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Baroness Hollis of Heigham: I thank the Minister for giving way. I am sure he is at one with us in wanting to prevent what I think the noble Lord, Lord Swinfen, referred to as the "two stools" problem. However, I believe the noble Lord has misrepresented where the problem lies. It is not that someone will turn up and be told by the employment officers, "You're disabled, go away"; but that a person who has so far regarded himself, or defined himself, as disabled because he has been receiving invalidity benefit but has failed to qualify for incapacity benefit nevertheless considers himself to be partially disabled and therefore has an appropriate right to restrict various activities that nonetheless the employment officer thinks he ought to engage in. It may be bus transport; it may be travel distance away from home; it may be the hours he would have to work; it may be whether he has a companion; or it may be a host of things which are part of his definition of being partially disabled.

I fear that it is particularly when you are dealing with mental health problems that difficulties arise. It is much easier when there are clear physiological or orthopaedic

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disabilities which are easily perceived and understood across the table. It is when someone has failed the incapacity test on grounds of perhaps mild learning difficulty or moderate mental health disability and then goes on to impose availability for work restrictions which an unqualified employment officer thinks are unreasonable that the problem will occur. What will the Minister do to ensure that such a problem is sympathetically resolved?

Lord Mackay of Ardbrecknish: I like to think that I tried to address that point in the first part of my contribution. I apologise for going over it again because I might have been doing it in general terms, but obviously it would apply to someone who had failed the IB test but who had some degree of incapacity and who then came to JSA. I explained that we are carrying forward current provisions on unemployment benefit and income support which allow people with a mental or physical condition to place restrictions on the nature, the hours, the rate of remuneration, the locality or other conditions of employment which he is prepared to accept and where those restrictions are reasonable in view of his condition. As far as actively seeking employment is concerned—

Baroness Hollis of Heigham: May I intervene again? Would that be "reasonable" in view of his condition as certified by whom?

Lord Mackay of Ardbrecknish: That has to be a matter for the official in the Employment Service, who will have in front of him—my memory in fact suggests that it may be an automatic transfer, but certainly there would be available a document that would indicate the degree of incapacity the doctors had found in the IB test when they examined the person. Therefore the officers in the Employment Service will have the information in front of them from those doctors in addition to what the person tells them himself.

Lord Rix: I thank the Minister for giving way. Just to clarify a further point, would a person with a learning disability be allowed to undertake the job interview for the jobseeker's agreement with an advocate being present? I am sure the Minister would agree that people with a learning disability can often be open to suggestions which can be made across the table. They might accept things which frankly were not really to their benefit.

Lord Mackay of Ardbrecknish: I believe that in those circumstances a person would be able to have somebody present to help. I shall check that, and if I am wrong I shall write to the noble Lord.

Baroness Hollis of Heigham: I thank the Minister again for giving way. This is Committee stage but it is something which is of major concern to us. I want to refer to the other group of claimants with which we are particularly concerned—that is, those with mild or moderate mental health problems. Under the medical test one needs 10 points to be eligible for incapacity benefit. Somebody who, for example, has a fear of going out alone would perhaps score two or three points and

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somebody who suffers from sudden panic or anxiety attacks may obtain two or three points. In other words, they would fail the incapacity benefit test. They then come to JSA and most jobs would require them to go out alone in order to go to work; most jobs would require them not to be vulnerable to sudden panic attacks.

It seems to me that the employment officer, merely having in front of him the information that such a person scored only five or six points on the mental health test, may reasonably regard him as being available for a much wider range of work than realistically that person can do given his or her mental health problem. What will happen in that situation? An unqualified employment officer may try to impose on somebody with a mild mental health problem a wider range of jobs than that person can reasonably apply for or hold down. If the claimant does not accept that as part of the jobseeker's agreement, the entitlement to benefit will be lost until or after an appeal has been made and, it is to be hoped, upheld. Can the Minister clarify that situation for us?

Lord Mackay of Ardbrecknish: I am being asked quite detailed questions. I can confirm to the noble Lord, Lord Rix, that my view on that matter was the correct one. The noble Baroness, Lady Hollis, poses a more difficult question. When we get into the hypotheticals I need to look at the points system to see whether someone would fail the IB test because they are so badly mentally handicapped—-

Baroness Hollis of Heigham: It is a mental health problem.

Lord Mackay of Ardbrecknish: I apologise; their mental health problem is such that they are unable to go out of doors, and so forth. I should like to study that situation before giving a definitive reply across the Dispatch Box.

I recognise the pictures that are occasionally drawn of officials and various agencies of the Government as being little Hitlers. That is not a fair reflection of most of them. There are probably a few little Hitlers everywhere, if I may put it like that. However, most people try to do a good job—even in the Government, I am told—for the claimant in front of them.

In trying to help the noble Baroness without giving a yes or no answer to a hypothetical case, perhaps I can say that if somebody who is an IB leaver makes a claim for JSA, then, as I said a moment ago though I cannot remember in response to whom, the disallowance notice and the Benefits Agency medical service's note would be provided as long as the client gave written consent. I must add that slight caveat. But if the client gave consent, then we would make sure that the documents were available to the Employment Service. If an employment officer thinks that the case is beyond him, for example, then he will also have access to specialist advice from the placing and counselling teams called PACTs, and from the disability employment advisers.

I do not want to go too much further on the hypothetical question raised by the noble Baroness. Evidence will be available from the test; specialist

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advice will be available if an employment officer decides that the case is too difficult for him. If he wants to take more expert advice, then that advice will be available to him and he can take that advice before coming to a conclusion along the lines that I tried to indicate in the main body of my speech. We hope in the regulations that we can carry forward some of the things currently in unemployment benefit and income support and also take account of disability when deciding on "actively seeking". Ultimately, the adjudication officers and the system of review exist to make sure that nobody in the first instance makes a totally unjustified and unreasonable decision.

Baroness Hollis of Heigham: Perhaps the Minister will once again kindly give way. That explanation is helpful and I understand the Minister's difficulty regarding the detail of individual cases. But following on the theme addressed by the noble Earl, Lord Russell, earlier, can he assure us that anybody coming off incapacity benefit, invalidity benefit or disqualified from incapacity benefit but who has some points, though not sufficient to register them eligible for the benefit, will continue to receive their JSA? If an employment officer under the JSA agreement wishes to disqualify them and the claimant intends to appeal, can the Minister say that they will continue to receive the benefit until the appeal is heard?

We are talking about a particularly vulnerable group of people who were eligible for a benefit in the past but from which they are now disqualified because they have not met the IB or medical test. We are not talking about bad faith, scroungers or people abusing the system. These people have come into the JSA. An inexperienced employment officer may wish to disqualify them from the JSA on the grounds that he thinks that they are making too large a claim for the incapacity suffered by virtue of their minor mental health problem. They may wish to challenge that and go to appeal. Can the Minister assure us that in that case the most vulnerable of people will not lose their JSA benefit while the procedure is going through?

Baroness Williams of Crosby: Before the Minister replies, perhaps I can ask him to allow me to give an example, since he asked for examples which were not hypothetical. In my former constituency there was a large home for people who suffered from epilepsy. A number of them were able to obtain jobs. But epilepsy is precisely the kind of disease which occurs from time to time where somebody would not obtain adequate points to satisfy the full requirements to qualify for full disablement benefit, yet it is exactly the kind of condition where an employer may refuse to accept somebody who suffers from it. I plead that the Minister gives due consideration to the point raised by the noble Baroness, Lady Hollis. This group above all groups should not be disentitled to benefit—they have no other means of existence—until such time as there has been an adjudication on the morality and justice of their claim.

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