3. Letter to the Chair, from Rt Hon Iain
Duncan Smith MP, Secretary of State for Work and Pensions, 26
September 2011
Thank you for your letter dated 20 July 2011 requesting
further explanation of the Government's view that the proposals
in the Bill are compatible with the UK's human rights obligations.
The attached paper sets out the Government's response to the Committee's
questions.
I would like to thank the Committee for agreeing
to extend the proposed deadline for reply.
26 September 2011
Response to Welfare Reform Bill letter, 20
July 2011
(Q 1) I would be grateful if you could explain
whether the Government has conducted any analysis of the proposals
in the Bill for their compatibility with international human rights
law, including, in particular, the obligations of the UK under
a) the International Covenant on Economic, Social and Cultural
Rights; and b) the UN Convention on the Rights of Persons with
Disabilities.
(Q 2) I would be grateful if you could provide
us with a copy of that analysis.
1. The Government has conducted a full analysis of
the proposals in the Bill for their compatibility with our obligations
under the European Convention on Human Rights (this is summarised
in the explanatory notes). It is also content that the proposals
in the Bill are compatible with our wider international human
rights obligations, insofar as these are relevant, including the
International Covenant on Economic Social and Cultural Rights
and the UN Convention on the Rights of Persons with Disabilities.
The Government is committed to protecting the rights of disabled
people, and the report that will be submitted to the United Nations
on the implementation of the Convention later this year will set
out the steps being taken. The Government does not consider that
the proposals raise any particular issues in respect of these
wider obligations such as to merit a detailed analysis.
(Q 3) Please provide a further explanation of
the Government's view that statutory changes to conditions of
entitlement to statutory benefits do not engage Article 1, Protocol
1 ECHR.
(Q 4) The Government considers that, if Article
1 Protocol 1 ECHR is engaged, the measures in the Bill are proportionate
to the legitimate aim of securing the economic well-being of the
country. The Explanatory Notes do not provide a full analysis
of the Government's views on these measures, but refer to "relevant
considerations. We would be grateful for a fuller explanation
of the Government's view on the compatibility of these proposals
with Article 1 Protocol 1 (see paragraphs 694-695 of the Explanatory
Notes).
2. Article 1 Protocol 1 does not confer a right to
receive social security benefit, nor does it guarantee a right
to a particular amount of benefit (Stec & Others v UK,
application number 65731/01 and 65900/01). The Government
therefore considers that there will be no interference with Article
1 Protocol 1 where the State changes the conditions of entitlement
to a benefit or introduces a new benefit. However, the Government
has also considered the justifications for and proportionality
of the relevant measures.
Entitlement to universal credit
3. The Government considers that in cases where a
person applies for universal credit, but does not meet one or
more of the entitlement conditions and is therefore not entitled
to universal credit, no issue can arise under Article 1 Protocol
1 because the person does not have any property right.
4. Equally, the Government considers that in cases
where a person (1) applies for universal credit; (2) meets the
conditions of entitlement and is therefore awarded the benefit;
(3) subsequently no longer meets one or more of the conditions
and is therefore disentitled, the person no longer has any property
right and there is therefore no possession for the purposes of
Article 1 Protocol 1. Where a person has met the conditions of
entitlement and is awarded benefit, the possession in the benefit
for the purposes of Article 1 Protocol 1 must be limited to the
right to the benefit for as long as the statutory conditions of
entitlement are met.
5. The changes are in any event justifiable. A re-design
of the benefits and tax credits systems which aims to create greater
incentives to work and earn money, and allows income to be subject
to a more generous taper which will mean that a claimant will
keep more of their benefits despite working and earning money,
clearly meets a legitimate aim.
6. Any change to an existing claimant's amount of
benefit will be a proportionate measure. Universal credit has
been designed to provide an appropriate structure of support for
people with no or low incomes both in and out of work. The central
aim is to smooth the transition into work by reducing the support
a person received at a consistent rate as their earnings increase.
7. The provisions in clause 37 and Schedule 6[67]
are sufficient to ensure that the Department for Work and Pensions
can design transitional protection for existing claimants in a
way which allows for sufficient notice to be given to claimants
of any change, particularly significant change. This measure will
help to ensure that the impact of any changes in benefit levels
on particular individuals is proportionate.
Condition relating to entitlement to work
8. Clauses 60-62 amend the Jobseekers Act 1995, the
Welfare Reform Act 2007 and the Social Security Contributions
and Benefits Act 1992. They make provision for 'entitlement to
work' to be introduced as a condition of entitlement for claimants
of contributory employment and support allowance (ESA (C)), contributions
based jobseekers allowance (JSA (C)), maternity allowance and
statutory payments.
9. These amendments make provision such that claimants
will be required to have an entitlement to work as a condition
of entitlement to these benefits and statutory payments. For benefits,
this requirement must be met at the point of claim. It will not
operate to remove benefit that is already in payment.
10. This proposal will operate to ensure that those
who may have been working illegally are not entitled to benefits
or payments based on their illegal employment and the National
Insurance contributions that may have been paid by them in that
employment. The amendment is made only to legislation which applies
to non means tested benefits and payments which are accessed by
virtue of the person actually being in work, or having recently
worked.
11. Section 115 of the Immigration and Asylum Act
1999 makes provision for access to means tested benefits to be
limited in relation to those who have no right to be in or work
in Great Britain. This takes effect by way of regulations which
are specific to each of the means tested benefits. There is currently
no equivalent provision which relates to non means tested benefits
or payments, or benefits based on National Insurance contributions,
on the premise that those with no entitlement to work will not
have been working. However, the Government is aware that those
with no entitlement to work are able to access such benefits or
payments as there is no legislative bar on them doing so. This
proposal seeks to address this lacuna.
Period of entitlement to contributory employment
and support allowance
12. Clause 51 amends the Welfare Reform Act 2007
to restrict entitlement to ESA(C) to 365 days for those in the
work-related activity group. The clause details how the 365 days
are calculated with reference to the period over which entitlement
has arisen. It further makes provision for claimants to re-qualify
for further periods of entitlement if they meet the conditions
of entitlement in the future. This reform does not apply to those
in the most disabled of the ESA claimant group; the support group.
Any claimant who loses entitlement to ESA(C) as a consequence
of this provision will be able to access income-related ESA, and
in due course, universal credit, if they meet the applicable means
tests.
