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Earl Russell: My Lords, I must apologise to the House that I was still making my way back after Telling when the noble Baroness rose to move the amendment. I am correct, am I not, that the noble Baroness moved Amendment No. 2, which is grouped with Amendments Nos. 5, 96B and 96D?

I strongly support the amendments, with the sole reservation that they are painfully modest. The amendments deal with the right to severe hardship payments pending appeal. I should like to express my regret to the Minister that we became so heated when we debated the issues last Thursday night. I have tried my level best to understand what he said. I hope that I have improved the understanding between us; I am not sure whether I have succeeded. However, as I expound what I believe he was getting at, perhaps he will correct me if I have understood incorrectly; I may well have done so.

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Two issues caused me considerable bewilderment as regards the Minister's arguments last Thursday night. First, why did he consider that he was allowed to take away benefit without due process? That question goes very deeply to this issue: how far is social security subject to the rule of law? Secondly, why does a suspicion that a person does not meet the conditions of entitlement constitute proof?

Of course, the hub of the issue is the basis of entitlement to benefit. The noble Baroness and I suggested that, as with a prosecution for crime, the basis should be innocence until proved guilty. The Minister did not like that argument. I suggested that the basis might be similar to that of the law of property: you have the right to remain in occupation of your property until you are proved not to have a title to it. As the phrase runs, possession is nine points of the law. That goes back a great many centuries. The Minister did not like that suggestion either.

I have since taken legal advice on the question: what is the basis of entitlement to benefit? The advice that I have received is that it is to be treated as a civil right. However, that gives the same assurances and the same protections in many ways as if it were property.

I have read what the Minister said. It seems to me that the hub of his argument rests on the question of burden of proof. At col. 273 of the Official Report of 11th May, the Minister said:

    "As the entitlement has not been established the benefit should not be paid".

I believe that if you meet the means-tested conditions, it is prima facie evidence of entitlement until proved to the contrary. But, if I have understood the Minister correctly, the situation is more like the 11-plus examination. You have to go through an examination before you are eligible. But, like the 11-plus examination of days gone by, it is very often wrong. I do not find that notion of entitlement persuasive. It is doubtful whether it is compatible with present law.

I wish to raise one technical point with the noble Baroness and the Minister on Amendment No. 5. The amendment provides protection for women in refuges. As I understand it, those women have hitherto been protected under the availability rules. They are treated as though they are available for work even though they are not. I trust that the noble Baroness agrees that; if it appears better to Women's Aid and to the Government that that should remain so, the matter should be tidied up at Third Reading. The Minister promised us that before debate on the Bill concludes he will tell us how women in refuges are to be treated. I hope that he is now in a position to do so.

I ask the Minister this question once again. If a person meets the test for eligibility for means-tested benefit but does not receive it, how can he not be in hardship? I accept the answers that he gave: that they have savings or relatives caring for them. That will not be the position for most of the people involved. Therefore, why does the Minister believe that we can disentitle them yet not put them into hardship?

The Minister listened to what my noble friend Lady Williams of Crosby said about the effects of disentitlement in the United States. Since she spoke, we

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have had a new report from NACRO on social policy and crime. It supports, with a wealth of footnotes, everything that my noble friend said. If the Minister considers the amendment in terms of costing, I believe he will find that the provision is cheap at the price.

6.15 p.m.

Baroness Williams of Crosby: My Lords, I make one point in addition to those so forcefully made by the noble Baroness and my noble friend Lord Russell. It relates to a specific group in a list of vulnerable persons which we discussed perhaps less than some of the other groups.

The House debated with sympathy and due consideration the position of those who are not so disabled that they draw disablement benefit but, equally, have some disability which makes employment unlikely or difficult to attain. However, there is another group. My noble friend touched on it. I wish to ask the Minister about that group. Let me make this plain to noble Lords in the House who may wonder about the sheer modesty of the amendments. We have accepted a 40 per cent. reduction from the already relatively low level of income benefit—we have not accepted it; we have attempted to encourage the Government to concede on the issue of the most vulnerable groups.

