Welfare Reform Bill


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The Parliamentary Under-Secretary of State for Work and Pensions (Jonathan Shaw): I welcome my hon. Friend’s amendments.
Following on from the previous set of amendments regarding people with a mental health issue, we are now talking about people with a learning disability. It is quite right that this Committee probes and asks questions about particular people for whom we want to ensure that we provide the support. We do not want to be in a position where people are unduly penalised for the wrong reason because someone, in working with them, misses their particular condition or is not particularly sympathetic. I am thus grateful for the opportunity to hopefully provide some words of reassurance to the Committee and to those following our proceedings.
We will set out provisions. There will be a thorough set of provisions in place to protect people with learning disabilities. That will ensure that the claimant understands the requirement of them and it will provide safeguards—if it emerges later that the claimant has misunderstood the requirement. A direction can only be issued as a last resort and must be suitable and achievable for the individual concerned. That is especially important if someone has a learning disability and requires specific support in order to undertake it.
Advisers working with employment and support allowance claimants are also provided with specialist advice from Department of Work and Pensions doctors, about the kinds of activities that would be appropriate for a person to undertake through the work-focused, health-related assessment. This assessment is completed as part of the medical assessment process at the start of the ESA claim. Every customer has the right to be accompanied to interviews by a carer or an advocate, to help them interpret and understand the advice and requirements being set out to them. It is also an important point that we would expect personal advisers, when assessing someone, to suggest or ask the individual if they wanted to bring along an advocate, a carer or adviser, if the personal adviser thought that individual would benefit in terms of understanding what was required.
As stated in both clauses 2 and 8, any direction to an activity would have to be reasonable, and must have regard for a person’s circumstances. Therefore, any activity that is directed by the adviser has to be appropriate to their capabilities and the circumstances in which they find themselves. If, for any reason, the claimant was directed into an activity which was felt to be inappropriate, or where they had not understood the requirements fully, the claimant could ask for the direction to be reconsidered. Again, I can anticipate my hon. Friend thinking “well, how would they know that this activity was inappropriate?” I refer back to the previous set of amendments which we discussed and say we are piloting these proposals. It is important that we review them and have regard, particularly, for people with learning disabilities, to make sure that they have the support and understand what we are trying to do to assist them.
All members of the Committee will endorse the sentiment I expressed in earlier remarks—we want to see a transformation. There is a pool of talent among people with learning disabilities who want to get a job, and we want to help them. It is reasonable for us to say that we need people to engage with us in order to make that possible. My hon. Friend will know that if someone is on ESA, then they obviously have had an assessment and support, but there are those people on JSA, where perhaps the learning disability will not be so profound—someone could miss that particular issue. We will keep that under review but we believe there are safeguards built in.
I do not think, as my right hon. Friend the Minister for Employment and Welfare Reform has said, that it is appropriate to have such detail on the face of the Bill. We will—as he has said and I will say—provide that in regulations. I am pleased that my hon. Friend the Member for Sheffield, Heeley has found the document commissioned by my right hon. Friend helpful. Indeed, we hope all Committee members do. We do not want to stipulate support because, as we say, it is about tailoring to individual needs. I hope I can send a very clear signal about what the Government’s intention is, to help these particular people in finding employment—not having a punitive regime, that actually trips people up, rather than one that assists people to engage with someone. Ultimately, that is what we want. The sanction will be there, but we do not anticipate it being used a great deal. Certainly, from the pilots and the pathways to work programme it was used very infrequently. However, it does provide, in the right circumstances, a carrot-shaped stick in order for some people to engage.
Meg Munn: I thank my hon. Friend for his words. It has been enormously important to get that information on record, so that it is clear what the Government’s intention is in relation to people with learning disabilities. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Clappison: I beg to move amendment 12, in clause 2, page 7, line 10, leave out subsection (3).
Proposed new section 2F of the Social Security Administration Act 1992 provides that by direction, the Secretary of State may specify what is and what is not to be regarded as work-related activity in any individual case. Can I say at the outset that we welcome a personalised approach, tailoring directions to the individual concerned? We hasten to add that we need to see what this will mean in practice. That is the important question, as far as we are concerned.
However, subsection (3) of the proposed new section, relating to directions about work-related activity, contains a retrospective power for a direction of this nature—what is and what is not to be regarded as a work-related activity. It is a retrospective power to have effect from a time before the giving of the direction in the case where it varies or revokes a previous direction. I think I am on reasonably firm ground in saying that this is a retrospective power, because the notes on clauses admit that it may be so. Were a retrospective power to be granted, it would be important to pause for a moment.
That is not to say that we are opposing this tooth and nail, or are seeking a Division on it. We would be doing less than our duty of parliamentary scrutiny, though, if we were not to raise the question of a retrospective power, given the general approach toward those powers in the line long of authorities on them, and a possible European dimension on such powers as well.
We do feel that it is important, wherever a retrospective power is granted, to at least ask questions and seek to elicit more information. In this case, what we need to know from the Government is just how this retrospective power would be used. We note that it would be retrospective in an individual case. Under the terms of this power, it would be possible for an individual who had been carrying out what they believed to be work-related activity, to have a later direction made saying that it was not work-related activity after all.
As always in cases of retrospective legislation, there is an individual aspect to it: what individuals knew at the time, what they believed to be the case and subsequent variations, and the question of how fair that is to individuals. I do not want to make too much of that because it is a general point about retrospective legislation. I just feel that we need to give pause for a moment and ask the Government for more information about it.