13. The effect of the provision in question will
be to put ESA(C) on a similar footing to JSA(C), where entitlement
is limited to six months, and will be consistent with the approach
taken to other contribution based benefits and statutory payments
administered by the Department for Work and Pensions, all of which
are time-limited.
14. The legislation will make provision for the calculation
of the year's limit and this will be applied to all claimants
(both new and existing), with the exception of those in the support
group whose needs are such that it is appropriate that the State
continue to provide support indefinitely. Claimants will be made
aware of the detail of the proposals at the earliest appropriate
time and will accordingly have time to adapt and prepare themselves
for the forthcoming change in position.
15. Further, the change supports the Government's
aim of engaging claimants in the process of recovery and return
to work, ensuring that those who need the support of the State
receive it, and those who need less support are helped to move
towards and prepare for a return to the workplace. Time limiting
ESA(C) will encourage claimants to make use of the back to work
support that is offered to them, so as to increase their chances
of finding appropriate work.
16. The measure is also justified given the significant
cost to the public purse of paying ESA(C). The practical effect
of the proposal to time limit will be limited to people who have
capital or income above a certain level, such that they will not
be able to access means tested benefits. At the expiry of entitlement
to ESA(C) claimants can continue to receive income-related ESA
if appropriate in their circumstances, providing that they also
satisfy the means test. This enables the Government to direct
public funds at those most in need of them.
Condition relating to youth
17. Clause 52 makes amendments to the Welfare Reform
Act 2007 in relation to ESA claimed on the grounds of youth ('ESA(Y)').
The existing provisions allow for a person under 20, or in certain
circumstances, 25, to be able to access ESA without meeting the
National Insurance conditions, or the means test, and allows them
to remain on the benefit indefinitely.
18. This clause provides for there to be no new claims
to ESA(Y) after the commencement of these provisions. Further,
existing awards for claimants in the work-related activity group
will be time limited by virtue of clause 51 which is dealt with
above. Existing claimants in the support group will continue to
be entitled to ESA(Y).
19. It is justifiable to treat young people the same
as older claimants. Young people will be able to access ESA(C)
on the basis of their own NI contributions if available, and if
not will be able to access income-related ESA should they meet
the means test. This ensures that the public purse continues to
support those with limited funds who are less able to help themselves.
Entitlement of lone parents
20. Income support is the main income-replacement
benefit for lone parents. Before November 2008, lone parents with
a youngest child up to the age of 16 could claim income support
as a lone parent. Since then, this threshold age has been reduced
first to 12, then to 10 and, on 25 October 2010, to 7.
21. The Government announced in the budget that income
support would no longer be available to lone parents with a child
of 5 or over.
22. Clause 57 will amend section 3(1) of the Welfare
Reform Act 2009 so that, when it is brought into force, any regulations
setting out the prescribed categories of person who are entitled
to income support must include lone parents with a child under
the age of 5. This will enable existing regulations to be amended
so that lone parents with a child of 5 or 6 are no longer entitled
to income support solely on grounds of being a lone parent.
23. Most lone parents are expected to claim JSA once
the threshold age for the end of entitlement to income support
reduces to 5 and will be required to meet JSA conditionality—which
means that they will be expected to be available for and actively
seeking employment, and otherwise comply with requirements imposed
on them in relation to their JSA award.
24. The Government considers that it is reasonable
to expect claimants to be available for and actively seeking work
once their child is in full-time education, in return for financial
support. Further, the change is expected to lead to greater employment
of lone parents which will have a positive effect on child poverty.
The change is proportionate to that aim. In particular, there
is a wide range of flexibilities and support available to lone
parents claiming JSA to help ensure that any requirements imposed
on them are not disproportionate and will take account of the
lone parent's role as the main carer for their child.
Personal independence payment
25. The Bill makes provision for the introduction
of a new benefit, to be known as personal independence payment
("PIP"). This benefit will in due course replace disability
living allowance. The new benefit is to be a non-taxable, non-contributory
benefit, designed to contribute towards the additional costs associated
with long-term disability and be focused on those with the highest
need.
26. It is intended to be a dynamic benefit, taking
account of changes in individual circumstances and the impact
of disabilities to a greater degree than is presently possible
within the disability living allowance structure. The benefit
will better reflect 21st century attitudes towards disability
and developments in equality legislation. It is justifiable for
this kind of support to be focused on those individuals who are
most affected by their impairment. The assessment process will
ensure that these individuals are identified in a fair, transparent,
consistent and evidence-based manner. Claimants will also be given
clear notice of the timetable for the introduction of PIP and
the eventual cessation of disability living allowance.
27. The changes are justifiable, in terms of supporting
those most affected by disability, and introducing a fairer, more
consistent and evidence-based assessment system to identify such
individuals.
Benefit cap
28. Clauses 93 and 94 allow for a cap on the total
amount of benefit received from the State (from central Government
and local authorities). There is a power to provide for exceptions
from such a cap. The intention is to use this power to exempt
households where a member of the household is working above a
certain level, has a disability and is entitled to disability
living allowance, PIP or constant attendance allowance, or is
a war widow or widower.
29. The reason for having a cap is to balance the
interests of benefit claimants with the interests of taxpayers.
The Government believes that the effect of the cap is proportionate,
taking into account: (1) the amount of the cap and the fact it
will be based on average household earnings; (2) the fact that
claimants will be notified of the cap and given time to adjust
their spending to accommodate their new levels of benefit; and
(3) the fact the cap will affect relatively few households and
that those affected will already have a substantial income from
benefits.
Recovery of benefit payments
30. The amendments to the Social Security Administration
Act 1992 made by clause 102 allow for the recovery of any amount
of universal credit, JSA and ESA that has been paid in excess
of entitlement and prescribe the methods by which those overpayments
may be recovered. The prescribed methods of recovery in each case
are by offsetting against, or deduction from, other benefits,
by court action or by deduction from earnings.
31. The Government considers that the strengthened
measures it is putting in place for recovery of excess payments
are justified and proportionate. In the present time of constrained
public finances it is essential to ensure recovery of overpaid
benefits in all appropriate circumstances. It is important also
to preserve the appearance of fairness so that the public can
see that limited public funds are being focused on those who have
a proper legal entitlement to those monies.
32. In order to identify proportionately and transparently
the cases where it is appropriate to pursue recovery in such cases,
the Department for Work and Pensions plans to issue a code of
practice which will set out the principles it will apply in deciding
when to seek recovery. This will enable proper account to be given
to the circumstances of the debtor, and the nature and reasons
for the overpayment.
