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I appreciate that my worries are of a more general nature than just this Bill. None the less, I hope that I have related them to social security law more generally, as amended by this Bill, which after all is the Bill currently before the Committee. I beg to move.
Lord McKenzie of Luton: I thank the noble Lord, Lord Skelmersdale, for his amendments to Clauses 6 and 7. These clauses are closely connected to the provision made by Clause 3 for a new form of JSA to be paid to people in place of income support without paying them any less money or requiring them to meet the usual job-seeking conditions.
Clause 6 enables awards of income support or income-related ESA to be stopped where appropriate, and allows for a transitional allowance to be paid for a time and at an amount that can be prescribed by regulation if such arrangements are required. There are a small number of occasions when the benefit rates for income support, ESA and JSA are not the same and, in these circumstances, we need to ensure we have the necessary provisions to protect the benefit incomes of claimants as they migrate from one benefit to another as a result of these changes. Subsection (2)(c) provides that protection, and I do not believe that noble Lords would want us to reduce clarity in the Bill on the considerations that are to take place in the determination of a transitional allowance.
Clause 7 sets out the conditions which are required before a decision to abolish income support can be taken. Where these conditions exist, the Secretary of State can make an order which effectively switches off income support. It also allows him to make any transitional and consequential provisions that may be needed. Amendments 81 and 82 seek to ensure that an order made under Clause 7(4) could not be made to amend, repeal or revoke any provision or regulation made in any Act after the commencement of the Bill. I can stress again that the powers can be used only once alternative provision has been made for all income support recipients. Clauses 3 and 5 ensure that we have that provision in place. Clause 7(4) is necessary and important because it allows us to make workable transitional arrangements if the benefit rules change after this Bill is commenced.
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I hope that noble Lords will agree with me that such provision should be made. As I explained at the outset, in proposing to abolish income support we are not proposing that the people who get it should receive any less money or be subject to the requirements placed on people who are required to look for work. The intention is to simplify and streamline the system but not to make it any less sensitive to people’s needs. However, this provision future-proofs the legislation and will help ensure that any transitional or consequential provision made under Clause 7(4) is effective. On that basis I ask the noble Lord to withdraw his amendment.
Lord Skelmersdale: Of course I will, but I asked for how long the protection is to continue. What I did not say in moving the amendment and speaking to the other two, which I suppose that I should have done,
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Lord McKenzie of Luton: It is common practice when introducing social security changes to provide transitional protection—the noble Lord’s party when in government has done so previously—and to do it so that there are no losers at the point of change and that people do not see decreases in their benefit. How long protection will be needed for will depend on circumstances, which will obviously be set out in detail in due course. That is the normal approach to these matters.
Lord Skelmersdale: I will have to think about that response. In the mean time, however, I beg leave to withdraw the amendment.
79: Clause 6, page 12, line 45, at end insert—
“(7) In section 14 of the Welfare Reform Act 2007 (c. 5) (action plans in connection with work-focused interviews) for subsection (3) substitute—
“(3) Regulations under this section may, in particular, make provision for action plans which are provided to a person who is subject under section 13 to a requirement to undertake work-related activity to contain particulars of activity which if undertaken would enable the requirement to be met, provided that such particulars shall not include taking any medical treatment, including medication or psychological therapies.””
Baroness Meacher: It is clear that regulations making provision for action plans within the work-related activity requirements should not and would not include any requirement to accept medical treatment, whether medication or psychological therapies. The amendment is a re-drafting of an amendment tabled by Paul Rowen, MP, in the other place on Tuesday 24 February. However, the amendment is broader than the one debated in the other place and ensures that all claimants on ESA are covered by the safeguard. A second important difference between the two amendments is that this one does not place any restriction on what can be drawn up in the action plan. Instead, it removes the compulsory nature of any medical or health-related treatment in the action plan.
The reason for the changes to the amendment is important. Some medical treatment might help a claimant in his or her progression to work, and claimants may wish to include that treatment in their action plan. However, the important point is that this must always be a decision taken freely by the individual. Claimants must not be sanctioned for failing to carry it out. During the Committee debate in the other place, the Minister, Tony McNulty, MP, said,
- “we will never mandate any parent into any health intervention that is delivered by a health professional, including psychological therapies and the taking of medication”.—[Official Report, Commons, Welfare Reform Bill Committee, 24/2/09; col.129.]
