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What about the others? Will everyone be entitled to ask for a reassessment at the end of the year or only those with deteriorating conditions? For example, what about people who have had quite severe strokes? Their condition may not be deteriorating but they may be a very long way from the jobs market although that will be their eventual destination. If reassessments are to be allowed, at what point will people be asked to be reassessed? If it is too near the one-year cut-off point, I can envisage such a backlog that it may be many months before the reassessment is carried out.

Is the answer Amendment 38 tabled by the noble Lord, Lord Patel, to allow two years in the WRAG instead of one-another arbitrary time limit? I understand that this would be prohibitively expensive. The figure of £1 billion over the next few years has been mentioned. If this amendment is successful, the House of Commons will almost certainly claim financial privilege, which will mean that this House cannot even debate it again. A vote for Amendment 38 might lead to ping-pong, if it were to be won, but only to ping, not to pong. It would therefore be a merely Pyrrhic victory as the amendment would not go any further.

The work capability assessment is at the heart of this debate, and Professor Harrington's reviews of it are most welcome and instructive. He advises patience,

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saying that the changes he has asked for and which the Government have accepted are taking time to bed down. I quite understand that, which is why I am so opposed to what I still wish to call the retrospective nature of this part of the Bill, even if strictly speaking it is not retrospective as it is not actually clawing money back from people. However, stopping someone's claim the minute the ink is dry on the statute book, having warned them in a round robin letter, is pretty sharp practice. The Government maintain that people have been given enough notice of the April 2012 cut-off date because they could have read about the proposal in the small print of the comprehensive spending review in October 2010. How incredible is that?

6.15 pm

If the Government were to wait, even if only for six months rather than a year, it might give Professor Harrington's recommendations for improving the WCA a chance of being implemented consistently around the country; if six months would be too expensive, what about three months? I am sorry that the Government are including the 13-week assessment phase in the year because that is paid at the lower JSA rate rather than the WRAG rate. If they ignored this phase, it would at least give people 15 months instead of 12 months, and again those three months could be useful in concentrating minds on improving the work capability assessment. As the noble Lord, Lord Patel, said, we have all received the CAB report, which is pretty damning about the work capability assessment right now.

One of Professor Harrington's recommendations is that DWP decision-makers should look independently at the Atos Healthcare assessments, in particular the person's medical reports, and then make their own minds up; in other words, they should not just rubber-stamp the Atos recommendation. I wonder whether that now happens routinely across the country and whether and how it is being monitored. The Government should pull out all the stops as a matter of urgency to make sure that the Harrington review proposals are being implemented in full throughout the country as the payback for bringing in this policy so soon. Does my noble friend the Minister know whether this is happening?

I believe that the number of appeals about the WCA is beginning to drop, but I fear that there will be many more appeals when this policy is brought in from people wanting to migrate from the WRAG to the support group. Even the impact assessment reckons that 50 per cent of those affected by time-limiting will appeal, of which 20 per cent might be successful.

Many of us are uneasy about the whole policy because of the unintended consequences that we expect to flow. Low-paid partners may be tempted to give up work so that means-tested ESA can be claimed, while the category with the highest claimants-those with mental health conditions-could give up in complete despair. Those with modest savings will wonder why they are being penalised if they are saving for care in their old age. However, I reiterate that voting for Amendment 38 might make us all feel better but it could be seen as a rather cynical move because we know that it will not stick and it might be reported as a

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great victory. I would rather vote for a more modest amendment such as Amendment 40A, which leaves out the assessment phase, which has more of a chance of success. However, I shall listen to my noble friend's winding-up speech with great care.

Baroness Lister of Burtersett: My Lords, I want to make a very brief point in support of the amendments. The Government say that time-limiting ESA is not based on an estimate of a typical recovery time-it is not evidence-based-but on the principle that these are people who have other means of financial support, which of course is exactly the same principle that the Minister raised earlier to justify removing the ESA youth condition.

This other support is of course income-related ESA, and the Government point out that 60 per cent of people affected will be able to claim it. That means that 40 per cent of those affected-roughly one-third of men and nearly half of women-will not be able to. We are talking here about an erosion of their financial autonomy. Many noble Lords have received many letters from people saying that they are shocked and anxious at the implications of this.

