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3.15 pm

Lord Skelmersdale: My Lords, I am very grateful to the Minister for going rather further than he did in Committee in explaining this matter. It is clear to me at least that the Government of the day would have to come back to Parliament to change the regulation to achieve the use of a single descriptor at any one point. The Minister is looking at me very questioningly, however, so I shall give way.

Lord McKenzie of Luton: My Lords, it is true that if we wanted to change what we said in how the draft regulations are currently prepared we would need revised regulations. That is certainly the case.

Lord Skelmersdale: My Lords, that is exactly what I thought. I am also grateful for the confirmation that any one descriptor, either physical or mental, will be used to meet the criteria under Clause 8. I look forward to the evaluation of the technical groups that he mentioned when it appears on my horizon. The Minister has been most helpful and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Baroness Thomas of Winchester moved Amendment No. 3:

(a) a person who provides advice under subsection (1) shall be treated as having limited capability for work under section 8 in relation to the activities undertaken in pursuance of subsection (1) if he would otherwise be so treated; (b) in the case of contributory allowance or an income related allowance, any fee received in recognition of the service undertaken shall be subject to such disregard and averaging as may be prescribed; (c) in the case of contributory allowance or an income related allowance, reimbursed expenses shall be disregarded as income in such cases as may be prescribed; and (d) regulations made under section 16(3)(a) shall not apply in relation to advice undertaken in accordance with this section.

The noble Baroness said: My Lords, this is very similar to the amendment that I moved in Grand Committee. I seek to clarify the problem and set out what I believe is the solution. The Minister said in Committee that the amendment was unnecessary as the Bill contained relevant powers, but I was not reassured by his response. That is why I have tabled the amendment again.

I shall first explain what “public involvement” is in connection with the Bill. It is involvement in the

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planning and delivery of public services by someone in receipt of disability benefits. That could be membership of a committee that monitors the quality of services or that seeks to develop good practice standards; it could mean participation in a focus group or research projects, social work training or staff recruitment panels; it could also mean participation in inspection teams and social care and health services by advising on what is important to people using those services.

The amendment is important because involvement is a statutory requirement for all public bodies concerned with the delivery of social care and health services and must now include all people who use those services, which includes disabled people. There are, of course, disabled people who willingly take part in all those activities who are not on benefits; the problem that the amendment addresses does not lie with that group of people. The amendment is important because it tries to remedy real injustices uncovered in the sort of participation that I have described for those on benefits.

Before going any further I must explain that the kind of public involvement that I spoke about is likely to be intermittent. Meetings of these bodies are nearly always occasional; if they are regular it might be for a few weeks or months, or even six months, but they are never as regular or often as, say, once a week for a year, so this involvement must never be confused with paid work. This is not “therapeutic work”, which was the term used to describe work that people on incapacity benefits were allowed to do up to 2002; nor should it be muddled up with work-related activity under the Bill. Involvement might lead to work-related activity but, in itself, should be regarded as an entirely separate matter.

The amendment puts forward four remedies. The first is that disabled service users are not ready to come off benefits just because of their public involvement. Job centres often believe that, if a disabled person agrees to public involvement, especially if the committee sounds rather grand, it means that they are no longer incapable of work. That misunderstands the whole reason that a person has been asked to participate, which is their ill health—which is often severe—or their disability. The amendment therefore makes it clear that a person who is so involved cannot have their benefits taken away simply because of this involvement. It puts them on the same footing as local authority councillors, who cannot be taken off incapacity benefit just because they are councillors.

The second remedy is to allow a modest payment to be made to people on means-tested benefits—under the Bill, income-related ESA—within the amount allowed by the permitted work rules. Those on a contributory strand of ESA are allowed to be paid up to £86 in any one week, but the poorest people, those on means-tested ESA, can be paid only £5, £10 or £20 a week, depending on their circumstances, before their benefits are reduced. Under the amendment, payments received would be averaged over an appropriate period and the amount for those on means-tested benefits raised as

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prescribed in regulations. This would mean that the poorest people on benefits would not be excluded from offering their advice on public services.

The third remedy is to reimburse expenses incurred by a disabled person attending meetings of a public body. Unbelievably, reimbursed expenses for travel to meetings for those on benefits are treated as earned income, and so are deducted from such a person’s benefits unless that person has volunteered. Under the amendment, reimbursed travel expenses would be just that and could be accepted by those receiving a modest payment for involvement.

The final remedy that the amendment seeks is to disapply the notional earnings rule for service users participating in meetings. At present, if service users volunteer to help by involving themselves in the ways described, they must tell Jobcentre Plus staff, who must ask them whether they could have been paid. If the answer is yes but they decided not to accept payment because they did not want any benefits deducted, this amount is deducted anyway from their benefits. I shall repeat that because it is so outrageous: an amount that the person in question has not received is deducted from their benefits as though it had been received. That extraordinary state of affairs is called the notional earnings rule. The amendment would disapply it for such a group of volunteers.

