| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
The second point concerns childcare. In view of our detailed debate on those issues on our first day in Committee, I will not be moving Amendment 57. However, we will return to childcare in relation to Amendment 75, as it raises different issues from those discussed on Tuesday. In this context, I draw noble Lords’ attention to Regulation 11(5)(m) of the draft regulations. In my view, the wording of the sub-paragraph is very general. It says only that childcare must be “reasonably available”—or does it mean that reasonable childcare must be available? What does “childcare must be reasonably available” mean? It is not very helpful. The sub-paragraph also says that childcare must not be,
It says nothing about the quality of the childcare available or the training of the staff. I would be grateful if the Minister could give further thought to that in the light of the discussion on our first day in Committee.
11 Jun 2009 : Column GC123
I was thinking of ending with a particular example but I have probably said enough. I know that the Minister is well aware of the issues behind these amendments and I know he is sympathetic to the particular difficulties of claimants with mental health problems and other fluctuating disorders. Perhaps I may take this opportunity to congratulate the new Secretary of State at the DWP on her appointment and make the point that she, too, is very sensitive to claimants with fluctuating disorders. That gives me hope that we have achieved some progress.
On behalf of those with fluctuating disorders but also on behalf of all claimants, I hope that the Minister will agree to the principle that the definition of “good cause” should be included in the Bill and that the detail of the regulations needs to be revisited before Report in order to find a better wording. I beg to move.
Baroness Thomas of Winchester: As the noble Baroness, Lady Meacher, said, the wording of this amendment to Clause 1—with its definition of “good cause” for a failure to comply with mandatory activities and provision for a sanction—is taken directly from the Jobseeker’s Allowance Regulations 1996. All the different circumstances in the original definition must have been enumerated for a reason and are not simply an arbitrary list of excuses. However, as the phrase good cause is not defined in the Bill, I, too, would like to know whether it will follow the earlier regulations. On Monday, we received a draft of the good cause regulations for ESA. These regulations appear to be pretty comprehensive though I see that we have lost the manning of lifeboats and the fire fighters. However, we have not received any regulations for Clause 1.
On page 87 of the Peers’ information pack it states:
“The Government intends that the good cause for not participating in a Work for Your Benefit pilot scheme will be consistent with the good cause provisions currently contained in regulations relating to other employment programmes”.
Good cause considerations are set out on page 90 of the same document. At the beginning of the paragraph it states:
“It is envisaged that regulations will provide”,
but the factors that are then listed are given as examples. We do not want to be unduly suspicious but I do not think that it is asking too much for us to know exactly what “good cause” will mean in the context of this clause. This is such an important amendment because it would cover, among others, those who have a fluctuating mental health condition but who are nevertheless on JSA rather than in the employment group of ESA and therefore subject to the conditionality regime of Clause 1. It is still Clause 1 that we are talking about.
I note that one of the examples of good cause considerations given in the pack is if the physical or mental condition of the claimant makes it impossible for him or her to undertake the activity. That should cover fluctuating mental health conditions. However, I would like the Minister to reassure the Committee that that will be explicit in the regulations.
11 Jun 2009 : Column GC124
2.30 pm
Baroness Murphy: I have added my name to three of these amendments. I think that it is important to add them to the Bill because of what will happen when this law is implemented. Regulations are one thing, the law is another; it will be seen as something that you cannot avoid. I have every confidence in the Minister’s good intentions and if I thought that his clones would be running the employment advice service in jobcentres I would be quite happy. Unfortunately, I know that he will not be running it and that not everyone is as well-meaning and well-intentioned as he. We have to get real about what really happens to people with mental health issues, especially serious mental disorders, and about how and why they are treated as they are. People with serious disorders do not just have fluctuating conditions that mean that sometimes they can work and sometimes they cannot; they often also have difficulties in establishing good social relationships with the people they come into contact with on a daily basis. That includes, among others, the employment advisers and others at the centre. Barriers and anxieties quickly arise and the employment adviser will find it darned difficult to get people through these systems.
