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Our first amendment is designed to ensure that patient data are not shared under this clause. By patient data, I mean health information about a claimant combined with information about their identity. Both pieces of patient data will continue to be able to be shared separately. After all, the identification of an individual as a recipient of ESA might be necessary to combat fraud. Similarly, a Jobcentre Plus in one part of the UK might want to share statistical information with another centre in a different part of the country on how many patients of a certain disability they have managed to move off benefits. What is not appropriate is that these two pieces of information are combined, so that a housing authority, for example, will be able to look at this information and know that a certain recipient of housing benefit is also suffering from a certain disability. This combination of health and identity information would be considered confidential. The exclusion of patient data is a principle that has been accepted by the Government in the Serious Crime Bill, also going through this House. I hope that the Minister will be equally amenable to the principle here. I beg to move.

Lord Addington: My Lords, the principle of protecting data is important. The general point that has been raised is important. I hope that the Minister, whose amendment is grouped with these, will be able to give us a little more clarification about what the Government are going to do to address these concerns.

Baroness Morgan of Drefelin: My Lords, I hope I can do that without going on for too long. First, I will speak to government Amendment No. 86. This is a minor amendment consequential to the government amendments to Clause 40 approved in Grand

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Committee. Those amendments addressed concerns raised by the Delegated Powers and Regulatory Reform Committee and the Joint Committee on Human Rights on one aspect of Clause 40, which deals with the use of social security information.

The proposal of a new Section 7B in the Social Security Administration Act 1992, which was originally worded to enable the prescription of benefit take-up activity through regulations, was amended so that such activity is now set out in the Bill. Another feature of Clause 40 is that it will enable English county council staff to perform certain social security functions for the first time, including promoting such benefit take-up by using social security information that they hold. It is in this connection that the consequential amendment is needed.

Under Section 123 of the Social Security Administration Act 1992, it is a criminal offence for persons employed in social security administration to make any unauthorised disclosure of information. Clause 40(3) extends the definition of,

in Schedule 4 to the 1992 Act so that it applies to English county council staff. Noble Lords will be pleased to hear that it already covers DWP staff and local authority housing benefit staff. The definition currently in Clause 40(3) refers to:

However, we need to reflect the fact that the functions concerned—namely, assisting and encouraging persons to claim benefit—now appear in the Bill in new Section 7B(3) and will not be specified in regulations, as originally intended. This consequential amendment therefore brings subsection (3) of Clause 40 in line with subsection (1).

Amendment No. 84 would prevent patient data being used for a relevant purpose. Here, a “relevant purpose” means identifying persons who may be entitled to certain benefits and encouraging, advising or assisting them to make a claim for one or more of those benefits in order to encourage and increase benefit take-up.

I take “patient data” to mean medical information or evidence provided by the customer or obtained with their consent, as these are the only data about a customer that a relevant authority will hold. I shall return to this later.

I appreciate that the use of medical data must be subject to limitations, but perhaps I may offer the following assurances as to why this amendment is unnecessary. Any medical information obtained is classed as sensitive personal information for Data Protection Act purposes and is subject to more stringent safeguards than the use of other personal information.

One function of Clause 40 is to enable local authorities administering housing benefit and English county councils to promote the take-up of benefits administered by the DWP. The benefits, which are

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listed in draft Regulation 6, paragraph (3), include those where the provision of medical evidence in support of a claim is necessary, such as incapacity benefit, employment and support allowance and disability living allowance. If local authorities were prevented from using medical evidence and information, that would restrict benefit take-up.

Another function of this clause is to support the operation of joint teams. Joint teams bring together staff from the DWP, English county councils and local authorities administering housing benefit. They work together to visit people—primarily pensioners—to encourage and help them to make claims for the benefits and other services to which they may be entitled. Because team roles are interchangeable, patient data may be collected by local authority staff in support of the claims to a benefit administered by the DWP.

