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Personal advisers will have to have regard to their customers' medical condition; it is not about not taking the condition into account appropriately so much as spotting it in the first instance. There is the risk that it has been overlooked, and that inappropriate actions have therefore been requested of somebody-that is the issue.
The role of the personal adviser will include taking into account whether the condition is likely to fluctuate, and the impact that that may have on the customer's ability to carry out the direction. They must, of course, have received adequate training to enable them to do that-we are back on training. It may help to reassure the noble Baroness if I outline the safeguards built into the system that will protect customers with fluctuating health conditions. We recognise that we are expecting more of our advisers with the new conditionality reforms, and we will work with our stakeholders to identify the additional learning and development that advisers will need to apply work-related activity.
Jobcentre Plus pathways advisers receive training on a range of mild-to-moderate health conditions. In provider-led pathways areas, advisers are also trained on a range of health conditions and work with a range of specialist organisations from which advisers can receive advice and support. Jobcentre Plus personal advisers are able to seek advice from specialist disability employment advisers and work psychologists with regard to customers with complex needs. If they feel it is appropriate, advisers may refer customers with complex conditions to DEAs and work psychologists for additional advice and support.
The work capability assessment has been designed to take better account of these fluctuating conditions. In the face-to-face assessment, the healthcare professional carrying out the WCA and the work-focused health-related assessment will also analyse an individual's functional capability over time. It is not a snapshot of a person's condition on the day of the assessment. During the early stages of their claim, an ESA customer will undergo a work-focused health-related assessment completed by a healthcare professional, and a report of that assessment will be produced and sent to the customer's personal adviser. It will flag up whether the customer's healthcare condition may fluctuate, and the impact that is likely to have on them.
I can assure noble Lords that the power to direct customers to a specific activity will only be used in a small minority of cases. Advisers will always encourage, persuade and support people into activity they feel is necessary, before considering issuing someone with a direction to undertake a specific activity. As stated in Clause 8, any direction to undertake an activity "must be reasonable" and have,
Hence, any direction to undertake an activity by the personal adviser must be appropriate to the customer's abilities and circumstances. That would include taking into account any fluctuating health condition that the customer may have. If for any reason the customer was directed into an activity which they felt was inappropriate, they could ask for the direction to be reconsidered and it would then be varied or revoked. If the customer does not comply with the requirement
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Questions were raised about the outcomes of the work capability assessment and how that is currently proceeding. Noble Lords may be aware that there were 195,000 new claims for ESA between October 2008 and February 2009, so it is early days as the system is just bedding in. Five per cent of claimants were assessed as suitable for the ESA support group and 11 per cent were assessed as suitable for the ESA work-related activity group. Thirty-six per cent were assessed as fit for work. As regards the remainder, either the assessment was not complete or the people have left the ESA and discontinued their claim.
In answer to the noble Baroness, Lady Meacher, we do not currently know the outcome of the WCA by impairment. The assessment is based on function not condition, so it is not straightforward to get an accurate diagnosis. We are examining the situation to see whether we can break down the WCA assessment results by condition and we are looking to make further announcements in the new year.
The noble Baroness, Lady Thomas, asked how many representations we had received-
Baroness Meacher: The noble Lord has indicated that I was right and that the assessments focus on capabilities rather than the condition and that therefore he does not have an analysis of the conditions. The worry is that if the focus of the assessments is on different capabilities for work rather than, say, on a person's schizophrenia, and if on the day the person appears to have all the capabilities, it will be easy to miss the fact that they are suffering from a fluctuating disorder. That is the essence of my concern.
Lord McKenzie of Luton: I think I understand that, but is it not the case that the assessment may be one of function but that it ought to take account of the fact that someone has a fluctuating condition? It is an understanding that the assessment is carried out by professionals. I do not have the skill to know how they do it, but they are trained to spot these things. Therefore, when they assess someone's functionality-a rather unfortunate term-it should reflect the fact that someone has a health condition, has a fluctuating condition and has a-
Baroness Thomas of Winchester: My Lords, what does "functionality" mean in this context?
Lord McKenzie of Luton: It is not categorising someone with a health condition by reference to that condition, but by reference to the impact of it on what they can do-their ability to walk and sit, their dexterity
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Ultimately, I would seek to reassure the noble Baroness that these are important issues and they should be taken into account in the processes and protections that are in place. We need to continue to be vigilant and to engage with stakeholders on it so that if the system is not working as it should, we will look to see what can be done to fix it. That is the best way forward on this.