We have to take account of the relatively chaotic lives and fearsomely obsessional behaviour of some of the people with serious mental health problems. They can get into habits that are extremely difficult to break. They can have a pattern of daily life that makes it difficult for them to stop and do something else and to establish a new pattern. They do not have conditions like the one that Sarah-Jane has. Sarah-Jane, aged 35, is mentioned in the wonderful pack that the Minister provided. I am not sure whether noble Lords have read this pack yet as it arrived only today, but it contains some good descriptions. Sarah-Jane has “a mental health condition”—but it sounds a bit like a broken leg and is getting better now. It is just not like that. Noble Lords may ask why this matter is so important as regards this clause and clauses like it. It is because we must establish a specific responsibility in the law to help people who lead chaotic and difficult lives as a result of mental health problems, and to take this matter very seriously. I know that the Minister does; I just want to make sure that everybody else out there does too.
The Countess of Mar: I, too, support the amendment. The Minister will recognise that it is one after my own heart. I am very concerned about people not being able to participate—their trying and then failing, and that failure being a real setback to them. If people with ME/CFS overstretch themselves that can sometimes set them back for years. If they feel compelled to undertake the activity that they are told to undertake, who is responsible if they become seriously ill? What happens as regards insurance for them?
Baroness Afshar: It is important to include mothers of children who are sick and unwell but are not disabled, and children with fluctuating illnesses. Those mothers will always end up being very unpunctual, unsatisfactory workers who cannot take on most jobs. It is important also to include cultural specificities. Muslims need prayer rooms and washing rooms and
11 Jun 2009 : Column GC125
Lord Ramsbotham: I, too, strongly support these amendments, perhaps for a slightly indirect reason as well as a direct one. The direct reason was ably spelt out by my noble friend Lady Murphy; that is, the problems faced by those with mental health problems trying to cope with some of the demands that may be implicit in the Bill. I am thinking not just about people with mental health problems in the community but those held in institutions. This is where the slightly indirect implication arises. For the past three years I have been involved with the Independent Asylum Commission, looking at the treatment of asylum-seekers and immigrants, including those suffering from extreme mental health problems. We described in our report a disturbing factor that came out of all this as a culture of disbelief. This permeated officialdom and meant that it was not geared to understand, and therefore cater for, the problems which existed. One of the reasons why I am all for spelling out as much as one possibly can of what one means by “good cause”, is to help overcome that culture of disbelief, which we simply cannot afford to have spreading through a system involving people who suffer from the problems that we are discussing.
Lord Rix: I notice that my noble friends Lord Ramsbotham and Lady Murphy referred to mental health conditions. However, the amendment refers to “mental disablement”. I therefore presume that that includes people with a learning disability.
Lord Northbourne: I do not want to spoil the frisson of anticipation that no doubt exists regarding what I shall say about Amendments 22A and 22C, but I strongly support this amendment. My only comment is that I doubt whether its terms are strong enough
Lord Skelmersdale: I admire the lengths to which the noble Baroness, Lady Meacher, has gone in her amendments to suggest what might be considered good cause for not fulfilling an obligation or duty imposed by the Bill. As has already been pointed out, she has even thought about someone being unable to fulfil their duty because they were helping to launch a lifeboat, which is not a task that I would have thought about had she not so diligently included it.
I agree with the noble Baroness, Lady Murphy, that the devil is in the detail in all of this, although I would not be as specific as that. None the less, to be fair to the Minister—as, I hope he will agree, I sometimes am—we are beginning to pin him down on “just cause”. This amendment adds to that pressure. The noble Baroness, Lady Meacher, specified a number of different scenarios, including risk to health and well-being, excessive travel time, participating in a scheme or activity, or serving as a juror. I am not sure that I can find anything to criticise in those ideas, because each provides a valid excuse for someone obliged to participate in the schemes under this Bill not to do so. Indeed,
11 Jun 2009 : Column GC126
The Bill recognises that commonsense position by allowing for regulations to be made which will describe those circumstances in greater detail. I wonder whether we really need this level of prescription in the Bill, if only for the reason that it takes a long time to change an Act of Parliament. The Minister has pointed out several times that he requires flexibility in negative resolution orders. There is a good use for regulations, because, during the pilots, it will be found that various things need to be changed—probably quite quickly. The noble Baroness, Lady Meacher, is shaking her head. Does she want me to give way?