The two groups that I wish to talk about are referred to in the list of vulnerable groups. They are those under the age of 18 who are living independently, or those in refuges. My noble friend referred to battered women in refuges. But there is, too, the group of children or young people in refuges who are escaping from physical, sexual and other forms of abuse. I am pleased to see present the right reverend Prelate, who knows one of the poorest areas of this country. He will know, as I know, that it is a real problem. The young people have fled their homes for overwhelmingly good reasons because they have suffered abuse of a kind that I shall not at present seek to illustrate by examples. However, there are horrendous examples. Those young people should not be compelled to live in absolute poverty while their cases are being adjudicated.

In the same way, women who are liable to be severely battered and beaten up should not be compelled to return home because they have no means of continuing to live in a refuge. Indeed, I ask seriously whether the Minister considers that it can possibly be right to drive people back to such conditions in those situations.

I raise one other issue. If there is no legitimate form of income for a young woman or young man who has been abused or treated with violence in her or his own home, and she or he is therefore living rough to escape, the alternative is all too often prostitution. This House should think carefully before taking any steps which might drive young men and young women in that direction. The report from NACRO bears out the fact that many young people are driven to prostitution when they have no other source of legitimate income, if they are not driven to crime.

Lord Swinfen: My Lords, this group of amendments is designed to ensure that a vulnerable person is not totally destitute while waiting for the decision as to

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whether he or she will obtain the jobseeker's allowance. It may not be the right way to tackle the problem in the Bill. It may be better for it to be done by regulation. But I hope that, when replying to the group of amendments, my noble friend will be able to assure the House that vulnerable people will not be left destitute, possibly having to find an income by an immoral or illegal activity. How will such people be supported? They are vulnerable and need support. How will they be funded? How will their children be provided for? I hope that in reply my noble friend will address that point. There may be other ways in which support will be given, but as a civilised country we must give vulnerable people some support.

Lord Henderson of Brompton: My Lords, I support the amendment. Does the Minister agree with the list in subsection (2B) in Amendment No. 5? I find it difficult to believe, running through the list, that he could maintain that any single provision should not be there.

On the other hand, I should like to see the provisions in the Bill because the case that has been made out for them is incontrovertible on humanitarian and also on legal grounds and they should be on the face of the Bill. In a year when we shall enact one of the disabled persons Bills now before Parliament, it is entirely right that Amendment No. 5 should be put on the face of the Bill. It should also have the power, which the amendment would not give, to add to the list. That is, not to amend the list: I do not believe that we should subtract any provision from the list but I see no reason why a power should not be added which would make the amendment more agreeable to the Government. By statutory regulation, by either the affirmative or negative instrument, the list could be added to, but it should not be in any way diminished.

In this Session of Parliament, disabled people who are called "vulnerable" in the amendment should be specially cared for under the Bill. Therefore, I strongly support the inclusion of the amendment.

Lord Mackay of Ardbrecknish: My Lords, I understand some of the anxieties that have been expressed by the noble Baroness and other noble Lords this evening on these issues. JSA hardship payments will be the safety net in the benefit system for those who are required to be available for work in order to receive benefit, so it is important to ensure that vulnerable claimants are effectively protected.

Amendment No. 5 is the crux of the noble Baroness's proposals. The amendment deals exclusively with cases where a decision is awaited on whether a claimant is available for and actively seeking work or whether he has entered into a satisfactory jobseeker's agreement. It does not deal with cases where an adverse decision on those matters has already been made. The noble Baroness has been quite clear that it is this group which particularly concerns her because the issue of doubt has not, in this case, been resolved. Interestingly enough, Amendments Nos. 96B and 96D would remove our power to make hardship payments to people after such a decision. I am not entirely sure that that was the noble Baroness's intention.

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So we are looking here only at cases where we do not know whether someone is entitled to JSA because we do not know whether they are available for work, or we do not know whether they are actively seeking work. It cannot be acceptable to pay benefit automatically to people before we know whether they meet the entitlement conditions. That would not be a responsible use of public funds.

We take the view—and I think this may be the main difference between us—that the same principle applies mid-claim if it appears that the claimant is not continuing to satisfy benefit conditions. I must remind the House once again that JSA is a conditional benefit. People are expected to do something in return for the money they receive. They must satisfy the conditions not just once at the beginning of a claim, but throughout a claim. Therefore, if a doubt arises, then the case must be referred to adjudication and once again benefit should not, in our view, be payable on the normal basis as if no doubt had ever arisen.