An article in today's Guardian summed up very well what this erosion of financial autonomy means. This quotation is from a man who is going to be affected by this:

"The satisfaction of being able to contribute to the family budget with a benefit that has been earned and paid for will be removed. The last shred of dignity will be stripped from people who have already lost a great deal in life and who may already feel a burden on those who care for them".

Disabled people should never feel that they are a burden on those who care for them, and it is terrible that they are being made to feel that way by this clause.

Baroness Hollis of Heigham: I shall be very brief and respond, if I may, to the noble Baroness, Lady Thomas of Winchester, who over the years has been a doughty champion for disabled people. However, I have never before heard her make a speech based on the sole proposition that because the House of Commons might reject an amendment, it should not be moved in this House. That is not a sound base for policy, as the noble Baroness will accept. That does not mean to say that at Third Reading there may not be compromise or fallback amendments and so on, but this House has never walked away from its proper duty to scrutinise because it feels that the other place may not accept what we are doing. I hope that the noble Baroness will not run up that sort of argument again.

Baroness Thomas of Winchester: My Lords, I shall respond to that. What I said was that noble Lords may think that we will go into ping-pong: that the House of Commons will say one thing and we can come back to the debate and have a dialogue. That does not happen with financial privilege. There are many new Peers in the House who will not realise that financial privilege is imposed by the Commons, which it may be-it may not, but it probably will be because this is going to cost around £1 billion over the next few years. People outside will be given a false sense that we have done

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something and scored a great victory by defeating the Government and so everything will be all right. No, it will not be. That is what worries me. This is not like ordinary ping-pong; it is quite different.

Baroness Hollis of Heigham: My Lords, almost everything passed in this House has financial implications. The House of Commons is entitled to and regularly will dismiss every amendment passed in this House under financial privilege. There is nothing new in that. We do indeed then go into ping-pong because this House will offer an alternative amendment for the House of Commons to consider. Should we reach that situation, some of the fallback amendments mentioned by the noble Baroness could then be considered.

Lord Blencathra: My Lords, it is with some trepidation that I intervene briefly in this debate in view of the learned comments that one has heard from both sides. I seldom contribute to debates of this nature because it is outside my areas of expertise, but I am prompted to do so as the result of a speech made yesterday. I heard the leader of the Opposition say that,

He went on to say that:

"When someone wins, someone else loses".

I have looked briefly at the amendments before your Lordships' House today and I had not intended to say anything on them because I knew that they had considerable spending implications, but I am tempted to speak out because of what the leader of the Opposition said yesterday.

The noble Lord, Lord Patel, has made a powerful and compelling speech, and it would be easy for me and no doubt for other noble Lords to vote for his amendment and feel morally good. But the sting lay at the tail end of his remarks when he said, I think, "Of course, this could have some enormous cost implications", and then he came up with not what I would say is a formula but a suggestion, which I must admit I did not quite understand, about how one could try to save on some of those considerable costs. However, I am informed that his amendment as it stands has serious cost implications. I believe that it would cost up to £200 million next year, maybe £400 million the year after and again the year after that. I hope that my noble friend the Minister has the correct figures, but I believe that it will be around £1 billion of expenditure over the next three years. The House needs to know exactly what those figures are.

Perhaps I may turn to the Opposition and say this. If the Opposition are tempted to support this amendment -I hope that I am not being too political here-I hope, in view of what the leader of the Opposition said yesterday, that they will spell out where the money is to come from. At this stage I am not concerned about whether the Commons will reject the amendment or whether there will be ping-pong, although that is a valid debate to have in due course, but it is incumbent on the Opposition or on those who are arguing for this amendment to say where the £1 billion, if indeed it is £1 billion, is to come from. Is to come from higher

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taxation or from a cut in public spending somewhere else? Is it to come from increased government borrowing? Someone somewhere will have to pay for this.

Lord Boswell of Aynho: I am most grateful to my noble friend for allowing me to intervene. Having listened to the debate this afternoon, does he not acknowledge that whereas the previous amendment, which was supported by noble Lords, was in comparative terms a relatively small matter of cost, this is of a different level and magnitude of costs-at least 10 times as great? Whatever might have been said about the previous amendment being comparatively trivial, this could not be possibly be so described.