Baroness Meacher: No, I did not particularly want the noble Lord to give way. However, it seems to me that in something as important as the definition of “good cause”, which is the primary safeguard in the Bill, it should be possible for people to sit down and work out the absolutely essential elements of something that should last for a number of years. I cannot believe that we cannot do that. It is so important that we should.
Lord Skelmersdale: I am afraid that we shall have to beg to differ, because I am on record many times over the years as saying that I hate shopping lists in Acts of Parliament. That is what we have in the Bill.
I was saying that there is a use for regulations, after all, and if they are sparingly used, they have a place when we are crafting legislation. However, the place for regulations might very well be in a readable document that your Lordships have had the chance to read before debating the enabling provision in Grand Committee, where, of course, most regulations are now discussed in your Lordships’ House. If the Minister is unable to elucidate further on what exactly we are expecting to see in these masses of regulation, then at the very least the need for the clarity provided by the noble Baroness’s amendment begins to seem rather a good idea, despite the fact that I dislike shopping lists—because you are bound to miss something and to include something that you do not ultimately want. Then, of course, the regulations will have to include it. I hope that we will hear an explanation from the Minister in his reply.
Amendment 75 would prevent the sanction of stopping JSA payments in cases where there was inadequate childcare. I refer to the debates we have had on childcare. It is clear to me, and I hope to the Minister, that this is one of the great sticking points. I am the first to admit that. The noble Baroness’s amendment does something slightly unusual: it places a duty on the Secretary of State to prove a negative. In this case, the lack of childcare was not responsible for the claimant behaving in a manner that would otherwise—
Baroness Meacher: I am sorry, but Amendment 75 comes up later. I have not spoken to it at this stage.
11 Jun 2009 : Column GC127
Lord Skelmersdale: I am sorry; I thought it was grouped with this amendment.
Baroness Meacher: I was trying to clarify. Amendment 76 is in this group.
Lord Skelmersdale: I am sorry; I thought it was grouped with this amendment. I have lost my list of groupings.
The Countess of Mar: To help the noble Lord, it is Amendment 76 that is grouped with these amendments. Amendment 75 is not in the group.
Lord Skelmersdale: In that case, perhaps it is better if I stop at this point.
2.45 pm
Lord McKenzie of Luton: I thank my noble friend Lady Meacher for moving this amendment, which again has given us an opportunity to discuss an important issue. I take note of the strength of feeling on this issue, particularly about mental health, that has been expressed. I thank the noble Baroness, Lady Murphy, for her kind words, but I believe that my position on this is genuinely shared across government; it is certainly shared by the new Secretary of State, and indeed by her predecessor.
This group of amendments is aimed at good cause and applies across the various benefits and conditionality regimes in the Bill. On the surface the amendments address a common theme: getting more detail about what will and will not be automatically accepted as good cause.
To pick up on the point made by the noble Lord, Lord Skelmersdale, I shall address why this level of detail is not already in the Bill. I assure the Committee that there are no hidden agendas here; it is merely a practical consideration. As I have already outlined in earlier discussions, the detail of social security legislation changes frequently to take into account changes in operational need, learning from pilots—something that is certainly relevant to the consideration of the clauses before us—and indeed changing economic situations. We use more flexible secondary legislation as a result; that is not a deliberate attempt to frustrate scrutiny but an attempt at practicality. I should point out that this approach has been accepted by the Delegated Powers Committee and has been used successfully in social security legislation many times before.
I accept that there needs to be scrutiny and transparency about these matters, which is why the department routinely consults, as it has to, with the Social Security Advisory Committee about our regulations. Given that, the Committee might find it useful if I set out exactly how we intend to use good cause. In terms of the “work for your benefit” programme, I can confirm that we will use the same good cause provisions as already exist and have been applied in the jobseeker’s allowance. The Committee will already have seen the draft regulations for good cause provisions in the employment and support allowance—my noble friend
11 Jun 2009 : Column GC128
One or two specific points were pressed. I confirm that these draft regulations were not available for colleagues in the other place. With regard to some of the wording in them, specifically the question of “must” or “may”, they are of course drafts; they are meant to be illustrative, and do not necessarily represent our finally agreed position. I hope, however, that they provide a helpful basis for discussion on these issues, such as indeed they have engendered today.
