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Earl Russell: My Lords, this amendment deals with people not of incapacity but of limited capacity. The Minister may regret that we keep returning to this situation. I accept entirely the assurances that both Ministers have given us that they wish to deal with this category of cases. Their intentions are entirely adequate. Our reason for returning is that they have not made those intentions effective. The cases keep on coming of people who are found ineligible for incapacity benefit but are not signed on when they go to the Employment Service. So long as the cases go on arising we must keep on returning to the problem of finding some adequate way of providing for them. The Minister will, I hope, forgive us that.

Let us take, for example, epileptics. I speak with feeling on this subject because I have had epilepsy in my own family. My grandfather was an epileptic while being a distinguished Member of another place. I understand perfectly well that people who are epileptics can work and can do so extremely successfully. But we

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are also dealing with the attitudes of employers. A case came to the National Association of Citizens Advice Bureaux recently of someone who had been working perfectly adequately until his employer discovered that he was epileptic and said, "We don't want any epileptics here", and produced a cock and bull reason for dismissal involving a voluntary unemployment penalty while it was investigated. That is typical of the kind of reason, to return for a moment to a previous amendment, why we want benefit paid during appeal.

Here again, we also return to the effect of performance-related pay. Placing people in employment is a positive outcome. I do not think there is any argument about that, but there is room for argument about the effect of it, because if placing people in employment is a positive outcome, the employment officer is likely to take more trouble over those who are easier to place in employment because he will be scoring more successes. He is likely to take a rather dim view of finding his office, as he would see it, cluttered up with large numbers of people whom it is extremely difficult for him to place in employment. That is a quite unfair interference with his performance. That is the sort of problem which we are getting and which explains why employment officers are making so many difficulties about people coming off invalidity benefit being allowed to sign on. I hope that the Minister will pay some attention to what is actually going on on the ground and do something to make his will to stop it effective.

Lord Swinfen: My Lords, those who have spoken have done so extremely ably. All I can say is that I support this group of amendments.

7 p.m.

Lord Mackay of Ardbrecknish: My Lords, we have had a considerable amount of discussion about our proposals for people who leave incapacity benefit and claim JSA. I very much appreciate the concerns expressed by the noble Baroness and the noble Earl. We share these concerns that people with a physical or mental condition have needs which require special consideration. I can assure your Lordships—I have done it before and I am happy to do it again—that we have drawn up the JSA proposals and in particular the availability rule, taking account of these requirements.

The noble Earl, Lord Russell, mentioned that examples keep on coming. It would be quite hard to keep on coming considering that incapacity benefit has just started. I appreciate that the noble Earl was actually referring to invalidity benefit and the situation before the incapacity benefit came in. One of the targets which I hope he will approve of, although he disapproved of others earlier, is a target which says that the objective is to offer people with disabilities particular help and advice in finding and retaining work or appropriate training and to help and encourage employers to make work or training opportunities available to them. Four per cent. of total unemployed placings achieved will be for people with disabilities. In that regard I hope that he sees the target as a positive one.

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Earl Russell: My Lords, I am grateful to the Minister for that, but, before giving employment officers contradictory targets, I ask him to remember the fate of the chameleon that was put on tartan. It dropped dead.

Lord Mackay of Ardbrecknish: My Lords, perhaps I may suggest that it would depend entirely on what the tartan was and how much trouble it would entail.

I now turn to Amendment No. 3. I am a bit perplexed about it. The amendment provides that a person who has failed the all-work test in IB but has been awarded at least one point, who will be treated as not available, should still receive JSA. We intend to use the power to treat people as not available, as was discussed in some depth in Committee, to treat a limited number of groups as not available: full-time students, women who are receiving statutory maternity pay within the maternity pay period, and prisoners on home release. The reason for this is clear. Although people in these groups may be able to make themselves available for work, we have made other provision for their support. The power will ensure that, if any people in these groups make a claim for JSA, they will be treated as not available. I see no reason why people who have failed the all-work test and who fall into one of these three groups should receive JSA when other, more appropriate, provision is available.

