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Baroness Hollis of Heigham: We on this side of the Committee would very much like to support the three amendments, moved so smoothly and illuminatingly today. What all these issues have in common is the question of the interface between the new incapacity benefit now in place and the new proposed jobseeker's allowance. We believe that at the heart of the problem lies the fact that the Government got things badly wrong and we shall find out over the next year or two how badly wrong they were. They got it badly wrong on incapacity benefit because they insisted on an either/or test of incapacity for work. Anyone who has worked with partially disabled people knows that the problem is a continuum and not an either/or situation. That is why we shall have so many problems in future.

The Government have given no recognition to the many people who currently receive invalidity benefit but may well be disqualified, and the many more who would have got it but will not now do so but nonetheless will not fit tidily into the definition of "jobseeking". Our fears about that were confirmed when I came across a parliamentary Answer in the other place given on 27th March 1995. It was a referral of claims to the Benefits Agency's Medical Service for the quarter to September 1994. They are references to the Benefit Agency's medical services for sickness benefit, invalidity benefit and severe disablement allowance. This is on the more generous interpretation before the one we have now. The figures for September 1994 for those claims show that 4,000 out of a total of some 31,000 people who appealed in that quarter were capable of undertaking their normal occupation and 27,000 were regarded as capable of some alternative work—I repeat, 27,000 capable of alternative work. We are concerned about those 27,000 as opposed to the 4,000 who could resume their jobs.

The Minister insists that there can be no problem. We believe—we have no reason to think that this is not still the case—that being partially disabled, those people will be denied incapacity benefit. Being partially disabled they

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must then apply for the jobseeker's allowance, where their partial disability may so limit their capacity for work and ability to find work, if it exists, and then to keep it once they have it, that it will be deemed as being only partially available for work and partially able to qualify for any tests under "actively seeking work".

I know that the Minister insists that that will not be the case. But the Minister is speaking—if I may use a word of which he is very fond—of "hypotheticals". Why engage in hypothetical figures when we can read the book. The book includes the RADAR survey, which showed that even under the more generous, compassionate and lenient regime nearly one-third of the 77 cases which it followed up who were refused invalidity benefit because they were only partially disabled were also refused unemployment benefit because they were partially disabled. That is one third and, incidentally, not one of those who were refused invalidity benefit went on to find work—not one.

So what reassurances can the Minister give us that that will not continue to happen when it has happened in the past and is happening at the moment. Who are we talking about? We have tried to produce some profiles of possible claimants who may, we fear, fall between the two stools. Let me give a couple more examples.

Let us take the case of someone with physical incapacity. That is fairly easy to recognise and understand. Consider someone who comes within the invalidity benefit, the medical assessment for incapacity benefit—someone whose speech is so distorted that strangers have great difficulty in understanding it. He receives 10 points. That person also loses control of his bladder frequently, once a day or more —three points. Nonetheless, that person is refused incapacity benefit, even though he is probably suitable only for a job with little or no public human contact—perhaps a warehouseman or perhaps stacking shelves. But I forgot to mention that that person cannot use one arm in the sense that he cannot lift it to his head or carry any weight with it. For that, as it carries no points, he will still not get incapacity benefit; but it will certainly disqualify him from a job as a warehouseman or stacking shelves, which might be the only jobs which may fit that profile. Here, the employment officer may consider, justifiably, that the limitations on work are so severe that there is no reasonable chance of him finding work. He therefore disqualifies that person from JSA, at the same time denying him access to incapacity benefit.

Or let us take someone with a mental health problem—again a different example from the one that we gave during the last Committee stage. The person is unable to concentrate without sustained prompting, somewhat dangerous because he overlooks the risks associated with dangerous appliances and equipment, is unable to cope with changes in routine, is in distress because of severe mood fluctuations, prefers to be left alone for most of the day and gives up on tasks because of apathy or fatigue—all symptoms of quite severe depression. That person is virtually unemployable, yet with that profile he would get only six points of the necessary 10 points to render him eligible for incapacity benefit. I ask the Minister in the real world what job that person realistically would be available to do or to obtain or to hold. I do not ask about

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hypothetical jobs but real jobs for a person with that profile of severe depression, unable to complete a task, wanting to be left alone and unsafe to be left alone. What job can that person do? He is disqualified from one benefit and apparently unable to be employed in work and therefore possibly disqualified from another. We need to know of such cases.

Perhaps I may move away from the vocabulary of two stools. What we fear is that in that situation, if the employment officer recognises, understands and sympathises with such symptoms, the claimant might quite reasonably fail the availability for work test on the grounds that his symptoms so limit what he can do that he cannot reasonably gain work. But if the employment officer does not recognise, understand or respect those symptoms, especially if they are in the field of moderate mental ill-health and he thinks that that person should simply pull himself together, he may regard him as not actively seeking work. If he is perceptive and supportive, he will fail the ability for work test; if not, he may fail the actively seeking work test. On one or the other, he will go down the middle. Hence the importance of the amendments.

We believe that restrictions relevant to disability may so handicap a person's ability to hold a job that the prospect of obtaining that work may be so limited that any employment officer could, as the Bill currently stands, refuse that person JSA—those very people who have already been disqualified for incapacity benefit. We need the Minister's help on this. It is no use him trying to assure us again that there will be a seamless web. There is plenty of evidence to the contrary already. We fear that that evidence will grow when we have two more restrictive and demanding benefits seeking to interlock with each other. We wholeheartedly support the amendments.

8.30 p.m.

Earl Russell: I should like to add a brief word in support of two points. The first is restricted availability—allowing disabled people to put restrictions on their employment which do not provide a reasonable prospect of employment. We all know of disabled people who had no reasonable prospect of employment but who have nevertheless found it. Those are people who want to work, as so many of them do, but can work only in peculiarly favourable conditions. When they do work, they often work with great distinction to their benefit, to society's benefit and to the Treasury's benefit.

But were those people to be forced to accept conditions which were compatible with a reasonable prospect of employment, they would often be unable to meet them. If it were demanded that they should search for work on those terms, they would be unable to do it at all. If the Minister will accept Amendment No. 14 or Amendment No. 16 —I have no great preference—it would make it a lot easier to get disabled people into employment.

The other point concerns—I should like to ask the Minister seriously to take legal advice about Amendment No. 15—the appeal penalty for appealing against denial of incapacity benefit. Will the Minister take legal advice on whether that is contrary to Clause 40 of Magna Carta,

    "To no one will we sell, refuse, or delay the operation of right or justice"?

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It is my understanding that that is still on the statute book. It is a law which is enforceable in our courts, and there is a long tradition in case law that precisely that sort of thing—placing a financial penalty on those who seek justice—is what that clause was intended to prevent.

If the Government were to lose a court case on this under Magna Carta, it could be extremely embarrassing and lead to a great deal of publicity. Perhaps I may ask the Minister to check first.

Lord Swinfen: Before my noble friend replies, the noble Baroness, Lady Hollis, gave examples of people with disabilities who might possibly be seeking work but might well be refused it. Will my noble friend give examples of the type of work the Employment Service will expect them to obtain and how many jobs of that nature it currently thinks are available?

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