Lord Blencathra: My noble friend is correct. The last amendment would cost around £70 million, and no doubt the Government will say that that is going to hurt and that the money will have to come from somewhere. But if the costs of this amendment are £700 million, £800 million or £1 billion, as I have read somewhere, we need to know that before we go into the Lobbies in support of the powerful speech made by the noble Lord, Lord Patel, in which he spelt out some of the difficulties that a large number of people will face if this cut is made.

I conclude with these remarks. It is easy to feel morally good because we have done something to help those who will be affected, but we have to bear in mind the others who will lose £1 billion of expenditure, or wherever that £1 billion will come from.

Lord Wigley: My Lords, we went into this matter in considerable detail in Committee and the Minister withstood the pressure at that point on the basis of it being so expensive. Perhaps I may repeat the point made from several different directions in Committee. If it is indeed £200 million plus £400 million plus £400 million, that is money that is coming off vulnerable disabled people. There are other priorities which I believe are not as pressing as the needs of these people.

It has been said that some will lose £90-odd a week. That is a considerable amount of money for those who are dependent on help such as this. If they are indeed fit to work and can hold down a job, they would earn considerably more than that, so there is an incentive to go to work, but the disability itself might well prevent them being able to take up opportunities, and indeed the psychological effect of the uncertainty of waiting out the 12-month period might add to the lesser likelihood of their being able to work. In a civilised society it is not the disabled people at the end of the queue who should be bailing out successive Governments for the economic mess that we are in. If we need to share it out, as the noble Lord said a moment ago, there is such a thing as taxation, which shares out the burden more equally. Why put the burden on the shoulders of the most vulnerable in our society?

Lord May of Oxford: My Lords, I suspect that others might share my feeling that in some of the last exchanges the discussion has taken on a curious additional aspect. The exchange about whether whatever we do will ultimately be nullified by the Parliament Act speaks

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to me not as an argument for doing one thing or another but in support of the distinctive character of this Chamber. Particularly from the Cross Benches, the Chamber brings to debates that in the lower House would be basically political in nature a degree of expertise and knowledge of the impact on the ground of the things that we do. That is often missing, particularly in the upper chambers of parliaments in other countries with which I am familiar. I shall mention the acquaintance with uncomfortable facts, and again we have here an echo of what we heard a moment ago.

I have every sympathy for the Minister, who has quite properly to tackle questions of fiscal responsibility. At the same time, powerful points are being made about individuals and how this is going to play out in the system by people who really know it. That is something distinctive which we add to the debate, and I hope that it is taken into account when things go back to the Commons.

Lord McKenzie of Luton: My Lords, we support each of the amendments tabled in the name of the noble Lord, Lord Patel. As we have heard, the first would amend the Bill's 365-day limit on the contributory employment and support allowance and proposes to replace that with an order-making power for setting a limit, but with the proviso that it should be not less than two years. The proposal that any limit should be set by order opens up the opportunity, sadly missed in the Government's formulation, for any time limit to be evidence based. The 365-day limit currently in the Bill is supported by scant evidence, apart from some references to "international practice", which did not bear scrutiny in Committee.

6.30 pm

What the Government are proposing is fundamentally unfair. The unfairness is compounded by issues to which we will come later; for example, the inclusion of the assessment phase in the time and the counting-in of contributory benefits already received when the legislation enters into force.

As the noble Lord, Lord Patel, said, to be entitled to employment and support allowance, an individual must be assessed as having limited capability for work and/or limited capability for work-related activity; that is, they are not fit for work. Contributory ESA is a non-means-tested benefit and is earned by having a national insurance contribution record, some of which requires payment and some of which is credited in. It demonstrates a recent attachment to the labour market, but the long-standing principle underlying it is that people pay contributions on the basis that, if they fall out of work through ill health or disability, they have a degree of financial protection. Some may pay in throughout their working lives and may never have to draw on it; some may pay in for just a few years and need recourse to the benefit for an extensive period. That is what social insurance is all about.