The draft regulations on good cause mirror those already in place for good cause in relation to work-focused interviews. The rationale behind the use of the word “may” is to give the decision-maker the maximum flexibility to take into account the individual circumstances of the customer. However, I accept the arguments in favour of replacing “may” with “must” or “shall”, as this would still allow the decision-maker the flexibility to take into account matters other than those set out in the regulations. I am willing to undertake that “must” or “shall” will be in the final version.
With regard to travelling time, we see that “reasonable” travelling time should be the test. Obviously that will depend on the circumstances of the case, and therefore we would need some convincing for a more specific provision in the regulations. This approach provides both a fixed framework for decision-making and flexibility for the decision-maker to take into account all the circumstances of any given individual.
The process for the employment and support allowance will be very similar to the existing ESA process if a claimant fails to attend or engage in a work-focused interview. In addition, the personal adviser will, before starting the initial work-focused interview, explain the progression-to-work model and what will be expected of the customer. This will of course include the work-related activity requirement and the power that the adviser has to direct a claimant to a specific work-related activity in limited circumstances.
If the personal adviser establishes that the customer has a mental health condition, learning disability or other condition affecting cognition, such as stroke or autistic spectrum disorder, they will make an additional explanation of the conditionality to ensure that the customer understands the requirements.
If a customer fails to carry out the required work-related activity, the adviser will discuss this non-compliance with the customer at the work-focused interview. This will provide the first opportunity for the customer to show the adviser that he had good cause for not complying with the work-related activity requirement. If the customer fails to show good cause at the interview, the personal adviser will hand him a letter explaining that he now has five days to show good cause for non-compliance. If a customer does not turn up to a work-focused interview, he will be posted a letter outlining the consequence of his non-compliance, and he will then have seven days to show good cause.
If the customer has a mental health condition or learning difficulties, the personal adviser will arrange for a home visit to take place. The adviser will always
11 Jun 2009 : Column GC129
In terms of lone parents, whom we discussed on Tuesday at length, jobseekers’ regulations already state that account must be taken of any caring responsibilities that a parent has, whether childcare is available and whether the childcare is suitable for the needs of the parent and the child. The lone parent regulations have been in place for some time, and we were not particularly proposing to change them because they seem to be effective in meeting our requirements. Nevertheless, before I seek to expand on some of the other points, I am happy to say that we will reflect on the potential benefits of being more specific in the Bill. I do not undertake that we will do so, but that point has been pressed and I think that we are, rightly, obligated to take the matter away and deal with it seriously.
The noble Baroness, Lady Murphy, referred to the case studies, and the noble Countess, Lady Mar, said that none of them includes someone aged 50 or over. I should just explain that we agreed to share the case studies that we had developed but they do not necessarily reflect our final thoughts on the design of the programme. The development of our programmes will be affected by the deliberations that we have in this House and by ongoing discussions with stakeholders and providers. However, I hope that they are useful illustrations of how the proposals might work, and they were circulated with that in mind.
Perhaps I may return briefly to the issue of childcare, which I acknowledge is a matter of continuing concern for noble Lords. We are quite clear that it is the parent and the parent alone who can decide whether the services offered by a childcare provider are suitable for their child. Jobcentre Plus advisers will not be able to direct parents to a particular provider, even if that provider has vacancies that appear to meet the person’s requirements. However, if a parent claims that he or she is unable to source suitable childcare, then the adviser will need to ensure that these representations are reasonable. Therefore, if, for example, the parent simply makes an assumption that he or she will be unable to source suitable childcare, that will not pass the reasonableness test. To ensure that parents make reasonable efforts to identify options, parents who consider that they cannot comply with the conditions imposed on them because suitable childcare is not available will need to demonstrate to Jobcentre Plus that they have taken reasonable steps to secure such care. That could include contacting the children's information services, visiting local extended schools or Ofsted-registered childcare providers and identifying whether other informal care options are available to them. Jobcentre Plus advisers have good knowledge of childcare availability.
Lord Northbourne: I am so sorry to interrupt the noble Lord, but I did not entirely understand where all the things that he is saying come from. In what regulations or Act of Parliament are they to be found?
| Next Section | Back to Table of Contents | Lords Hansard Home Page |