(Q 5) I would be grateful if you could explain
whether the Government intends to make any draft Regulations available
during the debate on the Bill.
(Q 6) If not, please explain how Parliament will
have a full opportunity to consider the human rights impact of
these proposals without full information on the relevant safeguards
proposed. Specifically, please explain how Parliamentarians might
raise human rights concerns about particular measures, when the
draft Regulations will not be subject to line-by-line consideration.
33. Illustrative draft regulations will be provided
in relation to some parts of the Bill during the Lords Committee
stage. In all areas, we will provide notes on how regulation-making
powers will be used, as we did during the Commons stages of the
Bill.
34. Regulations subject to the affirmative procedure
must be laid before Parliament in draft, and are subject to debate
and approval by Parliament. Regulations subject to the negative
procedure may be prayed against by any Member of Parliament and
a debate must then be tabled. Parliamentarians will be able to
raise any human rights concerns during such debates.
(Q 7) I would be grateful if you could, as a courtesy,
provide me with a copy of the Government's response to the Seventeenth
Report of the Delegated Powers and Regulatory Reform Committee
as soon it is available.
35. The response is attached.
(Q 8) Please explain why the equality impact assessments
produced were not available in time for the introduction of the
Bill.
36. There is no formal requirement to publish equality
impact assessments for a particular stage in the legislative process.
They were published after introduction in order to ensure that
they were as up-to-date as possible in advance of the Commons
Committee stage, the first point of the parliamentary process
where a Bill is subject to detailed scrutiny.
(Q 9) Did the Government consult with the EHRC
during the preparation of the equality impact assessments accompanying
the Bill? If not, has the Government met with the EHRC to discuss
their concerns about the scope of the equality impact assessments?
37. Officials from the Department for Work and Pensions
met with the EHRC on 5th July 2011 to discuss various concerns
and questions relating to the Welfare Reform Bill equality impact
assessments.
38. The Welfare Reform Bill equality impact assessments
were based on the Department for Work and Pensions' equality impact
assessment tool which is designed to help to ensure that the needs
of people with protected characteristics are taken into account
when changing, developing or implementing a policy or service.
This tool has been discussed with EHRC and informed by EHRC guidance.
(Q 10) Please provide us with the Government's
response to the concerns raised by the EHRC that the equality
impact assessments prepared do not meet the public sector equality
duty in the Equality Act 2010.
39. There has been no formal written response to
concerns raised by the EHRC. However, the EHRC's concerns were
discussed at the meeting with officials on 5th July and the issues
discharged. Specific concerns that were raised are addressed in
questions 12 and 13 below.
(Q 11) In light of the number of policy factors
yet to be determined in the Bill (see above), is the Government
satisfied that these equality impact assessments provide a full
picture of the likely impact of the proposals in the Bill?
40. Yes. Equality impact assessments are part of
an ongoing, iterative process. The Department for Work and Pensions
will update the assessments with the equality related analysis
that informs the continuing development of the policies and how
they are implemented. Once these policies are implemented the
Department will continue to monitor their impact and review decisions
accordingly.
(Q 12) Has the Government conducted an assessment
of the likely cumulative impacts of the proposals in the Bill?
(Please provide the Government's response to the concern raised
during debates in the House of Commons that, without a cumulative
assessment of the impact of the policies in the Bill on people
who share protected characteristics (particularly women and disabled
people), Parliament will not necessarily have a full picture of
whether the Bill will operate in a discriminatory manner.)
41. The proposals in the Bill impact on a wide variety
of groups in different ways. A single overall cumulative equality
impact assessment has not been produced, for the reasons as set
out in paragraphs 3 to 5 of the impact assessment cover note
(http://www.dwp.gov.uk/docs/wr2011-ia-cover-note.pdf):
1)The scale of policy change provided for by the
Welfare Reform Bill is significant, and is planned to take place
over an extended period, beginning in 2011-12 with changes to
lone parent obligations, and ending in 2017-18 with the completion
of the transition to universal credit. Therefore the impacts build-up
over a substantial period of time, and at a different rate for
the various measures. To provide a single summary accurately taking
account of the different timings would be analytically complex
and extremely challenging. To simplify would risk providing a
set of misleading impacts.
2) Moreover the changes to social security benefits
and tax credits contained in the Bill take place in a wider context
of fiscal change. The impact assessments therefore do not account
for wider changes that would impact on households over the period,
for example, the aim to increase income tax personal allowances
to £10,000.
3) Collectively these factors substantially limit
the extent to which a cumulative impact assessment would provide
an accurate analysis of the impacts of the Bill as a whole. Moreover,
an amalgamated assessment is likely to obscure the impacts of
individual policies rather than aid the understanding of those
considering the Welfare Reform Bill in Parliament and the wider
public.
(Q 13) Please confirm whether the human rights
memoranda and/ or equality impact assessments will be produced
to accompany regulations made under the Bill, in particular with
regard to any regulations connected to eligibility for benefits,
conditionality and the imposition of sanctions and the operation
of hardship payments.
42. It is envisaged that further equality impact
assessments will be prepared during the implementation of the
Welfare Reform Bill, including in relation to benefit eligibility,
conditionality, sanctions and hardship payments. For Lords Committee,
we will update equality impact assessments where there have been
significant policy announcements made since the original assessments
were published.
43. There is no requirement to produce a human rights
memorandum to accompany regulations. Where regulations are subject
to the affirmative resolution procedure, a statement on their
compatibility with the ECHR will be included in the Explanatory
Memorandum to the regulations.
(Q 14) I would be grateful if the Government could
outline the measures which it proposes to take to monitor the
impact of the proposals in the Bill after they are implemented,
including discriminatory impact on people and groups of people
with the characteristics protected by the Equality Act 2010.
44. The detailed evaluation plans for post-implementation
are still being developed, however the Department for Work and
Pensions is committed to monitoring the impacts of its policies
and we will use evidence from a number of sources on the experiences
and outcomes of the protected groups. Specifically (as set out
in the "monitoring and evaluation" sections of the equality
impact assessments—http://www.dwp.gov.uk/policy/welfare%2Dreform/legislation%2Dand%2Dkey%2Ddocuments/welfare%2Dreform%2Dbill%2D2011/impact%2Dassessments%2Dand%2Dequality/):
1)The Department will use administrative datasets
to monitor trends in the benefit caseloads for the protected groups
and in the level and distribution of benefit entitlements. The
administrative data will provide robust material for age and gender
although not, as a rule, for the other protected groups.
