) Act 1938 in Schedule 6 does not extend to Scotland.
49. At Introduction this Bill contains provisions that trigger the Sewel Convention. The provisions confer regulation-making powers relating to control by disabled people over the way in which services are provided for them. The Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. If there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.
COMMENTARY ON CLAUSES
Part 1: Social security
Clause 1: Schemes for assisting persons to obtain employment: ‘work for your benefit’ schemes etc.
50. This clause inserts two new sections, section 17A (schemes for assisting persons to obtain employment: ‘work for your benefit’ schemes etc.) and section 17B (section 17A: supplemental) into the Jobseekers Act 1995 (c. 18).
51. Section 17A(1), which is inserted by subsection (2), enables the Secretary of State to make provision in regulations for or in connection with imposing a requirement on jobseeker’s allowance claimants to participate in schemes that are designed to assist them to obtain employment.
52. In particular, these regulations may impose a requirement on claimants to undertake work or work-related activity as part of a ‘work for your benefit‘ scheme.
53. The intention is to pilot ‘work for your benefit’ schemes in limited geographical areas from 2010 in order to assess their effectiveness. This would be achieved by making regulations using the powers in section 29 (pilot schemes) of the Jobseekers Act 1995 (as amended - see clause 21). Subsequent implementation would be subject to the outcome of the pilots and affordability.
54. Section 17A(1) provides for the regulations to set out the circumstances in which jobseeker’s allowance claimants are required to participate in schemes under this section. The Government intends to use these powers to require a proportion of long-term unemployed claimants who reach the end of a Flexible New Deal programme without finding work to take part in a ‘work for your benefit’ pilot
scheme. The Government envisages that Jobcentre Plus personal advisers will be able to require other jobseeker’s allowance claimants to take part in a pilot scheme if the adviser considers that participation would benefit the individual concerned.
55. As well as undertaking full-time work or work-related activity it is also envisaged that participants in ‘work for your benefit’ pilot schemes will be provided with relevant employment support.
56. Section 17A(2) makes it clear that the regulations may require claimants to undertake work or a work-related activity during a prescribed period with a view to improving their chances of finding employment. The Government envisages that claimants may participate in ‘work for your benefit’ pilot schemes for up to six months.
57. Section 17A(3) defines ‘work-related activity’ as activity which would make it more likely that the participant will obtain or remain in work or be able to do so.
58. Section 17A(4) precludes regulations made under subsection (1) from applying to jobseeker’s allowance claimants who are not required to satisfy the jobseeking conditions. These are the conditions set out in section 1A(5)(a) to (c) of the Jobseekers Act 1995 (see clause 3(3) - namely that a person is available for work, has a current jobseeker’s agreement, and is actively seeking employment). The Government envisages the precluded groups will include lone parents with younger children who are moved to jobseeker’s allowance after the abolition of income support (see clause 7).
59. Section 17A(5) provides examples of provisions that may be included in regulations made under section 17A(1).
60. Section 17A(5)(d) enables regulations to provide that benefit payments may be withheld or reduced where a claimant has failed to comply with the regulations and he or she does not show good cause for the failure within the period specified in regulations. If good cause is shown, benefit will continue to be paid. The Government intends that good cause for not participating in a ‘work for your benefit’ scheme will be consistent with the good cause provisions currently contained in regulations relating to jobseeker’s allowance. An example of good cause would be dealing with a domestic emergency.
61. Subsection (6) provides that a jobseeker’s allowance is not payable for a period specified in regulations where a claimant has failed to comply with regulations made under section 17A. This subsection also provides that the period specified in the regulations in respect of which a jobseeker’s allowance is not payable must be at least one week and not more than 26 weeks.
62. Section 17A(7) provides that the appropriate consequence if a member of a joint-claim couple fails to comply with regulations is that he or she be treated as subject to sanctions for the purpose of section 20A. The period for which the full allowance is not payable must be at least one week and not more than 26 weeks.
63. Subsections (8) and (9) of section 17A make provision for claimants to receive an income-based jobseeker’s allowance even though provision made by the regulations may prevent it. This is to enable claimants who are subject to a sanction to receive hardship payments. Regulations may prescribe the rate and period of such payments and the circumstances in which they are payable. Subsection (8) does not apply in the case of a joint-claim jobseeker’s allowance. Provision for such payments is contained in section 20B(4) of the Jobseekers Act 1995.
64. New section 17B, which is also inserted in the Jobseekers Act 1995 by subsection (2), contains provisions that are supplemental to section 17A. These provisions relate to the practical operation of schemes prescribed under section 17A and provide support for any contractual arrangements the Secretary of State may make regarding their delivery.
65. Subsection (1) enables the Secretary of State to associate himself, financially or otherwise, with any scheme falling within section 17A(1). For example, ‘work for your benefit’ pilot schemes may involve contracting with non-Government organisations and providing funding for relevant work-related activity and employment support. The Secretary of State may also wish to make payments to persons participating in the schemes to cover certain expenses, such as the cost of public transport to the host organisation.
66. Subsections (2) to (5) allow the Scottish and the Welsh Ministers to continue to make payments to those delivering schemes (including the Secretary of State) under section 17A. Payments made in this way must be for facilities considered capable of supporting the training in Scotland or Wales of persons for employment. This means that Scottish and Welsh Ministers retain current powers in relation to schemes made under section 60 (special schemes for claimants for jobseeker’s allowance) of the Welfare Reform and Pensions Act 1999 (c. 30). Provision is made for the repeal of section 60 in clause 43 and Part 3 of Schedule 7.
67. Subsection (6) enables the Secretary of State, where necessary, to use existing powers in section 26 (status of trainees etc.) of the Employment Act 1988 to make an order dealing with the employment status of claimants participating in schemes under section 17A and detailing how any income gained while on a scheme should be treated for the purpose of other relevant legislation (for example, legislation relating to tax or National Insurance contributions). This follows the same approach as in section 60(8) of the Welfare Reform and Pensions Act 1999.
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