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Lord McKenzie of Luton: We are talking partly about administrative processes. We are talking about regulations, some of which already exist in jobseekers’ employment and support allowance. We are talking about the development of new regulations and guidance for the new provisions in the Bill. That is where they will be addressed. I see the noble Lord, Lord Kirkwood, ready to spring to his feet.
Lord Kirkwood of Kirkhope: I am grateful to the Minister because he is addressing some of the real difficulties we were struggling with on day one in the Committee, and I appreciate his attempt. I, too, would like reassurance about where exactly that guidance will go. Of course it can go in guidance to staff in the contractors and in Jobcentre Plus who are dealing with it, but it needs to go to advisers as well. It would be better if that language was reflected in the regulations.
Lord McKenzie of Luton: To clarify with a helpful note from behind me, the regulations are currently provided, and will be provided for new regulations, under the Jobseekers Act 1995 and the Welfare Reform Act. That is the basis on which the regulations will be developed. Of course, the guidance that will flow from that will be available to Jobcentre Plus advisers. I shall come on to training of Jobcentre Plus advisers, because I know that that is another issue that people feel strongly about. I hope that I have put the provisions on childcare in context, with who has the right to do what and the reasonableness test.
Baroness Afshar: I am very grateful to the Minister for the assurances given on childcare provisions. In the second case given of Becky Jones, who finally found a provision that suited her, were she to object to the third possibility, would she still be considered to have reasonable rights? What would happen to her at that stage? I ask that especially as we are coming across nurseries such as the one in Plymouth, which has had to be closed because of the character of the carer. Where does reasonableness stop and unreasonableness start?
Lord McKenzie of Luton: The noble Baroness presses me on a point on which it is difficult to be specific. I am sure that she would acknowledge that it will inevitably depend on the individual circumstances of the case. If a parent took up available provision—perhaps they had been alerted to it by Jobcentre Plus—but it was found not to be satisfactory and the parent wanted to withdraw from the provision, if there was good cause for that and the parent could demonstrate that that was a reasonable decision in the circumstances, that could be persuasive with the decision-maker. If it were not, there is still a second right of appeal if a sanction were to be applied.
The Countess of Mar: I am sorry to interrupt the noble Lord, but I am in some difficulty. He said over and over again that the final decision on childcare rests with the mother. He has not made any qualification to that. He has not said “after three or four choices”; he has said it bluntly: “childcare rests with the mother”. Please can he tell us: what is the position?
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Lord McKenzie of Luton: I had hoped that I had been as clear as it was possible to be. Let me try again. It is for the parent, and the parent alone, to decide whether the services offered by any particular childcare provider are suitable for their child. It is the parent’s choice. Jobcentre Plus or an external provider cannot force a parent to send their child to any particular provision, but if there is a good provision in an area that is available to a parent, if a parent seeks to argue the lack of appropriate childcare as a reason for not carrying out a direction, there has to be a process for Jobcentre Plus or the decision-maker asking, “Was that reasonable in all circumstances?”. But neither the decision-maker nor the Jobcentre Plus adviser can say, “You must send your child to this particular provision”. We know that lone parents in particular are keen to access the labour market and want to use the good provision that is available. As we discussed on Tuesday, there may be some who are adamant that they will not use any form of provision as a means of not complying with the Bill and existing welfare legislation. But in the end this is about not only rights but responsibilities as well. That is the thrust of the legislation.
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Lord Northbourne: Let me follow up this issue because it is tremendously important. The parent says, “I cannot find any childcare”. The jobcentre says, “Oh yes you can. So and so and so and so provide it”. The parent says, “I don’t like them and I will not go to those places”. What happens next? Does the jobcentre issue a direction that the child has to be sent to one of them or will the parent be fined for not using them? This is an important point.
Lord McKenzie of Luton: It depends on which benefit we are talking about, but the process would be engagement at the start of the claim and an action plan that is agreed, if we are considering jobseeker’s allowance, between the Jobcentre Plus adviser and the individual. What might flow from that at some point during the course of the programme would be a direction by Jobcentre Plus if an individual has failed to attend a work-focused interview or has not taken up an activity which they were mandated to do. The individual would be given an opportunity to say that they had good cause for not complying with the direction. The information is then passed to a decision-maker within Jobcentre Plus and that decision-maker would decide whether a sanction is to be applied to the individual. If the sanction is applied, the individual has an opportunity to appeal against it.