2) The Department will use survey data (for example
the Family Resources Survey and Labour Force Survey) to assess
trends in the incomes of the protected groups and in the employment
outcomes.
3) The Department will use qualitative research and
feedback from stakeholder groups to assess whether there are unintended
consequences for the protected groups, and whether the policy
is resulting in adverse consequences for particular groups.
4) The Department will utilise feedback from Departmental
employee networks and internal management information. For example
we will monitor the level of appeals and complaints in order to
assess the broader impact of the policy.
5) The Department will draw on broader Departmental
research where appropriate, as well as any research commissioned
specifically as part of the evaluation of the measure.
(Q 15) Please confirm that conditionality either
in a claimant commitment or in a work-related or work preparation
requirement will not extend to a requirement on claimants to undertake
drugs testing or treatment (similar to the provisions envisaged
in section 11, Welfare Reform Act 2009.
45. The Government can confirm that there are no
current plans to use these mechanisms to mandate claimants to
undertake drug testing or treatment. Section 11 of the Welfare
Reform Act 2009 is being repealed by the Bill (see clause 59).
We will keep under review alternative approaches which might encourage
claimants to address addiction. Any proposals that are taken forward
will be compatible with the ECHR, in particular with Article 8.
(Q 16) In relation to each of the clauses in the
Bill which provide for the Secretary of State to contract out
certain of his functions in relation to welfare reform, please
explain whether the Government considers the authorised person
will be performing a "public function" for the purposes
of section 6 of the Human Rights Act 1998?
(Q 17) If not, please explain against which public
body an individual who wished to rely on the Human Rights Act
1998 could claim.
46. Clause 29 allows for the Secretary of State to
contract out his functions under clauses 13 to 25 (clause 49 inserts
new section 6L into the Jobseekers Act 1995 and clause 56 inserts
new section 11K into the Welfare Reform Act 2007. These new sections
mirror clause 29, which relates to universal credit, and apply
to JSA and ESA, respectively, as contributory benefits once universal
credit is introduced). Clauses 13 to 25 relate to the claimant
commitment (that claimants must accept as a condition of entitlement
to universal credit under clause 4(1)(e)), and the work-related
requirements that may be imposed on claimants as part of the conditionality
regime. Clause 29(4) makes it clear that anything done, or not
done, by the contractor in carrying out the Secretary of State's
functions is to be treated as done, or not done, by the Secretary
of State, save for anything that concerns the actual contract
between the Secretary of State and the contractor to carry out
the function or in relation to criminal proceedings against the
contractor.
47. The Government's view is that the functions under
clauses 13-25 are of a public nature. This applies whether they
are exercised by the Secretary of State or by another person authorised
under clause 29. In a case where it is alleged that a contractor
has acted contrary to the Human Rights Act, a person may bring
a claim against the Secretary of State.
(Q 18) I would be grateful if you could provide
a fuller explanation of the information provided by the Government
on the likely compliance with Article 3 ECHR of the proposals
in the Bill, including fuller information on the safeguards outlined
in the Explanatory notes (see Explanatory Notes para 705). In
particular:
a. please explain the Government's view that the
imposition of a sanction leading to a reduction in benefit will
not be "treatment" for the purposes of Article 3 ECHR;
48. The Department considers that the reduction of
a universal credit award where a claimant has failed to comply
with mandatory requirements does not amount to "treatment".
In the case of Secretary of State for the Home Department v
Limbuela, Tesema and Adam [2004] EWCA Civ540 the House of
Lords stressed that the Article does not oblige a State to provide
any minimum standard of social support for those in need: it does
not require the State to provide a home or a minimum level of
financial assistance to all within its care.
49. The conditions which were recognised in Limbuela
as capable of giving rise to 'treatment' do not arise in the context
of benefit sanctions. A sanction will only apply where: (1) claimants
have clearly had explained and set out for them the reasonable
requirements that they must meet, and that underpin their entitlement
to receive benefit; (2) the consequences of failing to meet the
requirements are made absolutely clear to claimants; (3) there
is no legal restriction on claimants' ability to seek work and
therefore support themselves; (4) a sanction is as a result of
a claimant's own voluntary actions and only imposed where a claimant
has no good reason for failing to comply with a requirement.
b. please provide further information on how the
proposed hardship regime will operate;
50. We are currently reviewing the system of hardship
payments, including options to ensure that any hardship regime
does not undermine the deterrent effect of sanctions.
c. please explain what "other means of support
will be available where necessary to ensure compliance with Article
3";
51. The explanatory notes to the Bill state: "In
relation to the proposal to introduce a condition of entitlement
to work for certain benefits [clauses 60-62], other means of support
will be available where necessary to ensure compliance with Article
3". Support may be available under section 95 of the
Immigration and Asylum Act 1999 if the person makes a claim for
asylum and would otherwise be destitute, and also under section
4 of the 1999 Act for failed asylum seekers who are destitute
and face recognised barriers to return to their home country.
Alternatively, if a claim for asylum has not been made then limited
support may be available from Local Authorities, by virtue of
section 21 of the National Assistance Act 1948 or section 17 of
the Children Act 1989.
d. please explain how the Government's understanding
of these measures and the power to make payments on account has
informed the Government's understanding of the likely compatibility
of the operation of these measures with Article 3 ECHR. (We understand
that the measures are intended to replace discretionary social
fund payments are not yet settled).
52. The Government does not consider that powers
to make payments on account will be directly relevant to claimants
who are subject to a sanction or to those who are not entitled
to benefits because they do not have an entitlement to work in
the UK.
53. Payments on account are currently made by virtue
of regulations made under powers in section 5(1)(r) of the Social
Security Administration Act 1992. They are made on a discretionary
basis in cases where a claim for benefit cannot be made or determined
immediately; where a claim has been made and it is impracticable
for the claim to be determined immediately; or where an award
has been made but it cannot be paid immediately.
54. Clause 98 of the Bill substitutes a new section
5(1)(r) into the Social Security Administration Act. The substituted
section 5(1)(r) provides expanded powers to make payments on account.