As was pointed out in Committee, local authority councillors do not have to worry about whether they will be allowed to keep their benefits, as they are specifically singled out for special treatment under the Bill, as is the case now. Council work is treated as exempt and may not be used to assess capacity for work. What is more, reimbursed travel expenses for the journey from a councillor’s home to the place of their duties are ignored. Why should those who participate in advising public bodies be treated differently? One of my correspondents wrote:

It is difficult to estimate how many people we are talking about, but it could be around 10,000. This is of course a tiny percentage of the 2.7 million people who currently claim incapacity-based benefits.

Will this be a cost to the public purse? No, it will not, because, in practice, people decline involvement rather than risk having their benefit continuity disrupted. The current rules mean that every other person on the public body is likely to be able to receive modest payment for their participation, but that a disabled person on means-tested benefits is barred for the reasons that I have given. I have not wearied the House with illustrations from the files of the Disability Rights Commission, but I have many with me which show that this is a growing problem. The amendment is modest, but it is important, and I urge the Minister to consider it sympathetically. I beg to move.

Baroness Meacher: My Lords, I support the broad thrust of the amendment. My perspective is that of a chairman of a mental health trust. As such, I am regularly involved in committees, where we make

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every effort to involve service users. However, it is incredibly difficult to persuade service users to become involved in our work. As I understand it, one key issue making it so difficult is the consequence of small payments on people’s benefits. Most of our service users receive income support and a disability premium. Most have never been well enough for long enough to qualify for the contributory incapacity benefit; therefore, they are subject to a very tight earnings disregard—precisely £5 per week in many cases. As a result, their benefits are affected if they attend more than one meeting a week.

That terrifies people. Any change of circumstance can cause all sorts of problems, with which I know the Minister is familiar. Our people simply cannot cope with all that uncertainty and fear; therefore, they keep their involvement down to a level where their benefits will not be affected, and that, as you might imagine, is minimal. Please excuse my throat; I am losing my voice.

As the noble Baroness, Lady Thomas, argued, some way needs to be found to disregard those small earnings of people with severe and enduring mental health problems, for whom building up the capacity to take a job is a complex and often slow process. I am not suggesting a general increase in earnings disregards, as I realise that that would be extremely costly. I understand the implications of that. I appreciate that what is right for this group might then be demanded for others. However, I think that some special arrangements would be reasonable for those with enduring and severe mental health problems—and perhaps for one or two other small groups with particularly difficult problems and fluctuating symptoms—who are so difficult to reintegrate into work.

Another development might be directly affected by this amendment, and it would be very sad if it were. We plan to develop a team of service users to operate our foundation trust membership office. We thought we would need four full-time people, all of whom would be service users, but we want to take on six, eight or even more, depending on the degree of their disability. The aim is that they will work part time for as many hours as they can manage but that the required number of people will be available each day to cover the work. We hope that, over time, people could increase their hours gradually, ultimately getting back into employment. The team would provide ongoing opportunities to gain work experience. If it worked, it could be repeated across the trust and, no doubt, across the country. We have a capacity to try to assist the Government’s welfare reform agenda in preparing people with severe and enduring mental health problems for work.

At the beginning, we can perfectly reasonably pay the permitted earnings and no more. I think we can argue that. However, over time, as people began to build up their capacity to contribute more fully, it would be incredibly unfair to pay just that tiny amount. If their benefits are adjusted to take account of small increments in income—and, in many cases, on a very irregular basis, as the noble Baroness, Lady Thomas, said, together with all the uncertainties that that entails—our job preparation project and, no doubt, many others like it simply will not happen.

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I have to confess that it is hard to imagine the benefit system coping with such initiatives in a constructive and flexible way. However, could the Minister’s department consider an approach to severe and enduring mental illnesses and explore whether some method can be found to enable us to overcome the difficulties that we see? If flexibility could be achieved for the most disadvantaged groups, more severely mentally ill people could find their way back into a normal life.

As I have suggested, a similar approach might be available to other very small, particularly disadvantaged groups. It is of the utmost importance that, regardless of what is done about benefit disregards, service users in our membership office group and others like it who undertake small pieces of work must not be deemed capable of work and expected to apply for jobs before they are capable of managing.

The fact that someone can work 15 hours a week in a mental health trust as a service user does not mean that they are ready to take a job. Our trust and others like it will make all sorts of allowances by having extra staff to cover for late arrivals at work, underperformance or absences. If sanctions are applied in that situation, the ability of the mental health trust, as I have suggested, to contribute to the Government’s welfare reform agenda would simply be destroyed. As a mental health trust our objective will be to place such service users in open employment just as soon as we feel that they can cope; in fact, we take them on ourselves as members of staff. It will be important for the DWP and trusts to work together to ensure that the entire project and others like it are not torpedoed by the use of blunt benefits instruments. The question for the Minister is therefore whether the legislation can be sufficiently flexible to allow sensible decisions on the ground. I look forward to hearing his response to this important amendment.