That is the process, but along the way there are opportunities for the individual if the original action plan and the direction that flowed from it was inappropriate because of changes in circumstances to do with childcare, travel arrangements or perhaps health issues. Opportunities are provided to revisit the issues along the way. But if someone goes through the whole process, ultimately a decision-maker would apply a sanction subject to hardship provisions which we will come on to in due course.
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Baroness Hollis of Heigham: I apologise to my noble friend because we are all interrupting his speech, but this is a really vital point. Most of the other considerations with which sanctions are quite properly being aligned are things that are relatively objective to measure and judge. They concern reasonable and unreasonable distances to travel, the level of physical health, questions such as whether the interview will be cut across by a hospital appointment or a caring responsibility for an elderly person. It is clear that decisions cannot simply be voluntary because if that is the case, some of the hardest-to-reach people who could most benefit from being progressed to work would never be exposed to it. But the problem with childcare, as all who have had to juggle it with our professional lives will know, is that it is often a subjective judgment: will my child be happy and thrive in these circumstances? Will they relate to this person or not? Is my child particularly clingy at the moment because, say, Daddy’s work has altered or another baby has arrived? I can say from my own experience that my childcare arrangements had to be changed numerous times. Had I been under this sort of regime, I would have worried whether someone who had not had children would appreciate the essential need to match the mother’s judgment of where the children will thrive and encouraging that mother back to work. I find that hard to work out. Clearly, the lone parent cannot say, “None of this works; I’m determined to stay at home; frankly, sod off”, as that is not a way in which we can make the legislation work.
In this measure more than in anything I am aware of, there is a grey area of good faith, of subjective judgment in which there may be no meeting of minds between the personal adviser and the mother. I want to know how we can take this forward. I find it very difficult indeed. I hope it will be a tiny problem. I daresay that many parents may be unreasonable and, time and again, I have met parents who say, “I’m not going to leave my child with strangers; I will feel guilty about going back to work; I will not hold the job down; I will leave at the first possible opportunity”. If we are in that type of culture, we are in for problems. Perhaps my noble friend can help further about how we can square the circle, as it is difficult. I do not think that any of us has the right answer.
The Countess of Mar: Before the noble Lord responds to the noble Baroness, Lady Hollis, perhaps I can say that there are times when parents choose to keep their children at home; for example, they are allowed to educate their children at home. It may be that a mother has a really strong conscientious objection to her child being put into a nursery. What is the position then?
Lord McKenzie of Luton: I say to my noble friend Lady Hollis, who, as ever, expresses the dilemma very well and very clearly, that the regulations which will flow, whether or not they are embedded in whole or in part in the Bill, will set out non-exhaustive circumstances. At the moment there is, and will continue to be, flexibility for the decision-maker to take account of considerations which are not specified in the regulations.
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Lord Kirkwood of Kirkhope: The Minister is being very helpful. I agree with the noble Baroness, Lady Hollis, that it is evident that you cannot give a parent a veto without driving a coach and horses through the legislation. The language used by the Minister was much more positive today than previously but I wonder whether he would undertake to think about this. Clause 1 is an employment programme and this is a broader problem which goes across all benefits as regards childcare provision. Would the department be able to track the sanctions referrals which flowed directly from a challenge about childcare in the early stages of the introduction of this legislation, whenever it is introduced, so that over a period of time Parliament could be advised subsequently whether this was the extent of the problem which some of us think it might be? Some 800,000 sanctions were dished out in the year to August 2008, which is a huge number. That is likely to increase because of this legislation. Some reassurance would be afforded to colleagues if there were some departmental research on that subject which could be reported back to Parliament so that we can look at it again as I suspect that there may be another welfare reform Bill along quite soon and that would give us a chance to address the matter again.
Lord Skelmersdale: I get the impression that there is a hidden agenda here. The Bill and regulations rely on the good sense and training of the individual personal adviser. I rather wonder whether some of the worries expressed are not perhaps suspicions about the training of that personal adviser. Whether or not that is fair—and I have an amendment a little later that tries to elucidate the point—it is a general worry around the Committee.