5.30 pm
Baroness Meacher: I thank the Minister for his reply. I confess that I am not very reassured, because I fear that by the time people realise that the system is not working, mental health trusts up and down the country will be on their knees. Therefore, I ask the Minister to assure us that a piece of work will be undertaken to examine the relation between the assessments and whether they will effectively pick up on fluctuating disorders. It is alarming to think that the system might roll into effect without fully taking this into consideration.
Lord McKenzie of Luton: First, I was not suggesting that the system was not working. The import of what I was trying to say was that if it was not producing the right outcomes in individual cases we should know that and try to understand how the system has not coped with those individuals. On the other point-can we do work to try to understand better how it is impacting on people?-the answer is yes. It is under way, and I will undertake to find out precisely where that is and come back to the noble Baroness.
Baroness Meacher: I am most grateful for the Minister's response and his assurance that he will look into the impact on claimants with fluctuating conditions. On that basis, I am happy to withdraw the amendment.
Schedule 3 : Claimants dependent on drugs etc.
Baroness Meacher: My Lords, in moving Amendment 39, I shall speak also to Amendments 41, 46 and 48. I shall speak first to Amendments 39 and 46, the purpose of which is to delete from the Bill the requirement to take part in drug tests to ascertain whether there,
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As the Bill stands, these tests would be undertaken under the threat of benefit sanctions. The tests envisaged could involve providing a urine or blood sample, semen,
- "or any other tissue fluid or pubic hair ... a swab taken from any part of a person's genitals (including pubic hair) or from a person's body orifice other than the mouth".
Such legislation applying to citizens of this country who have committed no crime is in my view abhorrent. You might well ask why our soldiers landed on the beaches of Normandy. Indeed why did we fight the Second World War? Surely it was to protect the liberty of the individual against the power of the state. Compulsory drug testing outside the criminal justice system is in my view a breach of that national commitment and of everything this country fought for those many years ago.
These provisions are a potential breach of Article 8 of the European Convention on Human Rights and are certainly an infringement of civil liberties. I understand that the Drugs Act 2005 introduced drug testing on arrest, thus within the criminal justice system. Yet at that time the Joint Committee on Human Rights expressed its concerns about the potential breach of the convention. Here, we are talking about people who are simply seeking state financial support.
My second concern is that it is my understanding that no clinician will be willing to be involved in compulsory drug tests; they will not actually happen. Such tests would undermine any possibility of creating a good therapeutic relationship thereafter. As we have discussed, treatment depends on the client's engagement in that treatment. Trust between the doctor and the patient is absolutely paramount.
My other and quite different concern is that a test at a single point in time will not tell you anything about whether a person takes drugs regularly or merely occasionally. As indicated in the Bill, a series of tests would in fact be necessary, multiplying the assault and the problems that I have referred to.
Also, these tests will not indicate whether any drug-taking is hindering the person's capacity to work. I happen to know a number of people who take drugs on a fairly regular basis-one or two of them on a very regular basis-yet they work perfectly effectively. The fact is that it is possible. I have never done it myself, but I know others who do. All that the tests will tell you is that, at those points in time, the claimant had a particular substance in their blood. Such tests would therefore serve no purpose. My related point is that the paragraph as it stands is, in some sense, inaccurate. Drug tests will not, as paragraph 3 suggests, ascertain whether there has been any drug in the person's body, whether the drug is in their blood or urine at the time of the test or not.
Finally, drug tests can be inaccurate. They can pick up perfectly legitimate substances and identify them as being in the class of an illegal drug. For all these reasons, I sincerely hope that the Minister will be able to reconsider paragraph 3 and agree to its removal from the Bill. I beg to move.
The Deputy Speaker (Baroness Gibson of Market Rasen): Amendment proposed: on page 72, line 14, leave out from beginning to end of line 10 on page 73.
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Baroness Meacher: My Lords, these amendments are all linked. Two relate to drug tests and there are two others, so I think I now need to introduce my other two amendments. I will speak now to Amendments 41 and 48.
Baroness Meacher: I am sorry; I do not know what the best way forward is. This is beyond my experience. Shall I continue?
Baroness Morris of Bolton: My Lords, the noble Baroness will have to move the other amendments in their place in the Marshalled List.
Lord Taylor of Holbeach: My Lords, I think the amendment has been moved and the decision needs to be determined by the House.
Baroness Meacher: My Lords, can I just move Amendments 39 and 46, and ungroup the other two and debate them subsequently?
Baroness Crawley: My Lords, the noble Baroness may not move them but she may speak to them.
Lord McKenzie of Luton: My Lords, if it will help, as I understand the position, the noble Baroness has moved Amendment 39. Therefore, we need to debate it and we can pick up the other amendments subsequently.