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The principle of our amendment has thus been conceded by the Government.
Our concern is that the safeguard should be incorporated in the Bill. We have had many discussions in relation to various Bills about the importance of principles being in legislation, and we have a similar issue here. Although statements from Ministers giving assurances are always welcome, they do not, of course, have the strength or impact of the Bill itself. The wider legal system sets strict limits on compulsory medical treatment and provides significant safeguards for those who are compelled to take treatment in special circumstances. As someone who is very familiar with the Mental Health Act, I am aware of the strengths of those safeguards.
The Mental Health Act also has safeguards to protect the giving of consent by a patient to ensure that it is real and informed consent. There would be no such safeguards in the Bill. The giving of consent would be experienced as given under duress, I suggest. The Bill gives significantly wider powers to personal advisers. They will not be trained health professionals but could potentially be requiring a claimant to undertake specific activities to improve their health. As I have already indicated, this might include therapy programmes or medication. Such decisions surely should and must be decided between a person and their clinician. I hope that we are pushing at an open door here. As I indicated earlier, the Government have accepted the principle of the amendment. Most importantly, it will not cost the Government anything. I beg to move.
Baroness Thomas of Winchester: In the absence of my noble friend Lord Alderdice, whose name is on the amendment, I shall speak briefly in support of it. However, a lot of my words will be exactly the same as those used by the noble Baroness, Lady Meacher. I do not want to repeat them all. My speech also contains the phrase “we may be pushing at an open door”. The noble Baroness quoted the words of the Minister in the other place, so I shall not do so. However, the Government have made clear that activities to stabilise health conditions can be included as part of work-related activity, and hence a claimant might be subject to sanction if they are not undertaken. The worry of health professionals like my noble friend Lord Alderdice, who is a psychiatrist, is that the measures in the Bill have the potential to blur the boundaries of consent. While claimants might appear to consent to do particular activities, such as take certain medical treatment, it might not be entirely clear to them that they had a choice. Therefore, the taking of such medical treatment might be seen not as a voluntary decision but compulsory if the claimant wanted to go on receiving their full benefit entitlement.
One of the main worries of health professionals and others is, as my colleague the noble Baroness, Lady Meacher, said—I would like to call her my noble friend but I shall call her my noble colleague—that, whatever else a Jobcentre Plus personal adviser is, he or she is not a trained health professional, but could potentially be requiring a claimant to undertake specific activities to improve their health. This might extend to therapy programmes, medication regimes or to other activities such as exercise or weight management. If these
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Baroness Murphy: I, too, support the amendment. It is completely unethical for any doctor, nurse or clinical psychologist to engage in any treatment of a patient who has been coerced into care by the state, or indeed by anybody else unless they fall within the provisions of certain public health Acts—the Mental Health Act or certain parts of the Mental Capacity Act.
It is necessary not only to ensure that the person does not receive medication and specific treatments in a coerced manner, but that they should not be dictated to about the place that they should attend. There have been many discussions about this with regard to the Mental Health Act but it is clear that once you start dictating to a person the place they might attend to receive care and treatment, such as a day centre or a day hospital, you are near to coercing them into the programmes that are delivered at those places of care and treatment. It is almost impossible for the person to say no once they get there. This is an extremely important point that we argued over a great deal when we discussed the mental health legislation. It is utterly crucial that the individual should be willing and able to seek care and treatment, and that that care and treatment is delivered on a completely voluntary basis with no quid pro quo in terms of what they will get in return.
The Countess of Mar: I too support the amendment. The noble Lord has heard me carrying on enough about people with ME/CFS, but in some cases they have been told that it is a condition of their continuing to get benefit that they take a course of cognitive behaviour therapy and graded exercises. The NICE guidelines recommend CBT in certain instances for people with mild to moderate ME—I am using “ME” as a shortcut—but say that it has to be a joint decision between the medical practitioner and the patient, that it must be with the patient’s consent and that the cognitive behaviour therapy must be given by somebody who understands and has had training in ME. I have seen a medical assessor’s report where he recommended that a particular claimant had a course of CBT because there was nothing really wrong with him. That is not acceptable, and we need something more tightly on the books.