Lord Rix:My later amendments, Amendments 54, 88 and 92, also address the worries about people receiving training to look after people with learning disability.
The Countess of Mar: As indeed do my Amendments 55, 90 and 93.
The Deputy Chairman of Committees (Baroness Fookes): I think that we are dealing with just one amendment now.
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Lord McKenzie of Luton: Perhaps I may deal with the amendments in reverse order. I say to the noble Lords, Lord Rix and Lord Skelmersdale, and the noble Countess, Lady Mar, that training issues are of course important. They have to be addressed, and we will shortly be having a full debate on them. That applies particularly to advisers recognising people with mental health conditions, learning disabilities and fluctuating conditions. I know that that is a longstanding and challenging issue.
In response to the inquiry from the noble Lord, Lord Kirkwood, it is intended that these pilots or pathfinders will be fully evaluated. I certainly see part of the evaluation covering the extent to which sanctions may flow from them and the circumstances in which that will happen. In response to the noble Countess, Lady Mar, and the issue of lone parents of younger children being able to choose to stay at home, let me be clear again—they can. Nothing in the Bill requires lone parents to look for work if their youngest child is younger than seven. The “work for your benefit” provisions are for those subject to the full JSA conditionality, which eventually will involve lone parents where the youngest child is as young as seven. We have not reached that yet. People in the progression-to-work group cannot be directed to work under those processes. If my memory serves me right, I think that good cause would certainly cover issues around religious objections to requirements.
We have spent some time on this amendment but it is a very important one. Perhaps I may pick up on issues around mental health. I think it was the noble Lord, Lord Ramsbotham, who said he thought that there was official denial of these issues. There has been huge effort across government to examine mental health issues, and I would assert that some progress has been made. There is certainly more to be done. As the noble Lord is probably aware, a cross-government strategy is being drawn up, headed by Dame Carol Black, to look at employment and mental health. There has been progress in Jobcentre Plus, with mental health co-ordinators being embedded in the Jobcentre Plus districts. There have also been developments in IAPT—improved access to psychological therapies—with employment advisers being embedded in that approach as well. There was a recent announcement by the former Secretary of State, James Purnell, about the programmes that are known to work for those with serious mental health conditions. The employment of people in that category has not proved good and that will be evaluated, focusing particularly on some of the Sainsbury centre proposals and experience around placing people and training them, rather than training them and then seeking to place them. I recall that there are also issues about engaging with people who come through the Prison Service as well, though I do not have the detail at my fingertips.
The Government are serious about and focused on this issue. It is certainly an important issue, and certainly more progress needs to be made. Much rests on the training that Jobcentre Plus staff receive. We will have an opportunity fully to debate that in due course.
Lord Ramsbotham: I am very grateful to the Minister for that explanation. My reference to the culture of disbelief was focused not so much on mental health as
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Lord McKenzie of Luton: I am grateful for that intervention. I would like to stress one other point. In this process, it is not the adviser who makes decisions on sanctions but the decision-maker. Therefore, there are training issues relating to advisers and the approach that they take, but there are also training issues for decision-makers.
I hope that with that rather extensive consideration of a very important matter, the noble Baroness will feel able to withdraw her amendment, at least on this occasion. I take seriously the thrust of the comments about the potential benefits of having something more specific in the Bill.
Baroness Meacher: I thank all noble Lords for their contributions to the debate. It has been incredibly lively and helpful. In that regard, I thank the Minister for the number of undertakings that he gave during his response. In particular, I was very grateful for his assurance about the wording of regulations—that is, that the Secretary of State must or shall take account of the definition of good cause. That is a tremendous concession, if I can call it that.
I was also very grateful for the Minister’s assurance to the Committee—perhaps it is a reality anyway—that people with mental health problems will receive a home visit before any sanction is applied. That is incredibly important and valuable for an awful lot of people. I am also pleased that the Minister has undertaken to look at the possibility of being more specific in the Bill on the definition of “good cause”. Of course, that is the whole point of the amendment, so it is a tremendous step forward and I am very grateful for that. I hope that, as well as trying to achieve it, he will be able to follow it through and actually achieve it.