Customers are not required to make a claim or provide evidence to joint team staff. Where they do so, it is with their consent and on the understanding that such information may be shared as necessary in support of their claim to benefit. The customers remain in control throughout and can opt to make their claim direct to the DWP or the local authority administering housing benefit if they prefer.

As I mentioned, there are restrictions under this clause on the purposes for which an authority can use the medical evidence that it obtains. The purposes are set out in primary legislation at Section 7B(3) and concern identifying, assisting and advising in relation to making a claim to benefit. It follows that only relevant and necessary medical information and evidence would be collected in relation to such functions.

I can further assure noble Lords that any medical information obtained is classed as sensitive personal information for Data Protection Act purposes and is subject to more stringent safeguards than the use of other personal information. The department, local authorities and English county councils are bound by the principles of the Data Protection Act in their use of personal information. As I have said previously, staff are subject to Section 123 of the Social Security Administration Act, which makes it a criminal offence to disclose information without lawful consent.

10.30 pm

I have set out what this clause in part enables, and the safeguards that are and will be put in place. Let me be equally clear about what this clause does not enable. It will not permit relevant authorities access to wider medical information than they have currently. They will not be able to access full medical data such as GP records or NHS databases. I wish to be absolutely clear about that because one or two noble Lords may have hinted at that on Second Reading, so it is important to put that on the record. Nor will the clause allow any patient data to be collected or shared unless they have been provided by the patient or obtained with their consent to support their claim to benefit.

I do not want to speak at length now about Amendment No. 85 because we had a discussion about affirmative regulations. I understand that the

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noble Lord, Lord Skelmersdale, and the Minister will discuss this issue further. I do not want to keep noble Lords with what I am afraid to say are about three or four more pages of speaking notes. I urge the noble Lord—

Lord Skelmersdale: My Lords, this is a proposed affirmative resolution to a totally different part of the Bill. Therefore, it would be helpful if the Minister would say what she can on the subject.

Baroness Morgan of Drefelin: My Lords, I am happy to do so.

In that case, accepting Amendment No. 85 would mean that regulations made under new Section 7B(2) would be subject to the affirmative parliamentary procedure. I have mentioned previously some of the aspects of this clause that relate to how information that is shared between relevant authorities may be used. Section 7B(2) is concerned with the processes that should be followed when certain information is received by a relevant authority from a different relevant authority.

The draft regulations available to the House show how the Government propose to exercise the powers in subsection (2) of the new Section 7B. Briefly, the draft provides that if information has been used in relation to a claim to benefit by one relevant authority—a local authority administering housing benefit or the DWP—or has been verified by a relevant authority, including English county councils, a subsequent relevant authority that receives this information must, subject to certain safeguards, use it in connection with a claim for an award of benefit that it administers without carrying out further checks as to its accuracy.

The intention is to ensure that if a customer has submitted information or evidence to one relevant authority, he should not have to submit the same information again to another relevant authority. This will improve the service to customers in making claims to benefit and will improve administrative efficiency.

Making these regulations subject to the affirmative procedure would mean that new Section 7B(2) of the Social Security Administration Act 1992 would be out of line with existing Section 7A, inserted by the Welfare Reform and Pensions Act 1999. Section 7A allows for regulations to be made setting out the processes that are to be followed by, for example, a local authority which receives a claim for state pension credit. The negative procedure applies there. The Government's view is that it would be rather excessive for the regulations under new Section 7B, which are about how local authorities process claims, to attract the affirmative procedure. Certainly, this appeared to be the view of the Delegated Powers and Regulatory Reform Committee, which made no recommendation in respect of this particular provision in Clause 40. I urge the noble Lord to withdraw the amendment.

Lord Taylor of Holbeach: My Lords, I thank the Minister for that full exposition of the situation.