Lord Skelmersdale: I am not sure whether the noble Baroness, Lady Meacher, intended the amendment to be a precursor to our debates very shortly—perhaps not that shortly—on drug and alcohol abuse. However, I take the view that even if the amendment covers that situation, it is unintentional and she wants to stick to those people whom she mentioned. Drug abuse is obviously an important topic that we must and shall address fully. The amendment would mean that an action plan for work-related activity could not specify a requirement for the participant to do anything that would require him to take medication or treatment.
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None of us would rule out, however, the scenario in which a participant with a medical problem which hinders their return to work but is none the less treatable or even curable agrees—that is the important word—to seek medical help to overcome that problem.
Baroness Meacher: While a claimant is being interviewed and developing their action plan with the personal adviser there is no safeguard to make sure that, if they agree to some medical or other form of treatment, that it is informed and real consent. That is the issue that we are conscious of in the mental health field—that people in that field too need robust safeguards to make sure that they are not coerced into treatment. They are in a vulnerable position. In a personal adviser’s office, a person is also in a vulnerable position; they feel that they had better fit in with the requirements of the personal adviser or they may lose their benefit. The issue of consent is fundamental here.
Baroness Murphy: Will the noble Lord consider a straightforward example? A plumber with osteoarthritis of the knee can no longer work as a plumber because of deterioration, but can really be cured only by having a knee replacement. For all kinds of other reasons, he may have decided that a knee replacement is not in his best interests and does not want it. As I understand it, the noble Lord is suggesting that that should be discussed in an interview and that he should agree to have a knee replacement.
Lord Skelmersdale: No, of course I am not.
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Baroness Murphy: Perhaps the noble Lord would explain to me how that problem might be tackled as there is a real danger of getting to a position where one could be coerced—that is the word I would use. For a whole range of reasons, it might appear to an adviser that someone is being awkward and does not want to do that for a reason that the adviser would not find appropriate. I would like the noble Lord to explore that further.
Lord Skelmersdale: We are back to the training of advisers and the right way in which to ask such questions. The noble Baroness, Lady Meacher, looks as though she is about to jump down my throat again, as her glare normally precedes that activity. Perhaps I may be allowed to explain. A properly trained adviser would not go about it in the way in which the noble Baroness, Lady Murphy, suggests I might believe they should.
A properly trained adviser might say two things to the plumber with a bad knee. First, I hope he would say, “Have you considered getting a new knee?”, in which case there would be an answer such as, “Yes, I
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I do not think that these worries bear much weight. I shall say more about this when we get to the drugs and alcohol issue, as we shall shortly. I hope that the Minister will be able to reinforce what I have said about the proper training of the job adviser.
Baroness Crawley: I thank the noble Baronesses, Lady Meacher, Lady Murphy and Lady Thomas, for their amendment. I hope I can reassure them about our intentions in this area. The definition of work-related activity is drawn very widely. That is to provide as much flexibility as possible for claimants and advisers to agree the activities in a non-coercive atmosphere that will best support a return to work in their particular circumstances. Where an individual has a health condition that in itself is a barrier to that person returning to work, we believe that he or she should receive appropriate help and support to make a return to work possible. Many individuals will be keen to undertake medical treatment, such as counselling or physiotherapy, as their work-related activity.
The amendment would mean that these activities could not be recorded on the action plan as work-related activity, even where that was the wish of the claimant. We would not want to limit the scope of the provisions in that way. Every claimant should have the right to choose to take up medical treatment to meet his or her work-related activity requirement. However, I agree that claimants should not be directed to undergo medical treatment under the specific work-related activity provisions. I repeat: we do not agree that claimants should be directed to undertake medical treatment under the specific work-related activity provisions. This is consistent—
Baroness Meacher: If the Minister is clear, as she appears to be, that no claimant would be required to undertake medical or other kinds of treatment within this action plan, would she be willing to have this in the Bill, because only then would we have a clear safeguard that personal advisers would be aware of? As I said earlier, assurances are valuable, but why not have this in the Bill? This is a very important safeguard and is not just a matter of training, if I may say so. I should say that on the previous occasion I was looking anxious and shaking my head rather than glaring.