The intention is to use these powers to provide for advances of
benefit in two ways: (1) short term advances which will replace
both interim payments made currently (see paragraph 53 above)
and crisis loans for benefit alignment purposes; and (2) budgeting
advances which will replace budgeting loans for universal credit
claimants. Budgeting loans and crisis loans are part of the discretionary
social fund, and will cease to exist once section 138(1)(b) of
the Social Security Contributions and Benefits Act 1992 is repealed
in respect of such loans by clause 69(1) of the Bill.
55. Short term advances may be made where a claimant
is receiving benefit, but has difficulties with budgeting between
payments because of a change to their award amount, or where a
claimant's first pay day has not yet been reached. The purpose
of budgeting advances will be to help towards meeting expenses
that are difficult to budget for out of normal benefit income,
or for which the claimant has been unable to save, or to deal
with fluctuations in expenditure throughout the year.
(Q 19) In light of the relevance of the operation
of the hardship regimes proposed in the Bill for the impact of
the Bill in practice on the rights of individual claimants, I
would be grateful if the Government could provide us with further
information on the operation of the existing hardship regime which
operates in connection with sanctions associated with other benefits.
In particular, I would be grateful if you could provide us with
annual statistics on the number of applications made for support
under the hardship regime (and the overall number of case where
sanctions have been imposed); and how many of those applications
have been successful.
56. Under current income-based JSA rules (set out
in the Jobseekers Regulations 1996, Part IX), claimants can receive
hardship payments (effectively a reduced payment of income-based
JSA) if they are subject to a sanction for failing to meet labour
market related conditions, and they meet certain criteria (e.g.
that they would suffer hardship if payments were not made).
57. Certain claimants, often referred to as "vulnerable"
can receive hardship payments from the date that the sanction
applies, but all other claimants can only receive hardship payments
from the 15th day of the sanction.
58. Currently, single claimants who are sanctioned
are not paid any JSA (their personal amount plus any premiums,
in combination; this is known as their applicable amount). Hardship
payments are a claimant's applicable amount minus 40% of their
personal amount (or 20% in cases where a claimant, or a member
of their family, is pregnant or seriously ill).
59. In a joint JSA claim, when one member is sanctioned,
payment of the JSA award is reduced to an amount equivalent to
a single person's personal amount plus any premiums. If eligible
for hardship the joint claim can receive full rate of benefit
minus 40/20% of the applicable single person's personal amount.
60. The same provisions apply for those on JSA who
are sanctioned as a result of benefit fraud, except in the case
of a joint claim. In a joint claim case, where one of the joint
claimants is not involved in the fraud and is not subject to a
sanction for breaching conditionality requirements, JSA remains
payable but only to that person and at a single person rate. Alternatively
if the couple is in hardship, joint-claim JSA hardship payments
may be paid. Where both of the joint claimants were involved in
the fraud or one committed benefit fraud and the other breached
JSA conditionality requirements, if the couple is in hardship,
joint claim JSA hardship payments may be paid.
61. Where a person receiving an income-related benefit
other than JSA is sanctioned as a result of benefit fraud, the
existing system provides for benefit to remain in payment but
reduced by an amount equivalent to 20% or 40% of the single person's
applicable amount, depending on the person's circumstances.
62. There are no publicly available statistics on
the number of applications for hardship support.
(g) We would be grateful if you would like to
add anything to the Government's earlier responses to concerns
raised during the House of Commons debates (or by NGOs and others)
about the potential for the operation of the Universal Credit
to have a discriminatory impact on people or groups with protected
characteristics (including women and disabled people).
63. The equality impact assessments for universal
credit, the household benefit cap and other measures in the Bill
looked at the potential for adverse impacts on individuals with
protected characteristics. The Government will take account of
additional points that have been raised as equality impact assessments
are updated. However, the Government believes that the changes
it is proposing are compatible with its human rights related obligations.
64. The combination of higher disregards and a lower
taper in universal credit should provide families with more flexibility
to balance work and caring responsibilities. universal credit
will also provide greater stability of income and consistency
of support, and so will significantly reduce the risks associated
with moving into work. These changes will be of benefit to both
women and men.
65. Universal credit will significantly change the
pattern of entitlements to benefit, with women and families with
children more likely to see increases in their benefit income
than single males. This will particularly benefit the poorest
households, who will receive the vast majority of the gains from
universal credit. A package of transitional protection will ensure
that there will be no cash losers as a direct result of the move
to universal credit, where circumstances remain the same.
66. Under universal credit, work-focussed support
will be tailored to the needs of the individual to help them find
suitable work and ensure that they are not excluded from the labour
market. As a result of our current reforms, we are offering
employment support to more lone parents, who are predominately
female, and aim to promote more equality of opportunity between
men and women in accessing labour market opportunities and helping
with a move back into the labour market. Helping lone parents
move into work means that they are able to enjoy the wider advantages
that come from working that are experienced by the rest of the
working population. This could also help them and their families
to move out of poverty.
67. Disabled people should also gain as a result
of improved work incentives and smoother transitions into work.
For example, the single taper and higher disregards for households
with a disabled adult should support disabled people to work a
few hours (especially those with fluctuating capacity to work,
for example, because of mental health problems).
(h) We would be grateful if you would like to
add anything to the Government's earlier responses to concerns
raised during the House of Commons debates (or by NGOs and others)
about the potential for the operation of the PIP to have an adverse
impact on disabled people. In particular, could you set out the
Government's response to criticism that certain aspects of PIP
could have a retrogressive impact on the rights of disabled people
which could be inconsistent with the UK's obligations under the
UN Convention on the Rights of Persons with Disabilities.
68. PIP is intended to target resources on the people
that need it most, taking into account the whole range of services
available to, and balancing the various needs of, disabled people.
In doing so, the Government believes that the changes are compliant
with the UK's obligations under the Convention.
69. The new assessment for PIP, which the Government
is currently developing, is intended to be fairer than that of
disability living allowance, taking more holistic account of the
impact of disability. It will do this by considering a range of
activities and not basing entitlement on meeting single criteria,
as in disability living allowance. In doing so the Government
wants to ensure that it considers all impairment types equally,
unlike disability living allowance which often fails to take full
account of the impact of mental, cognitive and sensory impairments.
For example, the assessment will consider an individual's ability
to communicate, ensuring we better assess the effect of impairments
of hearing, speech and language comprehension. Meanwhile, entitlement
to the mobility component will be based not only on physical ability
to get around but will also consider an individual's ability to
plan and follow a journey.