Finally, the Minister’s assurance concerning a parent’s right to make a decision about specific childcare provision was also very good and helpful, and it will reassure parents up and down the country. That was a remarkably positive response to the debate and I thank him very much. I beg leave to withdraw the amendment.
Lord Skelmersdale: The two amendments in this group constitute what I hope will be a fairly quick probe. First, I seek information on sanctions. Subsection (6) seems to be a repetition of the order that I mentioned in the debate on the previous amendment. Six months for a renegade participant to be without any means of support to live is a very long time. I accept two things. The first is that hardship payments are available, although
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I also accept that the 26-week period is the ultimate sanction and that the participant would have to have ignored the personal adviser’s requests on several occasions for it to operate, but how many occasions constitute “several”? Does the Minister envisage that anyone will get to this point of having very little to live on for 26 weeks? Indeed, as this penalty is already on the statute book, can he tell me whether, and when, the full 26-week sanction has ever been invoked? Does he have any case studies, or was the original objective to make the sanction so severe that it was expected never to be needed? I hope that the latter is the case.
Amendment 14 seeks to leave out lines 34 to 40 of subsection (8). The notes on Clauses say that the purpose of subsections (8) and (9) is to allow participants who are subject to a sanction to receive hardship payments. However, subsection (8) is unclear on this. It says that JSA may be payable. That is not exactly clear. The Grand Committee will note, however, that subsection (9) is much less specific. It says in paragraph (b) that the payment will be,
However, it may not be paid at all, so I am getting more and more confused about this. I cannot see that these two subsections of new Section 17A gel in the least. I would be grateful, therefore, if the Minister would be more explicit than the somewhat inexplicit Explanatory Notes. I beg to move.
Lord McKenzie of Luton: I acknowledge that this is a probing amendment. I am grateful for the opportunity of developing the issues around sanctions and hardship. However, the amendments as they stand would dilute the powers that we have to sanction individual claimants in “work for your benefit”, and to provide hardship payments for them if we do so.
By applying a maximum of a 13-week sanction we would be applying a potentially weaker sanction to “work for your benefit” than we would to the Flexible New Deal. This would significantly undermine the programme. Part of the rationale for the new jobseekers regime, of which the Flexible New Deal and “work for your benefit” are part, is that conditionality increases over time, as does the support underpinning that conditionality. This is absolutely the right approach. Mandatory programmes are far more effective in engaging claimants than voluntary ones, and engagement becomes even more vital as claimants remain on benefit for long periods.
Sanctions are an essential part of any mandatory system. A mandatory programme without a sanction to back it up is not a mandatory scheme at all. Sanctions should be seen in this light, as an aid to engaging those who need support most, not punishing them. Of course there is a very easy way to avoid being sanctioned in the first place, which is to engage with the programme. That brings us to the nature of the sanction. We intend in “work for your benefit” to replicate existing sanctions provision for employment
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I know that there have been concerns that a 26-week sanction is too long and that the fixed nature of the sanction means that there is no incentive for a claimant to re-engage with the support on offer. This is a genuine concern that in some respects we share, and we will look at ways that we can lift a 26-week sanction part-way through if the claimant re-engages with the “work for your benefit” programme. However, we cannot and should not shy away from the principle that claimants have a responsibility to take steps to get back to work, and that as the length of the claim progresses they should be doing more to achieve that aim.
It may also be helpful for me to confirm that all provisions relating to good cause and to appeals will still apply in “work for your benefit” in the same way that they do now, as we have just discussed. This is also the case with hardship provision, which we will carry forward into the new programme. The rationale for hardship payments is to ensure that where a vulnerable jobseeker is sanctioned, they, and in some cases their dependants, are not made destitute. Hardship payments provide protection for claimants with children who rely on benefit income to support them. It would, after all, be wrong to penalise children for the failures of their parents.
Hardship payments are paid at various rates depending on circumstances, typically around 60 per cent of the normal personal allowance rate. The only way for a claimant to get the full benefit rate is to avoid a benefit sanction in the first place and to take up the support on offer. That is the right thing to do. We would not accept a system where parents or those with mental health conditions were not subject to any form of sanction; that is the essence of a passive welfare state that every major economy has now rejected. These amendments would create real doubt about our ability to run a hardship system. I hope that this gives the reassurance the noble Lord is looking for.
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