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Amendment No. 85 has been covered because we have expressed our view that Parliament has a role in scrutinising the way that legislation moves forward. I am satisfied that the Minister has taken on board the need for confidentiality in statistical data. I hope that she is confident that the affirmative way in which people volunteer information will mean that it is safeguarded so that when it is requested people know full well that it will be kept confidential. That can only be done on a consensual basis. There would be considerable concern if this information were passed on through third parties to someone else. It would probably be done in a well-meaning way, but it would not necessarily serve the long-term interests of the confidentiality of the claimant. As we have received those assurances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 85 not moved.]

Baroness Morgan of Drefelin moved Amendment No. 86:

On Question, amendment agreed to.

Baroness Thomas of Winchester moved Amendment No. 87:

“Social Security Advisory Committee

The noble Baroness said: My Lords, I shall also speak to Amendment No. 88. Both amendments concern the remit of the Social Security Advisory Committee. Under the Social Security Administration Act 1992, draft regulations made within six months of the parent Act need not be referred to the Social Security Advisory Committee. That means that the Secretary of State and Parliament are denied the expertise of that committee when considering such regulations in draft form because many of them are, by necessity, made within six months of the parent Act’s coming into effect. Parliament and, I should have thought, the Secretary of State would find such expert views extremely helpful at a critical stage when a new benefit scheme is being set up. Professor Hazel Genn’s quinquennial review of the Social Security Advisory Committee recommended that this rule be abolished. In its 19th report, the SSAC stated that it was still working with the department on the implementation of the recommended strengthening of its role in relation to regulations laid within six months of an Act coming into force and that it is able to offer informal comments and advice, presumably to the Secretary of State. However, that does not mean that a report is published for Parliament to see.

Amendment No. 88 relates to the fact that the SSAC’s remit used to cover guardian’s allowance and child benefit before the administrative functions in respect of those social security benefits were

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transferred under the Tax Credits Act 2002 to what is now Her Majesty’s Revenue and Customs. The amendment would remedy this. Since 2002, this valuable committee has not been able to report to Parliament on draft regulations relating to child benefit and guardian’s allowance before they pass into law. I understand that under a memorandum of understanding HMRC may seek advice from the committee but it must remain confidential. Although we would like to see all benefits administered by HMRC brought within the remit of the SSAC, we recognise that the Long Title of the Bill permits amendments to be made concerning child benefits and guardian’s allowance only.

The Work and Pensions Select Committee and Professor Hazel Genn’s report recommended extending the remit of the SSAC. Can the Minister tell the House why the Government do not think it would be appropriate to extend the SSAC’s statutory remit in the way suggested? It would greatly help both Houses of Parliament to scrutinise effectively important delegated legislation in this field before agreeing to it. We should not let this legislative opportunity go by without trying to change the remit of this important committee. I beg to move.

Lord Kirkwood of Kirkhope: My Lords, this has been departmental unfinished business for a number of years, as I know to my cost. In a previous incarnation I was part of a Select Committee that looked at this area in some detail. To an extent, it is not just unfinished business but there is credibility at stake in some respects.

In the days of the Social Security Administration Act 1992, statutes of a social security nature were extensive and laid out in some detail. Most of the detail was contained in the primary sections of the primary legislation. Things have changed; the older I get, the more I can see the force of enabling legislation that can be fleshed out in statutory instruments and delegated legislation. The rationale in 1992 was that the department was entitled to six months’ respite, if I can put it that way, because the primary legislation contained all the necessary detail to foresee what would happen in the immediate aftermath of the primary statute.

That has certainly changed in this legislation, if it had not done before. I absolutely support the Government’s perfectly understandable intention to set out the framework as they have in this enabling legislation and to back it up later with SIs and delegated secondary legislation. The whole way of developing social security statutes has changed, which everyone from the social security committee to the DWP committee and the quinquennial review under Professor Hazel Genn recognised, as did Andrew Smith. When he was Secretary for State in the last Parliament, Andrew Smith gave a clear commitment that he could see the force of how the system had changed, demonstrating a need to remove the protected six-month period to which the department was able to cleave.