(Q 20) I would be grateful if you would confirm
that the imposition of any sanction under the Bill will be subject
to appeal. If so, please explain why clauses 126, 27, 46, 49 and
54 need not be amended to provide that the relevant Regulations
should provide for an appeal to the first tier tribunal in connection
with the imposition of any sanction associated with Universal
Credit, Employment Support Allowance or Jobseeker's Allowance.
70. Claimants will have a right of appeal to the
First-tier Tribunal against a decision to reduce their benefit
award amount in accordance with a sanction.
71. Clauses 26, 27, 46 and 54 (which include provision
about the imposition of sanctions under JSA, universal credit
and JSA and ESA as contributory benefits following the introduction
of universal credit), do not need to include provision about appeal
rights because sections 8 to 12 of Social Security Act 1998 set
out the appeals structure, and already apply to JSA and ESA, and
will, by virtue of amendments made in the Bill, also apply to
universal credit.
72. Section 8 of the Social Security Act 1998 makes
general provision for decisions by the Secretary of State on a
claim. Paragraph (1)(a) provides that it shall be for the Secretary
of State to decide any claim for a relevant benefit (which includes
JSA and ESA). Paragraph 45 of Schedule 2 to the Bill amends section
8 of the Social Security Act 1998 to add universal credit to the
list of relevant benefits. Sections 9 and 10 allow for the revision
and supercession of decisions made under section 8, in accordance
with regulations. Section 12 provides for appeals against decisions
made by the Secretary of State under sections 8 and 10. Section
12(1)(a) of the Social Security Act 1998 provides that any decision
of the Secretary of State made under section 8 or 10 which is
made on a claim for, or an award of a relevant benefit, and does
not fall within Schedule 2 (decisions against which no appeal
lies) is appealable to the First-tier Tribunal. A decision to
reduce an award in accordance with the provisions contained in
clauses 26, 27, 46 and 54 will be a supercession decision made
under section 10 on an award of a relevant benefit, and will therefore
be appealable.
(Q 21) I would be grateful if you could provide
us with annual statistics on the number of sanctions decisions
subject to appeal, including the number of appeals which are successful
and the number of appeals which are rejected.
73. In 2010-11 there were 594,500 conditionality-related
JSA sanctions and 164,700 JSA disallowances (where claimants had
failed to meet the conditions of entitlement of actively seeking
and being available for work; had failed to attend an interview
or had failed to agree their jobseeker's agreement), and 15,780
appeals against such JSA sanction and disallowance decisions.
74. The Secretary of State's original decision was
upheld in approximately 87% of cases. It is important to note
that when a decision is overturned, it does not necessarily mean
that the original decision was incorrect based on the available
evidence at the time it was made. There are many factors that
can affect the outcome of an appeal, for example, a common reason
for a decision being overturned is additional evidence being
provided that was not available to the original decision maker.
75. If a claimant on income support because they
are a lone parent, or on ESA and in the work-related activity
group fails to attend or participate in a mandatory work-focused
interview without good cause, a sanction is applied. In 2010-11,
there were 9,280 sanctions applied in relation to ESA claimants,
and 76,400 sanctions applied to lone parents on income support.
Data on appeals against ESA and income support sanctions and data
on the number of sanctions applied to income support claimants
outside the lone parent regime is not publicly available.
(Q 22) Please provide a fuller explanation of
the Government's view that the provisions in clause 100 which
reinstate the power of the Secretary of State in connection with
the supercession of tribunal decisions is compatible with Article
6 ECHR.
76. The effect of clause 100 is to re-instate references
that existed before 2008 to ensure that the legislation concerning
supercessions is consistent. Currently, the legislation makes
provision for a decision maker to supercede decisions of the First-tier
Tribunal or the Upper Tribunal, but (as the result of a drafting
error in the Transfer of Tribunal Functions Order 2008 made under
the Tribunals, Courts and Enforcement Act 2007) makes no reference
to decisions made by the appeal bodies that were abolished in
2008.
77. Taking social security cases as the example,
a "superseding" decision made under section 10 of the
Social Security Act 1998 (decisions superseding earlier decisions)
would itself carry appeal rights in accordance with the provisions
of section 12 of that Act (appeal to the First-tier Tribunal).
This, therefore, ensures that the powers in section 10, including
as they would be amended by clause 100, can be exercised compatibly
with ECHR Article 6.
78. Similar provision for appeals is made in relation
to housing benefit and council tax supercession decisions (see
paragraph 6 of Schedule 7 to the Child Support, Pensions and Social
Security Act 2000 and in the case of child support (see section
20 of Child Support Act 1991).
(Q 23) Please provide a more detailed explanation
of the Government's view that the proposed information sharing
gateways in clauses 123-128[68]
of the Bill will operate in a manner which is compatible
with Article 8 ECHR. In particular, please provide details of
any relevant safeguards which will be in place to ensure that
the information shared between public authorities and private
contractors will be handled in a manner which is compatible with
the Data Protection Act 1998 and Article 8 ECHR.
Clause 124
79. The measures set out in Clause 124 will consolidate
and simplify a number of existing gateways between HMRC and the
Department for Work and Pensions. Relevant repeals are set out
in Part 13 of Schedule 14 to the Bill. The criminal offence of
unauthorised disclosure of information in section 123 of the Social
Security Administration Act will continue to apply.
80. To strengthen existing protections for shared
information, the new gateway in clause 124 will be permissive
and will replace certain mandatory gateways. As a result, both
Departments will have to assess the risk and necessity of any
requests to share information and any onward disclosure of shared
information will have to be authorised by the originating Department.
81. Strict data sharing protocols and access controls
are already in place in relation to data-sharing between the Departments
under existing provisions. These have been drawn up having regard
to the need to comply with data protection requirements and human
rights law. Work is already in hand to develop these, and where
necessary strengthen them, so as to operate effectively in relation
to universal credit and the new gateway. The relevant privacy
impact assessments will also be updated, where necessary.
82. Both Departments routinely share information
with third parties who provide services to them under contract.