But we should be clear: being in receipt of a contributory benefit does not amount to having a life on benefits. The benefit is payable only for so long as somebody is unfit for work. We have accepted with some reluctance that a time limit could be imposed on contributory ESA, but it would have reasonably to

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reflect a time period sufficient to enable people to overcome their illness or disability and to access employment. A minimum of two years is to an extent still arbitrary, but there is no doubt that it is a more realistic timeframe within which to expect a return to work. However, an evidence-based process rather than an arbitrary figure should be locked into primary legislation.

Why will the Government not at least agree to remove the 365-day limit from the primary legislation? They have prayed in aid international comparisons for the one-year restriction, but even cursory probing in Committee, particularly by my noble friend Lady Hollis, demonstrated this to be a trifle flimsy. Our Library was unable to access any meaningful international analysis. Comparisons are made with the JSA regime and the fact that contributory JSA lasts only for six months, but JSA is a regime applicable to those deemed fit for work-that is, work ready. Let us be clear: to be eligible for ESA, a person must be assessed as having limited capability for work. That is defined in the Welfare Reform Act 2007 as being where a person's,

Of course, it is expected that people who are able should take every opportunity to move closer to the labour market, but any suggestion that the one-year time limit will act as a spur to force people towards work by making them poorer seems particularly pernicious. We and the Government know full well that many people in the WRAG will not be able to access work within a year.

The Government propose to do this irrespective of the particular health circumstances of an individual and in the knowledge that the prognosis for many people is that they will not be fit for work within 12 months. Indeed, they know full well that the data indicate the contrary. As we have heard, some 94 per cent of contributory ESA claimants have a claim which will last longer than one year. An analysis of the Pathways programme showed that, for 2008-09, only some 13 per cent of those who started the programme found work within one year. Perhaps the Minister would let us know the expected job conversion rates in the Work Programme for those entering from the WRAG.

The Government seem almost to be seeking to undermine the WCA and WRAG designations by bringing further policy levers to bear to push people back to work. There is the implication that it is somehow easy to be assessed as eligible for the WRAG. Pretty much all the evidence, as we know and have debated often, points in the other direction. Despite some improvements on Harrington, the volume of successful appeals against exclusion from the WRAG remains high.

The Government offer in mitigation the availability of income-related employment and support allowance without time limits, which will certainly help some, but the thresholds, as we have heard, are low-household income of £7,500 or capital of £16,000-and will preclude many from benefiting. We have heard about the numbers affected-100,000 people losing their benefit overnight and, overall, some 700,000 people. Income losses will amount on average to £36 per week.



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We are told that time limiting ESA will save some £1.3 billion a year by 2016 and that our amendments are unaffordable, but we should challenge this. If we are to be denied the opportunity to amend anything which the Government have cut, what purpose do we serve here? Of course the Government have to tackle the deficit and of course this is not easy, but it is for the Government to justify why this particular burden should be borne in this particular way. On their own impact assessment, of those who lose out from these proposals, more than half fall within the bottom three income deciles. Those in the lowest income decile lose on average £35 a week. What definition of fairness allows this to happen?

Amendment 38A, which I hope is more palatable to the noble Baroness, Lady Thomas, because of its cost implications, is more narrowly focused. It would remove time limiting in its entirety from those undergoing treatment for cancer or those who are in the WRAG as a consequence of being diagnosed with cancer. We heard in Committee and again today powerful testament about the range of barriers faced by people with cancer and its impact on their ability to return to work. They are not the only ones in this position, but we should take this opportunity today to secure greater justice where we can, even if this cannot be delivered for all. Supporting these amendments would not deny the Government a contribution to the government deficit; supporting these amendments would not give people a life on benefits; but it would give them a better chance to overcome the barriers which prevent them doing what they overwhelmingly want to do; that is, access the labour market with all the benefits that this can bring.

Lord Strasburger: My Lords, I fully support the Government's efforts to address the huge deficit which they inherited. However, my noble friend the Minister needs to explain why I should support this attempt to penalise some of the most vulnerable and disadvantaged people in our society for the greed of the financial services industry and the incompetence of the regulators. Do these sick and disabled people have the broadest shoulders, which we keep hearing about, to carry the burden of the cuts?