Baroness Crawley: If you are looking beyond the warm words of Ministers in Hansard, we will see the evidence that we have included this important safeguard in the draft ESA work-related activity regulations. I do not believe that when the amendment was put down those regulations were available to noble Lords. However, I believe that they have been circulated to
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I was asked some specific questions. The noble Baroness, Lady Meacher, asked what would happen if people changed their minds—again raising the coercion issue. If claimants want to undertake medical treatment, it will be made clear to them that they are free to change their mind at any time. It will never be required that they must continue to receive the treatment or take up new treatment.
The noble Baroness, Lady Murphy, asked whether we will require customers to attend a certain place where a medical intervention can take place. Under Clause 8, as regards ESA claimants, we will not require customers to undertake medical treatment or require them to attend a place of treatment, although we may require someone to go to an information session. The noble Baroness, Lady Murphy, talked about a plumber—
Baroness Meacher: Why was it felt important when we debated the Mental Health Bill that these crucial safeguards were included in the Mental Health Act while in this Bill it is regarded as okay to have them in regulations? I do not understand that because the principle is exactly the same in relation to human rights, which are what we are really talking about. To impose treatment against someone’s will is very serious; it is an assault. I ask the Minister to take this away and think about it in relation to the Mental Health Act.
Baroness Crawley: Absolutely. The noble Baroness makes a very strong point, and we will certainly take it away. We feel that we have gone as far as is necessary, but I do not disagree that she has made a strong point, and we will certainly look at it between now and Report.
Finally, the noble Baroness, Lady Murphy, used the example of the plumber. The adviser may well discuss other work-related activities. Could the plumber consider work that does not involve stress on his legs? Reskilling would be something to do with that.
Baroness Meacher: I thank the noble Baroness and other noble Lords for their helpful contributions to the debate. I also thank the Minister for her response and her willingness to take the matter away and consider it. I beg leave to withdraw the amendment.
Clause 7 : Abolition of income support
80: Clause 7, page 13, line 12, at end insert “following presentation of a report concerning income support.
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( ) An order may not be made under subsection (2) unless a draft statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament.”
Baroness Thomas of Winchester: I will also speak to Clause 7 in general. Clause 7 gives the Secretary of State the power to abolish income support and is a clause on which we have all received a great deal of representation from many groups, all expressing concern about what looks like the imminent abolition of income support. We understand the Government's purpose in putting this clause in the Bill. They say it is all about simplifying the benefits system and they confirm that the power to abolish income support will not be triggered until no one needs it. However, Governments come and Governments go. All we seek in this amendment is a modest but important proposal—a safeguard, really—for income support to be the subject of a report to be presented to Parliament before regulations to abolish income support are brought in under the affirmative procedure.
Income support is still available and is particularly taken up by lone parents, carers and women in the later stages of pregnancy. We are told that there is to be a new and detailed plan for the long-term reform of benefits available to carers, and we look forward to that. Perhaps the Minister can tell us when we can expect that; I do not think that this is the first time that he has been asked about it. We hope that any review of the benefits system in relation to carers will recognise the very important work that carers of all kinds do and the fact that their economic value to the country is probably incalculable. Moving carers from income support on to a modified JSA regime seems a very clumsy way of treating them and could deter some people from taking on unpaid caring duties, which in turn could damage family relationships. We must not forget that carers can get carer’s addition only if the person for whom they are caring gets certain benefits themselves. That is not always the case. Those benefits are attendance allowance, disability living allowance at the middle or highest rate for personal care, constant attendance allowance in some circumstances and, in others, war disablement pension.
It is not just voluntary groups that are concerned about this part of the Bill. The Government's own advisers, the Social Security Advisory Committee, thought the Government's proposals “ill-conceived and short-sighted”. We urge the Government to listen to all those voices expressing great concern that the power to abolish income support might be brought in before proper safeguards are in place for those who rely on it. I beg to move.
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