The provisions contained in clause 124 will extend to those service
providers but the permission of the originating Department must
first be obtained to any information-sharing with them. Contracts
will be put in place to state that service providers are acting
on behalf of Department for Work and Pensions and/or the Commissioners
of HMRC. As such the service providers are effectively carrying
out Departmental functions and are required to take on the same
responsibilities of those Departments. This, therefore, means
that the statutory duty of confidentiality and the criminal sanction
also attaches to any information that is shared with them. In
order to achieve the assurance that both Departments require under
this gateway (clause 124) the contracts will also contain full
details of how any data must be stored and disposed of and other
specific requirements with which the service provider must comply
in order to secure compliance with both the Data Protection Act
1998 and the ECHR.
83. To provide practical assurance that information
will be safeguarded, a memorandum of understanding will be drawn
up and signed by all relevant parties. This will detail: (1) the
information to be shared; (2) how it may be used; (3) how it will
be stored; (4) retention periods and secure disposal or decommissioning
procedure, and provide for controlled access to the data. The
memorandum of understanding will also state whether any onward
disclosure is to be permitted and, if so, for what purpose and
with whom, and the security arrangements and standards required
for the process. Service providers will be expected to have similar
clauses in contracts with any private contractors who provide
a service to them or exercise functions on their behalf.
84. Memoranda of understanding and contracts are
reviewed periodically in collaboration with service providers
and the Department retains the right to test all aspects of data
security and handling carried out on the part of service providers
during the course of the contract. This may include provision
of assurance certificates, providing up-to-date documentation
at regular periods to show that standards are being maintained
and personal inspection or audit of the data security arrangements.
Clauses 125 to 128
85. The information gateways provided for in clauses
125 and 126 are required in order to make it easier for individuals
to receive certain welfare services or help with housing costs.
Currently individuals have to provide detailed financial information
to different parts of government each time they apply for a benefit
or service. Normally such information can only be shared where
the person has consented. Having a legal gateway allowing such
data to be reused for a number of different beneficial purposes
will ensure the individual can access certain benefits and services
more easily. The majority of individuals affected will be people
who are disabled, elderly or vulnerable and they often find the
application process for benefits and services more difficult than
other claimants.
86. The measures in clause 127 provide that any person
who misuses data that is shared under clause 126 will be guilty
of an offence, and the measures in clause 128 are supplementary
provisions that apply to clauses 125 and 126.
87. The Department for Work and Pensions already
has an established process in relation to setting up new data
sharing arrangements. A detailed implementation plan will be designed
and agreed with local authorities before any data sharing under
these provisions takes place. We will test these where appropriate,
in order to identify the precise amount of data that needs to
be shared, and the method by which it will be transferred. Detailed
guidance will be provided to staff who will be implementing the
new provisions. This will include advice relating to safeguards,
retention and storage, onward disclosure etc. A privacy impact
assessment will be produced, setting out the proposed arrangements.
The requirements of the Data Protection Act 1998 will be adhered
to, for example, a privacy notice will be produced to ensure that
when individuals supply their data in the first instance they
will be advised that if they subsequently apply for one of the
other prescribed benefits or services their data may be re-used
for that new purpose.
88. Information is already routinely shared between
the Department for Work and Pensions and local authorities in
relation to the administration of housing and council tax benefit.
A number of measures are in place in order to ensure data is safeguarded.
These include a memorandum of understanding which all local authorities
must sign up to; access to data being given only to accredited
staff; regular checks to make sure staff only access data in accordance
with the memorandum of understanding; and secure electronic networks
for the transfer of data. The Department for Work and Pensions
intends to apply such measures to any new data sharing arrangements
under the provisions in clauses 125-126.
89. Local authorities are expected to ensure that
they have similar protections in contracts with any private contractors
that are providing service to them or exercising functions on
their behalf. In any supply or use of information under any of
these provisions, a public authority has to act compatibly with
Convention rights and in accordance with the requirements of the
Data Protection Act 1998, in particular, compliance with the first
and third Data Protection Principles.
90. There is at present no policy intent for the
Department for Work and Pensions to disclose data to private contractors
under clauses 125 and 126. However, should a situation arise in
the future where this is required, data will only be supplied
where there is a contract in place setting out the minimum security
requirement that the contractor must adhere to with respect to
data provided by the Department. For example, this will include
ensuring that their staff receive training on data protection
issues, are made aware of the criminal offence provisions which
relate to the data sharing and to ensure that there is restricted
access to data supplied by the Department.
(Q 24) Has the Government consulted with the Information
Commissioner about the scope of the information sharing gateways
proposed in clauses 123-128 of the Bill?
91. The Department for Work and Pensions consults
with the Information Commissioner on data protection matters and,
in establishing protocols to protect personal information, has
had regard to all relevant guidance from him.
92. The Department for Work and Pensions holds regular
meetings with the Information Commissioner's Office to discuss
data sharing issues in relation to the use of social security
information. These meetings provide an opportunity to review our
security measures on a regular basis. In addition, the Information
Commissioner's Office was invited to comment specifically on these
measures and clauses, as part of a consultation exercise earlier
in the year. They did respond and their comments have been fully
taken into account. Further discussions will take place with the
Information Commissioner's Office once the Department for Work
and Pensions has developed more detailed plans for implementing
the new measures.
(Q 25) We would be grateful if the Government
could provide an explanation of how it considers the Social Mobility
and Child Poverty Commission will help meet the UK's obligations
under the International Covenant on Economic and Social Rights
and the UN Convention on the Rights of the Child to secure an
adequate standard of living for children and their families.
93. The new Social Mobility and Child Poverty Commission
will have an extended remit which will include social mobility
as well as child poverty. The Commission will produce independent
annual reports assessing progress towards reducing child poverty
and increasing social mobility, and towards meeting the child
poverty targets and implementing the UK's child poverty strategies.
The Commission will provide independent expert scrutiny of the
strategy which the Government has developed to meet the 2020 target
set out in the Child Poverty Act 2010. This will improve the accountability
of Government in relation to eradicating child poverty, thus helping
to meet UK obligations under the International Covenant on Economic
and Social Rights, and the UN Convention on Rights of the Child.
(Q 26) Please also explain how the other changes
in the Bill to the Child Poverty Act 2010—including the
removal of the duty on the Secretary of State to report to Parliament—will
help meet the UK's obligations under the International Covenant
on Economic and Social Rights and the UN Convention on the Rights
of the Child to secure an adequate standard of living for children
and their families.