The last time that the Social Security Advisory Committee looked at this, in its 19th report, it

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suggested that it was making progress with the department in getting that principle accepted. It seemed that we were almost getting to the stage of saying, “Don’t worry; let’s try it this time with this Bill on welfare reform, and in the next social security legislation that comes along we will get the amendment to the 1992 SSAA”. That Act needs to be changed to put right the situation.

This amendment, which my noble friend moved so eloquently, makes a clear case, even at this late hour, that we should be making the change and giving the Government time to implement it as and when they feel it appropriate. That would seem the culmination of a series of iterative, evolving discussions with the department. This is the moment when we should take the chance, as it might not come again for some time, which would be a shame.

If we do not take that opportunity, the Government are saying that they do not value the Social Security Advisory Committee’s contribution to the legislative process, because some people in the pressure-group community outside are beginning to wonder whether there has been a deliberate attack on the extent of the SSAC’s remit. This is one element of that discussion. The Government have to be careful that they do not undersell or diminish the role of the Social Security Advisory Committee. Amendment No. 87 would be an important signal that they understood.

There are conditions in the SSAC’s 19th annual report to the effect that if, for example, we take the six-month rule out, we could start in Committee to point to some of the regulations and statutory instruments that could be the subject of scrutiny within the six-month period. This is an important moment this evening for the Government to explain clearly whether they are going to take this opportunity that the amendment clearly gives them. If they do not take it, there will be far-reaching consequences for the Social Security Advisory Committee and all the valuable work that it does.

10.45 pm

Briefly, on Amendment No. 88, again the credibility of the department is being tested. The guardian’s allowance and child benefit are benefits that are administered quite clearly under the Social Security Administration Act 1992, which is the pin Act of all eligibility for benefits as currently cast. The Tax Credits Act 2002 changed that. I believe that there were some misunderstandings after the 2002 legislation, because there were some very clear assurances that the consultation process with the Social Security Advisory Committee would not be downgraded in any way. Clearly it has been. As my noble friend argued eloquently on an earlier amendment, the new memorandum of understanding arrangements for the guardian’s allowance, child benefit and the tax credits, which we cannot technically talk about under the Long Title of this legislation, are simply not adequate for the purpose. They are, as my noble friend said, confidential to the department. The whole model of Social Security Advisory Committee processes has been established

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so that SSAC members may advise Parliament. They do so through the Secretary of State, but they advise Parliament, and for a memorandum of understanding merely to advise government through HM Revenue and Customs is wholly different. It is totally removed from the ability to ensure that when we deal with delegated legislation in the revising Chamber, we have the advantage in cold print of the views and expertise of the Social Security Advisory Committee secretariat.

Moreover, the SSAC’s work is intrinsic to the statutory process. If the Minister tried to introduce secondary legislation without reference to the SSAC, there are circumstances in which delegated legislation, even if the SSAC said that it had nothing to say about it, would be flawed and subject to contest. It is, and always has been, an absolutely intrinsic part of the social security statutory process. The other thing about memorandums of understanding which I do not like is that they are entirely discretionary. They are at the behest of Ministers and cannot be required by anyone outside Revenue and Customs bureaucracy.

Perhaps one of the most damaging things about memorandums of understanding is that they do not admit of external consultation. No one else can do as SSAC members do when they formally consult under the SSAC normal model for social security scrutiny. SSAC members can talk to the pressure-group community, academics and others. Indeed, they have a very good reputation for doing so. People know why they are being asked the questions that the SSAC asks them, and they know that the information is being put to good purpose for parliamentary scrutiny which, under the memorandum of understanding role suggested in relation to the guardian’s allowance, child benefit and the tax credits, the SSAC cannot currently do.

Finally, assurances—I certainly took them to be assurances—were given in the aftermath of the Tax Credits Act 2002 that these things would eventually be put right. Assurances were given that the consultation would be at least equivalent to the SSAC social security model through the memorandum of understanding. I do not believe that that has happened.


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