Having listened to the two speeches, I suspect, however, that the intention behind the amendment is to allow people who have failed the IB all-work test and do not make themselves available for work to receive JSA without fulfilling the availability condition. If this is the intention, I cannot agree that this is correct. A decision on IB that a person is capable of work will apply across all other benefits. I have mentioned that on a number of occasions. Thus a person who has failed the all-work test will automatically be capable of work under JSA and will be entitled to allowance provided he is available for work. As I have said many times before, all JSA claimants will be able to restrict their availability in line with their physical or mental condition, and with no requirement that such restrictions should be inhibited by their prospects of securing employment. This will, of course, apply equally to those who have failed the all-work test.

As regards Amendment No. 28, I reassure the noble Baroness that we want to include, not exclude, people with disabilities in JSA and to this end we have taken the needs of people with disabilities into account in drawing up the JSA labour market rules. We intend to carry forward the current provisions in unemployment benefit and income support which allow a person with a mental or physical condition to place restrictions on the nature, hours, rate of remuneration, locality or other condition of employment which he is prepared to accept where those restrictions are reasonable in view of his condition.

I would like to emphasise to your Lordships, however, that the first priority of jobseekers is to find employment and to this end it is vital that jobseekers are available for employment. The noble Baroness's amendment would seek to ensure that disabled claimants can claim JSA without fulfilling one of the main labour

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market entitlement conditions. It would be wrong to open up the availability condition to people who are not prepared to be available for employment.

The amendment specifically refers to people who have failed the all-work test but have been awarded one or more points in respect of one or more descriptors applied under that test. This would include, for example, someone who cannot walk more than 400 metres without stopping or severe discomfort, or someone who cannot answer the telephone and reliably take a message. I assure the noble Baroness and your Lordships that we recognise that for some, though by no means all jobseekers, the reality will be that their condition will mean that there is necessarily some reduction in their job prospects because of their condition. That is the reality and we accept it. As I have said many times before, and I am happy to say it again, provided that jobseekers in these circumstances remain available to the extent that their condition permits, we want to ensure that they may be entitled to JSA and to offer them all the general and specialist facilities which the Employment Service has available.

Where the claimant or partner would be entitled to a disability premium or where the claimant or partner has an underlying medical condition which means that they would be at risk, payment of JSA can be made at any time that hardship can be demonstrated, even when the claimant is not available for work.

I turn to Amendment No. 76. I entirely accept that where it is unreasonable, by reason of a disability, for a claimant to take a job or to accept an offer of a place on an employment programme or training course, that person should not be penalised by facing a benefit sanction. Before an adjudication officer imposes any sanction he would always consider whether the claimant had good cause for such actions. Current regulations, which we will be following in JSA also, already specify that he should take into account harm to the person's health and excessive mental or physical stress to which the job or programme might subject him. Therefore, if the kind of disability identified by the all-work test meant that the job offer was inappropriate or the training arrangements unreasonable, appropriate protections against sanction are built into the system.

I should add, of course, that, even where a sanction is applied because the person was not considered to have had good cause for his actions, a disabled person, or someone with an underlying medical condition which would put them at risk if benefits were withdrawn, would have access to hardship payments throughout the period of sanction.

However the amendment would go much further. No sanction could be applied, whatever the circumstances, if the person had been awarded one or more points against the descriptors of the all-work test. This is a pretty sweeping exemption. A person could be sacked from a job for gross misconduct but could receive full benefits as if nothing had happened. A person could refuse any job offer, however reasonable, even where it was fully compatible with his disability, and continue to receive the same level of benefits. A person could refuse

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a place on a training course, even one specially designed for his special physical or mental needs, and not face any consequences.

The noble Baroness used her example again. I presume that it was the same example which she used in Committee; namely, a person with quite severe depression getting only six points. I have looked in some detail—

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