We agree that it is right to afford protection to the vulnerable faced with a situation of hardship. I can assure your Lordships that hardship payments will be available to vulnerable claimants who need that protection. The Government's proposals broadly follow the pattern that currently applies in actively seeking work cases under income support. Where a question has arisen in JSA over whether someone is actively seeking work, or on his availability for work, a claimant will be able to be considered for a hardship payment throughout the period of consideration if he is in one of the prescribed vulnerable groups.

However, where the adjudication decision is taking longer than two weeks, claimants outside the vulnerable groups will also be able to receive JSA if they demonstrate hardship. We believe that is a reasonable and fair approach. The claimant has not demonstrated that he meets the normal conditions for benefit, therefore it is not awarded under normal conditions. But the hardship payments will provide the protection for those in vulnerable groups who need this right from the start, and we will extend this to all other claimants if the decision-making process is a lengthy one and if after a fortnight no decision has been reached that they have failed the labour market tests.

Paragraph 10 of Schedule 1 contains the regulation-making powers to award benefit to people despite entitlement not having been established. This will apply both at the outset of a claim and when an existing award has been suspended because of a doubt as to whether a person is continuing to satisfy the jobseeking conditions.

Amendment No. 5 also seeks to define on the face of the Bill matters of detail concerning the definition groups which will have access to benefit as "vulnerable groups". As I have outlined to your Lordships before, the regulations in JSA which define the vulnerable groups with access to hardship payments will build on those currently applying in income support to claimants who fail to look for work. That includes households where the claimant or partner is pregnant; where the

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claimant is a member of a couple with responsibility for a child or young person; and where the claimant or partner qualifies for a disability premium.

We are expanding this definition, in line with our commitment in the White Paper, to cover people who are sick and disabled. People who are incapable of work should normally be claiming an incapacity benefit. However, some claimants who suffer from a serious underlying medical condition, rather than a disability, may be capable of work, but may for dietary or other reasons be particularly seriously affected if all benefit is withdrawn. Consequently, we propose that where the claimant or partner has a serious medical condition of this type they will have access to JSA hardship payments at all times, if they meet the normal hardship tests.

We are also widening the groups who can receive hardship payments to include those with caring responsibilities. We have looked carefully at how to define the group we are concerned to protect—those who provide substantial care to sick, disabled or elderly people. We wish to strike a sensible balance which recognises real need but does not include cases where the care provided is negligible. The amendment of the noble Baroness would make for an unworkable gateway.

The clear starting-point in the benefit system is invalid care allowance, which goes to those with significant caring responsibilities. The qualifying condition to ICA is that the person being cared for must be in receipt of the middle or higher rate of disability living allowance care component or of attendance allowance. We propose to set the same condition for carers' access to hardship payments. However, in view of the fact that the claimants involved are claiming a jobseeker's benefit rather than a carer's one, we do not propose to apply the additional ICA qualification of at least 35 hours' a week caring. To qualify for access to JSA hardship payments the claimant will need to be responsible for regular care, but there will be no specific hours rule or prescribed pattern of caring.

Of course, if a carer qualifies for ICA he or she can choose not to be a jobseeker and can qualify for income support as a carer. And I would remind your Lordships that ICA remains payable for eight weeks after the recipient ceases to be a carer, which provides a period of grace before some ex-carers come into the ambit of JSA.

We are confident that these definitions will strike the right balance between protecting the taxpayer from paying benefit where there may be no entitlement, and protecting those in vulnerable groups from hardship. The noble Baroness's amendment would go much further than this by paying benefit automatically to most groups when we do not know whether they are entitled to it. It would also through its final subsection open hardship payments up to everyone at all times.

The noble Earl, Lord Russell, asked me whether it was legal to suspend benefit on grounds of doubt. It is a longstanding feature of social security law that benefit can be suspended. Section 5(1) (n) (i) of the administration Act allows regulations to provide for suspension:

    "where it appears to the Secretary of State that a question arises whether—

    (i) the conditions for entitlement are or were fulfilled".

Parliament has approved that principle, which will apply in JSA as it does in other benefits.

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I now turn to the question of people with one or more points from the IB test. I cannot accept that we should go so far as the noble Baroness wishes in her amendment. Many people would score a point or two in the test, but that does not mean that they are necessarily particularly vulnerable to hardship. Those who do not qualify—

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