Lord Freud: My Lords, before we consider this group of amendments, it is important to remember the context within which they are proposed. I remind noble Lords that our proposal to time-limit ESA applies only to contributory ESA claimants in the work-related activity group, or WRAG. Those in the support group and those claiming income-related ESA are unaffected by the proposals.

We will always provide a safety net for those who have limited income, and people will still be able to claim income-related ESA subject to meeting the conditions of entitlement, including an assessment of means. In addition, other benefits such as housing benefit and council tax benefit will be available. However, it is only right that those claimants in the work-related activity group who are above the income threshold for income-related ESA should have their contributory benefit time-limited in a similar way to contributory JSA.



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Amendment 38, tabled by the noble Lords, Lord Patel, Lord McKenzie and Lord Low, and the noble Baroness, Lady Hollins, requires the time limit for claimants receiving contributory ESA in the WRAG to be a minimum of 730 days and to be prescribed in regulations. Amendment 39A, tabled by the noble Lords, Lord Patel and Lord McKenzie, is designed to have the same effect for claimants whose ESA youth awards are time-limited.

We understand noble Lords' concern about the proposal to introduce a time limit of 365 days for these claimants and the reasoning behind their request for the limit to be a minimum of 730 days. However, as I said in Grand Committee, the 365-day time limit is not an arbitrary one. It is similar to the limits applied in several countries overseas and around the world, including France, Ireland and Spain, and strikes a reasonable balance between the needs of sick and disabled people claiming benefit and those who have to contribute towards the cost. We strongly believe that a time limit of one year is the correct approach for a number of reasons. It strikes the right balance between restricting access to contributory benefits and allowing those with longer-term illnesses to adjust to their health condition and surrounding circumstances, and it is double the length of time allowed for contributory JSA in recognition of that fact.

There is also a very strong financial argument. As requested, I shall give my noble friend the figures on the costs. The total costs in this SR period are £1.1 billion -next year it is £270 million, then £420 million, and then another £420 million-and then £360 million, and then £140 million in 2016-17. Over the full five years it will be £1.6 billion, including £1.1 billion in this SR. It is a very large sum.

The noble Lord, Lord McKenzie, said that Governments have to justify reductions, and clearly reductions are difficult. However, when he proposes reducing our cuts by £1.6 billion over five years, he should consider that he also supported the move late last year on the social sector size criteria, which will cost £700 million in the SR period and £1.5 billion over five years. He is already up, over five years, to above £3 billion in reductions in cuts. The opposition Benches have also voted for or supported universal credit changes in excess of £600 million a year on an annualised basis once the system is introduced. These are huge figures which we will have to find elsewhere. Before one starts making such reductions, one has to ask: where are the alternatives? Where will we find these sums? That is why it has been such a difficult process for the Government to find ways of reducing the deficit while causing the minimum difficulties possible. Clearly, one makes the cuts where there is the most expenditure, but the expenditure has been provided to those who are the most deserving. That is the natural structure of it. That is why it is so difficult to do this.

The effect of Amendment 38A would be that no time limit is applied to contributory ESA for those claimants receiving treatment for cancer or where they are receiving benefit because of a diagnosis of cancer. Another effect of the amendment would be to extend the 12-month time limit for claimants in the WRAG if they are either having cancer treatment or their limited capability for work is caused by the effects of their

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cancer. I understand noble Lords' concerns in tabling the amendment and can confirm that at present around two-thirds of those with a primary diagnosis of cancer who complete their WCA are placed in a support group. This means that they would not be affected by time-limiting.

We want to make sure that the system is as accurate as possible and that is why we asked Professor Harrington to carry out his review.

6.45 pm

Baroness Morgan of Drefelin: The Minister referred to the position of two-thirds of cancer patients. Is that before or after the changes coming from the Harrington review with regard to intravenous chemotherapy versus oral chemotherapy and the automatic move of patients into the support group?

Lord Freud: The figure that I quoted is the existing one. I shall come straight on to the cancer issue because it is clearly of great importance. On the basis of the Harrington recommendations, the figure is expected to go up by about 10 per cent on the existing figure on our modelling basis.