3.30 pm

Baroness Howe of Idlicote: My Lords, I support the amendment, because, having read all the information from the Disability Rights Commission, I think this is an extraordinary situation. If I am wrong, I will be pleased to hear from the Minister. First, the very sensible passage of a previous Act that compelled such bodies to consult users was an excellent thought. It also reflects the human rights legislation in a number of ways, so that individuals, whether children or patients, have a right to have their views considered. Now we have a situation where those providing services actually want to involve users, whether in research, focus groups or recruitment sessions. It is a bit odd that there seems to be a difference between how local councillors are treated and how members of this group are treated. I am concerned that the very poorest users, those on means-tested benefit, are likely to suffer the worst deprivation and therefore their voices should be heard. They are disadvantaged far more than anyone else.

If the Minister was applying the councillor test in all these areas, where would there be a difference? Is there a difference in the way that some of these

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groups are treated? If so, why? Can it really be justified? It would be important for the debate to hear the Minister’s answer on that point.

Lord Skelmersdale: My Lords, I was not going to intervene in this debate, but two things occur to me, having heard the discussions between the noble Baronesses. The duty to consult disabled people and users of a particular service is quite different from employing them, either for cash or for free. Secondly, the Minister could perhaps use this opportunity to explain what he thinks is involved in work-related activity. I agree with the point made by the noble Baroness, Lady Meacher, that unpaid work—employment is the wrong word because it carries with it the idea of payment—for the service bodies might well lead to full-time employment. That could therefore come under the heading of work-related activity. It would be extremely helpful if the Minister could respond to that point.

Baroness Hollis of Heigham: My Lords, like other noble Lords, I very much hope that my noble friend will be able to support the amendment or that, if he cannot do so in its present shape, he can see how far he can meet these concerns by Third Reading. I hope that he can do that for three reasons. First, as services need to be reviewed and assessed continually by the users, we must engage users of services—they own them and they can shape them, with the result that the services would be improved. We have surely learnt that over the past 20 years in all our public service activity.

Secondly, when a service user is engaged in reviewing services, he should not be out of pocket. A well established social security rule is that, if you can be paid, you are deemed to have been paid whether you have accepted payment or not. I understand the complexities associated with that; without it, we would have manipulation between income and capital, between capital and income and so on. None the less, there is a perfectly good read-across to local authority work in relation to this and no one should be out of pocket. Ideally, people should have modest recompense for their time and their activity.

Thirdly—this is absolutely right—one of the problems, which we know from people on disability benefit, is that their world becomes smaller. They lose the knowledge network of jobs and of capacities for entering the world of work, and they lose the confidence to enter the world of work. Although it may take one year, three years or 10 years before someone is ready to return to remunerated work, with tax credits and so on, this proposal is a useful step.

We have made these moves with volunteering; we have already established in previous legislation that, if someone volunteers for something, that will not mean that they are regarded as ready for work. We have established those rules for local authorities, too. There are plenty of precedents, so I hope that we will do the same in this case. Other people have rightly said that ultimately we should recast the whole of the earnings disregard rules. No cost is established on this; no benefits will be “less paid” than they would be

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otherwise. In practice, people will not expose themselves to a loss of benefit. This is a nil-cost amendment.

If my noble friend feels that he cannot go all the way—I would understand that on the earnings disregard—at least the rule should be extended to non-departmental public bodies, where we want the input of service users across the board, not just for mental health trusts and the like, but also for other public bodies and public quangos, where we want to expand the world of disabled people, lone parents and so on and get the quality and value of their experience. I very much hope that, if my noble friend cannot go all the way with the amendment, he will take it away with the understanding that he will seek to make movement towards the spirit that I am sure the entire House shares.

Lord Oakeshott of Seagrove Bay: My Lords, that was a very positive and perceptive intervention by the former Minister, the noble Baroness, Lady Hollis. I was particularly struck by her comment that this is a nil-cost amendment. Whether there is a cost will be very significant in relation to whether Members from many Benches will support it. I specifically ask the Minister to address that point. In practice, does he believe that there will be costs in accepting it? In theory there might be, but we on these Benches believe that, in practice, it is a nil-cost amendment.

Lord McKenzie of Luton: My Lords, I thank the noble Baroness, Lady Thomas, for raising this matter and giving us a chance to debate again an extremely important issue. It gives me an opportunity to make an announcement that will go some way towards addressing the concerns raised by noble Lords.

The amendment provides a new power to disregard payments received and to ensure that activity undertaken as part of the service-user involvement would not be taken into account in calculating benefit entitlement or payments. The Government recognise the importance and value of encouraging participation in public life and in learning new skills, gaining experience and building confidence. Service-user involvement involves many of the skills and activities in which people routinely engage in everyday employment. Indeed, that could count as part of a person’s work-related activity when a requirement is introduced in time.

The noble Lord, Lord Skelmersdale, asked me to define “work-related activity”. I refer him to Clause 12(7) of the Bill, where it is defined in a wide manner:

That point has been touched on by a number of speakers. I was interested in what the noble Baroness, Lady Meacher, said about using the foundation trust as an opportunity for people to job-share, to help them to gain confidence and to get closer to employment.

We are aware of the concerns that have been raised about how current benefit rules can make it difficult to ensure service-user involvement. However, we

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believe that, in relation to receiving benefits to participate in such activity, the benefit rules provide a fair balance between encouraging participation and creating the correct work incentives, while also protecting the public purse.

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