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

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

Baroness Hollis of Heigham: I also wish to support Amendment No. 5 and speak also to Amendments Nos. 48 and 78. This is the first time this evening that we have had the opportunity to discuss one of the major concerns expressed all round the House at Second Reading. I refer to the interface between what many of us believe to be a very unpleasant jobseeker's Bill and a very harsh new incapacity benefit. Both pieces of legislation share a lot of common features. They are both marked by an increased severity of test. If one passes the test a reduction in benefit follows. The Minister has never justified why both hurdles are required. If the problem is that people inappropriately claim benefit, to make the test more harsh, as both pieces of legislation will do, should be sufficient. There is then no need to cut benefit because people will have

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earned that benefit. But if the problem is that people claim the wrong benefit because either invalidity benefit or unemployment benefit is too generous, government can align the benefit without making the test more harsh. To go for both—increased severity of test and reduced adequacy of direct benefit—is doubly unpleasant. The worst effect of all of this will be felt by those people who lie at the interface between incapacity benefit and jobseeker's allowance.

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

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

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

In today's overstocked labour market is it realistic to expect an employer normally to employ somebody who is over 50 in preference to somebody who is under 40,

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

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

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

6.30 p.m.

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

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

It is also true to say that the DRO's and possibly the disability employment advisers were not and are perhaps not well versed in the problems that face them with people who have a learning disability—as indeed they are not well versed in the problems faced with the employment of actors. Therefore, I hope that the Pathway Employment Service can be referred to in some

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form or another, just as the disability employment advisers were referred to by the noble Lord, Lord Swinfen, and the noble Baroness, Lady Hollis. I believe that there will be need for a specialist agency in this particular field unless extensive training is given to the disability employment advisers.

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

Replying to the debate on Second Reading, when many noble Lords, including myself, raised those points, my noble friend Lord Inglewood said that:

    "all JSA claimants must be available for employment, but we recognise that some people's mental or physical condition may cause them difficulties in making themselves available for the full range of employment opportunities. Therefore, we will make specific provision in JSA that they should be able to restrict their availability to the hours of work that they are able to undertake within the limits of their condition".—[Official Report, 3/4/95; col. 54.]

I feel that it would be helpful to the Committee—certainly it would be helpful to me—if one of my noble friends were able to say a little more about what the Government mean by "specific provision". We have not so far heard a great deal about it. I recognise that many of the detailed points will have to be dealt with in regulations rather than by the Bill. But it would certainly guide me in considering my attitude to this amendment if, when the Minister comes to reply, he will fill out in a little more detail the intention behind the words "specific provision".

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