The procedure is a little tricky because I have a statement which I need to read verbatim. It picks up the broader issues but since we are, I think, debating Amendment 39 and related matters, that is what I will do. I thank the noble Baroness for tabling Amendment 39 and, indeed, Amendment 46, which would remove from Schedule 3 the provisions that could require claimants of jobseeker's allowance and employment and support allowance to undergo a drug test.
Amendments 41 and 48, which we have yet to debate officially, remove the requirement to comply with a rehabilitation plan and the requirement to submit to treatment. Instead, they require a claimant to attend an assessment for drug treatment. Schedule 3 allows for the introduction of a new regime, which will provide personalised, integrated support to help drug users claiming JSA or ESA to overcome their drug dependence and gain employment. Regulations will initially provide that this applies to heroin and crack cocaine users. Extension to other drugs and alcohol could be considered later. Since our debate in Grand Committee we have listened to the concerns that were expressed and decided that we will keep drug testing in the Bill, but will further limit the circumstances in which it will apply.
The Bill already provides that a person can be required to undergo a drugs test only where they fail to attend a substance-related assessment without good cause. However, as a matter of policy, they will not be used in cases where claimants are already in drug treatment, have self-identified their drug misuse or were referred to a substance-related assessment on the
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I appreciate that the noble Baroness and other noble Lords have strong concerns about mandatory rehabilitation plans and the provisions which require a claimant to submit to treatment. We debated these provisions at length in Grand Committee. We have listened to the specific issues that were raised and respect the strength of feeling displayed on these matters. Therefore, I hope that I can provide some reassurances. We have never intended that paragraph 6 would be used to force people into specific forms of treatment. Under paragraphs 6(4) and 6(5), it is only possible to require a claimant to attend an institution or treatment centre for treatment under the direction of a professional. However, we have brought forward an amendment to Clause 9, which makes it clear on the face of the Bill that regulations must provide that a person is not required to submit to medical treatment. I hope this change will allow your Lordships to be more comfortable about the requirement to comply with a rehabilitation plan.
As with any type of health treatment, the patient will need to give informed consent before any medical treatment could be undertaken. If they give such consent, it will go into their rehabilitation plan only if they agree to it being there. So if they decide not to take up medical treatment, that will be accepted. However, we would still require them to engage. This could be in the form of educational sessions, self-esteem counselling and confidence-building. Sanctions would arise if the claimant refused to engage at all. It is important that those identified as problem drug users take the first steps on the journey to overcome their addiction. The Government will ensure that support and treatment are available.
All drug users with an identified dependency on, or a propensity to misuse, drugs will be required to follow the rehabilitation plan where this is a factor affecting their ability to obtain or remain in work, and their condition requires and is susceptible to treatment. If they fail to do so without good cause, they will be subject to benefit sanctions. If rehabilitation plans were made optional, as also suggested by these amendments, it is possible that those furthest from the labour market will be those who choose not to have one. This would mean that they would lose the opportunity to obtain other personalised support to overcome barriers to work. This would include support around housing, debt, and employment skills delivered by providers who are experienced in dealing with difficulties faced by problem drug users. Without a rehabilitation
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Regulations around rehabilitation plans will be introduced by regulations subject to the affirmative parliamentary procedure, so both Houses will have an opportunity to consider and debate them. The regulations will include safeguards to ensure that the requirements are proportionate to our aims and compatible with the European Convention on Human Rights.
However, I sense from our discussions today-I am sure that the noble Baroness will advance other arguments in this regard-that these reassurances may not be sufficient, and that a regime which involves coercion into any form of treatment or rehabilitation plan remains of deep concern. I am, therefore, willing to take on board the thrust of the amendment and, if they are moved, her other amendments, and will consider between now and Third Reading how we can reflect what they try to achieve. With those reassurances, I hope that the noble Baroness will not press her amendments. I do not want to end up in a situation where process precludes us from coming back to this at Third Reading. I do not propose to move the amendments in my name in the next group and shall come back with them at Third Reading.
5.45 pm
Baroness Meacher: I am grateful for the Minister's response, although he will know that I am bitterly disappointed with the response that he has necessarily given on drug testing. I will not seek a Division of the House this evening, but if we cannot achieve the elimination of paragraph 3 of new Schedule A1 and paragraph 6 of new Schedule 1A in time for Third Reading, then I shall seek the support of all sides of the House to eliminate compulsory drug testing for people dependent on drugs. That is all I wish to say about Amendments 39 and 48. I hope that I shall have an opportunity to address subsequent amendments. I beg leave to withdraw the amendment.
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