There is a great deal of misinformation about the position and I shall try to pull out some of the main issues on cancer. First, the Guardian printed a letter from Professor Harrington in which he said:

"I believe the government's proposals would significantly improve on the current system and would be of considerable benefit to those who face the real personal challenge of a cancer diagnosis and subsequent treatment".

He went on to say:

"The government's proposals have been developed as a result of evidence submitted to me by Macmillan and discussions with cancer specialists. The proposals would considerably increase the number of people who receive unconditional support in the benefits system. They would also reduce, not increase, the number of face-to-face assessments that individuals suffering from cancer would undergo. The proposals are underpinned by a presumption that people undergoing cancer treatment will be entitled to the benefit if they have the necessary supporting evidence. They widen the scope of the people this applies to, while also allowing people who want to work to do so. This will mean better provision all round. Delays in these proposals may ultimately affect individuals and their quality of life".

We have now published the Macmillan evidence, which I hope is available and of great interest to noble Lords. What is interesting about the evidence is how many professional oncologists support this approach. I have a few quotes here which I would like to share with the House. The first states:

"Not all patients will experience toxicity related to treatment ... Not all patients should be exempt".

The next states that,

and so on. That evidence is available to noble Lords.

As to where we are on the important issue of cancer, we are now carrying out a consultation with the industry. That will be ready in March, when we will pick up the responses and apply them. The noble Lord, Lord Patel, may take some comfort from the fact that there is now a major process going on as we consider this issue, and he would be right to take such comfort.



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On the point raised by my noble friend Lady Thomas on the WCA, we are absolutely committed to making it as effective as possible. It is beginning to move quite quickly now in the right direction. We have taken forward all of Harrington's recommendations from year one, which means that decision-makers are better supported and have received new training, and all the ATOS reports now have a justification. Professor Harrington has praised the improvements that he has seen so far.

The other point raised by the noble Lord, Lord Patel, was-

Baroness Finlay of Llandaff: Before the Minister moves on, I wonder if I could ask for some clarification. When he talked about the evidence from oncology, he implied that patients would have to be not working for two years. I do not see anything in any of the proposed amendments that stops people going back to work as soon as they want to go back to work. Indeed, one hopes that many people will get back to work, perhaps on a part-time basis or whatever, within months of having their treatment, but the purpose of the amendments is not to force those who are so debilitated post-treatment or during treatment, particularly with fatigue that can go on for weeks or months before it improves, and not to make them subject to a guillotine coming down at the end of the year. Can the Minister clarify that there is nothing in the amendments that stops people going back to work as quickly as they want to?

Lord Freud: Clearly, there is nothing in any amendment or proposal to stop people going back to work should they wish to go back to work, but we are talking about the expectations that there are between the citizen and the state. That is a really important psychological relationship between the two, and that is what we are talking about rather than anything else.

I pick up the point made by the noble Lord, Lord Patel, when he quoted Citizens Advice. We were disappointed by what it said, not because it said stuff that we did not like to read but because it was based on the evidence of 37 work capability assessments when there were more than 600,000 completed in the year to May 2011. That report also relied solely on Citizens Advice's own interpretation of the healthcare professional's report and did not allow the HCP the opportunity to explain the reasoning.

Our view and policy is that the right way to address cancer diagnosis and treatment is by ensuring that the WCA provides an accurate and effective dividing line between the support group and the work-related activity group. We want the WCA to consider and assess fully the effects on an individual from both their cancer and the treatment they are receiving for that cancer. As I said, sufferers will be entitled to any income-related ESA.

I pick up the point raised by the noble Lord, Lord Wigley, on the burden on those who can least afford it, because some quite simplistic numbers are flying around here. We have said that income-related ESA will be available to those with the lowest incomes. I accept that if an ESA claimant's partner has earnings of £152.70 a week, no income-related ESA will be available, but that does not mean that the couple will be £94.25 a

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week worse off when the contributory ESA is withdrawn. I give an example of why that is not the case. A couple with a rent of £100 a week and council tax of £25 a week, one with the earnings of £152-odd and the other with a contributory ESA of £94, will have a total income of £291 before ESA is withdrawn and £277 afterwards. The main reason is that housing benefit and council tax rise substantially. So there is less income but there are not these very dramatic changes when you go through the actual sums-

Lord Strasburger: Do the same figures apply to a couple who own their own property?