Mr. McNulty: I dislike undue retrospectivity as much as I do undue specificity. I do take the broad thrust of what the hon. Gentleman is saying, but if we are to be, as we declared, as flexible as possible, then we need 2F(3) to sit with 2F(1) and 2F(2). There may be occasions where a person’s circumstances have changed, and the work-related activity they have been directed to undertake cannot be completed—because of the illness of a child, for example, or because the childcare has fallen through. Without the catch-all of proposed new section 2F(3), there could be an interpretation of the law that such a person should be sanctioned regardless. So, this is positive retrospectivity rather than negative. As a norm, the UK legal system would decry retrospectivity in the law.
Another example would be where, because of a change in circumstances, a person has agreed with their adviser to engage in activity that is not exactly the same as they were directed into, but which nevertheless was acceptable to the adviser as a suitable alternative. Again, without proposed new section 2F(3), the person could be penalised. This amendment would prevent a personal adviser issuing a revised direction to fit the acceptable activity already undertaken.
So by definition, and to keep up with potential changes in someone’s circumstances, there has to be that degree of retrospectivity. As the Under-Secretary of State for Work and Pensions, my hon. Friend the Member for Chatham and Aylesford, has already said, we do not want to sanction or punish people unduly, and we will want to use those powers in the Bill for sanctions as sparingly as possible. The process is much more about the help and support we can afford people rather than rushing to sanctions. Notwithstanding the hon. Gentleman’s points about retrospectivity, which I agree with, in this instance it is important to have that catch-all to afford the adviser the degree of flexibility which we all seek.
4.45 pm
Sitting suspended for a Division in the House.
5 pm
On resuming—
The Chairman: The Minister was reaching the conclusion of his speech.
Mr. McNulty: And therefore I ask that the amendment be either withdrawn or, if pressed to a Division, resisted.
Mr. Clappison: As I hope that I have indicated already, this is a probing amendment and I shall seek the Committee’s leave to withdraw it on the basis that I have drawn some reassurance from the Minister’s entirely appropriate remarks. Having heard the Minister’s two examples, however, I am not entirely convinced by the aim. In the first example, he said that somebody’s ill health might prevent them from carrying out their original direction, but I am not entirely convinced that the aim of doing justice to that person could not be achieved by a simple variation rather than by a revocation—varying the terms of the order, so that the completed part stood but was varied to something more suitable to the person’s current health conditions. I am not sure that variation would not be a better way of dealing with it than revocation, when what was directed in the first place would no longer count because it would have been revoked. However, I draw reassurance from the Minister’s explanation of the intention—that, as far as the individual claimant is concerned, the provision is intended to be positive. In the light of his helpful remarks about that positivity and its effect on any subsequent interpretation of the provisions, should it come to that, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Clappison: I beg to move amendment 13, in clause 2, page 8, line 27, leave out paragraph (a).
The Chairman: With this it will be convenient to discuss amendment 21, in clause 23, page 33, line 11, leave out paragraph (a).
Mr. Clappison: Again, amendment 13 is a probing amendment, whereby we simply seek clarification of some possible legal issues. The provision concerns contracting out to welfare to work providers and their legal position—where the Secretary of State has contracted out functions to an external provider.
Amendment 21 raises the same issues in relation to contracting out in jobseekers cases. Amendment 13 deals with contracting out of work-related activity matters. Broadly, proposed new section 2G of the Social Security Administration Act 1992 will enable the Secretary of State to authorise providers to carry out functions on his behalf, while proposed new subsections (7) and (8) concern the legal position of the Secretary of State and the provider. Proposed new subsection (7) appears to provide that anything done or omitted to be done by an authorised person is to be treated as being done or omitted to be done by the Secretary of State, so it appears that legal liability for what the provider does will rest with the Secretary of State. However, proposed new subsection (8) provides that that does not apply
“for the purposes of so much of any contract made between the authorised person and the Secretary of State as relates to the exercise of the function”.
We would like some clarification of the provision’s implications. For example, is it the Government’s intention that the Secretary of State can, by contractual terms, exclude himself from liability for the actions or omissions of the provider? Can he thus exclude himself from liability under the civil law? We raise that issue to seek clarification from the Government about what proposed new subsection (8) means. Proposed new subsection (7) says one thing but proposed new subsection (8) appears to cater for an entirely different circumstance and to go in the opposite direction. In case there is any question, this is a probing amendment, however. We seek clarification, we think it right to do so when there may be a legal issue and I wait with interest to hear what the Minister has to say.
Mr. McNulty: I understand the confusion. The Committee will know that these laws are written in something approximating English, but not quite English—we have to allow for appropriate distinctions. The hon. Gentleman is right to suggest that proposed new section 2G(7) provides that anything done or omitted to be done by an authorised person, or an employee of that authorised person, is to be treated as if done by the Secretary of State. It is terribly clumsy, but we still have to afford the Secretary of State the right to sue those who contract out for breach of contract, or any other aspect of contract law. The clumsy way of doing that is to say in subsection (7) that all of what can and should be done is actually the Secretary of State’s duty, and rightly and properly so, save for those contracted out subsequently and passed on to a contractor to do on behalf of the Secretary of State. That is terribly clumsy, but I think the import of them is to have the Secretary of State fully responsible for what are clearly his duties under a raft of previous social security legislation. Where, as in the two instances that the hon. Gentleman has alighted upon, there is a clear contractual obligation on a third party—where duties have been contracted out—there must still be scope for the Secretary of State, notwithstanding what subsection (7) says about his duties, to afford the proper contractual relationship with that other body in what is the normal contracting practice.
It is saying that here is the sum of the Secretary of State’s responsibilities and the Bill makes provision for part of that to be contracted out. We must reinvent and rebuild under contractual law the ability of the Secretary of State and the Government to sue or challenge, at the very least, the outside contractor for those elements that have been contracted out subsequently. Even the explanation is clumsy, which I understand, but the interplay between subsections (7) and (8) is important.
 
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