94. The duty to report is now an obligation of the
Commission, rather than the relevant Secretary of State, to provide
independent expert scrutiny of the child poverty strategy. The
three key changes to the Child Poverty Act 2010 are:
1) The expansion of the remit of the Commission,
so that it can consider social mobility and the root causes of
poverty;
2) Moving the requirement to produce an annual progress
report from the Secretary of State to the Commission, therefore
improving ministerial accountability; and
3) The removal of the Commission's advisory functions,
therefore improving ministerial accountability.
95. These three changes will ensure there is a better
framework in place for driving action towards the 2020 targets,
and will create a more effective Commission that can assist the
Government in its goal of reducing child poverty.
(Q 27) I would be grateful if you could provide
us with an update on the Government's position on the UK reservation
to Article 13 UNCRPD. In particular:
b. please provide further information on the progress
of the design and piloting of the proposed system of review;
c. if "design work" is due to be completed
in 2011, please provide a target timetable for legislating to
introduce a review mechanism which is compatible with Article
13 CRPD;
d. in the light of this timetable, is there any
prospect that these reforms may be introduced as late amendments
to the Welfare Reform Bill?
e. if not, can the Government explain why the
timescale for design of the relevant procedures have been so lengthy
as to preclude their introduction in this Welfare Reform Bill?
f. After the introduction of legislation on this
issue, does the Government intend to remove the UK reservation
to Article 13 UNCRPD? If not, please provide an explanation.
96. The UK Government ratified the UN Convention
on the Rights of Persons with Disabilities on 8 June 2009 and
the Convention came into effect on 8 July 2009.
97. On ratification the UK entered a reservation
in relation to paragraph 4 of Article 12 (Equal Recognition Before
the Law) (not Article 13 as referred to in the Committee's letter).
98. Article 12.4 reads as follows:
States Parties shall ensure that all measures that
relate to the exercise of legal capacity provide for appropriate
and effective safeguards to prevent abuse in accordance with international
human rights law. Such safeguards shall ensure that measures relating
to the exercise of legal capacity respect the rights, will and
preferences of the person, are free of conflict of interest and
undue influence, are proportional and tailored to the person's
circumstances, apply for the shortest time possible and are subject
to regular review by a competent, independent and impartial authority
or judicial body. The safeguards shall be proportional to the
degree to which such measures affect the person's rights and interests.
99. The UK's reservation to this provision states:
The United Kingdom's arrangements, whereby the Secretary
of State may appoint a person to exercise rights in relation to
social security claims and payments on behalf of an individual
who is for the time being unable to act, are not at present subject
to the safeguard of regular review, as required by Article 12.4
of the Convention and the UK reserves the right to apply those
arrangements. The UK is therefore working towards a proportionate
system of review.
100. A reservation was necessary because no review
process was in place in relation to benefit appointeeships under
regulation 33 of the Social Security (Claims and Payments) Regulations
1987 (SI 1987/1968).
101. Work to design and test a suitable review process
has been taken forward by the Pension and Disability Carers Service.
There was initial consultation with representatives of Equality
2025 (a non-departmental public body whose members have a disability,
and which offers strategic advice to Ministers and senior Government
officials on issues affecting disabled people) and a small stakeholder
group which included representatives from Age UK and local government
social care, and with members of the PDCS Advisory Forum (which
comprises 22 organisations representing a broad range of claimants
including pensioners, disabled claimants of all ages, and carers).
102. An equality impact assessment for the proposed
review process was published in September 2011 and can be viewed
at:
http://www.dwp.gov.uk/publications/impact%2Dassessments/equality%2Dimpact%2Dassessments/2011/
103. A business test was undertaken from October
2010 to January 2011. This was designed to test the effectiveness
and efficiency of different communication methods as well as providing
a review of the existing appointee arrangements in the individual
cases selected. The results showed that the most appropriate review
method was postal.
104. The postal review method involves sending a
form to the appointee which first reminds them of their responsibilities
as an appointee e.g. that they must always act in the best interests
of the benefit customer, must tell the Department for Work and
Pensions if the claimant becomes capable of managing their own
affairs, report any changes in the claimant's circumstances, pay
care home fees, not take a fee from the benefit for acting as
an appointee; it then asks specific questions about the claimant's
capabilities; finally, it asks the appointee to sign a declaration
that he has met and will continue to meet his responsibilities.
A failure to reply or to answer in a way which raises concerns
may result in the appointment being revoked.
105. The postal method reflects the requirement to
introduce a proportionate system of review. In developing the
review system we have been mindful of balancing the need for the
system to be as robust as possible but without being too onerous
for the customer or the Department.
106. For claimants, we want a system that offers
adequate safeguards but avoids being overly intrusive. The Department
is keen to avoid damaging the implicit covenant of trust that
is established by the Secretary of State's approval of an appointeeship.
This is particularly important where it is a parent/child relationship.
A heavy-handed approach could actually result in existing appointees
choosing to relinquish their appointments, or could deter new
appointees from coming forward.
107. The proportionate approach ensures that the
system is deliverable. There are currently around 725,000 appointees—and
this number is growing—and so this necessitates a light-touch
approach, with appropriate follow up activity as required.
108. The Department recognise that within these constraints
it cannot develop a system that will eliminate all potential for
financial abuse. The approach has therefore been to ensure that
the role and responsibility of appointees is made as clear as
it could be; and that the new review system acts as a deterrent
to them acting otherwise by letting them know that at some point
in time we would review that role.
109. The Department for Work and Pensions plans to
begin to introduce the review process from this autumn. However,
the review process is subject to a final strategic confirmatory
decision by the Department. This decision will not be made until
November and we will write to the Committee again at that stage
to confirm the latest situation as regards introduction of the
new process.
110. The new review process does not require legislation
because regulation 33(2)(a) of the Claims and Payments Regulations
(SI 1987/1968) already contains an unlimited discretion for the
Secretary of State to revoke a person's appointment as an appointee.
No changes to regulations are required, still less any new provision
in the Welfare Reform Bill.
111. The Government is satisfied that what is being
put in place meets the requirements of Article 12.4 and accordingly
will remove the reservation once the new review process is fully
operational.
26 September 2011
67 References to clauses in the Welfare Reform Bill
are to version HL Bill 75, as brought from the Commons. We note
that references to the Bill in the Committee's letter are to the
earlier version, Bill 197. Back
68
Clauses 123 to 128in the version of the Bill as amended in Public
Bill Committee (Bill 197), are now numbered as clauses 124-129
in the House of Lords version (HL Bill 75). Back
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