Lord Freud: My Lords, as noble Lords know, we have two systems of housing support. We have housing benefit for those who rent their property and support for mortgage interest for those who need support with their mortgage payments. Currently mortgage payments are running rather lower than benefit, but that is only because mortgage rates are lower and that can change. We are looking at the whole system of support for mortgage interest, but there is a system in place to support people whether they are home owners or payers of rent.

On the basis of what I have said, I hope that the noble Lord will feel able to withdraw his amendment. Before I ask that he do so, I confirm that the Government see Amendment 39A as linked to Amendment 38, but that none in this group is consequential on another, and we would expect the House to make a decision on each individually.

Lord Patel: I thank the noble Lord for his response. I could pick up on each of the points that have been made and answer them, but the time does not allow that. I have to say to the noble Lord, Lord Blencathra, that we are talking here about the level of savings from welfare reform. We are not talking about the Government finding extra expenditure; it is the reduction in savings that we are talking about. The total reduction in saving of the whole welfare reform package will be in the region of £18 billion. We are talking here about not taking money away over five years even to the level of £1.3 billion from the most vulnerable in society. As I pointed out, they are those on the lowest third centile of income, to whom, as the noble Lord, Lord Wigley, said, it is £94 a week. If we are going to rob the poor to pay the rich, we are entering into a different form of morality. The noble Lord asked the question whether it is moral. I say that it is moral to look after those that are sick, vulnerable and poor. If that is immoral, what is moral is to pay the rich-and we are on a different planet altogether.

I come to the figures quoted. The figures are based on the assumption that no one goes back to work until they reach 24 hours. If you speak to cancer patients, you find out that their greatest desire is to go back to work, because it is part of therapy. Noble Lords should read the powerful article written by a very bold and courageous lady called Jenni Russell, which says:

"Not skiving, minister, just suffering cancer".

She describes what it felt like to have treatment for breast cancer. If you speak to patients on chemotherapy-and my noble friend Lady Finlay sees them every day-they

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feel good after four days of misery following chemotherapy. By the time they feel better it is time for another period of misery. The effect is cumulative to the point that after a few courses they cannot get out of bed and they wonder whether death might not be better than the disease. It is those people that we are talking about. They are not skivers or benefit cheats. They are the last people who cheat. Are we going to make savings there? I was honest in accepting that what I proposed was costly, but I am not going to be dishonest and say that therefore we should let those people suffer. I ask the House to determine who should be supported.

7 pm

Division on Amendment 38

Contents 234; Not-Contents 186.

Amendment 38 agreed.


Division No. 2


CONTENTS

Aberdare, L.
Adams of Craigielea, B.
Adebowale, L.
Adonis, L.
Ahmed, L.
Alli, L.
Alton of Liverpool, L.
Anderson of Swansea, L.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Bassam of Brighton, L.
Bath and Wells, Bp.
Beecham, L.
Berkeley, L.
Best, L.
Bichard, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blair of Boughton, L.
Blood, B.
Boateng, L.
Boothroyd, B.
Borrie, L.
Boyce, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookeborough, V.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Belmont, L.
Browne of Ladyton, L.
Campbell of Surbiton, B.
Campbell-Savours, L.
Chandos, V.
Christopher, L.
Clancarty, E.
Clarke of Hampstead, L.
Clinton-Davis, L.
Collins of Highbury, L.
Corston, B.
Craigavon, V.
Crisp, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Dixon, L.
Donaghy, B.
Doocey, B.
Drake, B.
Dubs, L.
Eames, L.
Eatwell, L.
Elder, L.
Elystan-Morgan, L.
Evans of Temple Guiting, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B. [Teller]
Ford, B.
Foulkes of Cumnock, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Giddens, L.
Gilbert, L.
Glasman, L.
Gloucester, Bp.
Golding, B.
Goudie, B.
Gould of Potternewton, B.
Grantchester, L.
Greengross, B.
Greenway, L.
Grenfell, L.
Grey-Thompson, B.
Griffiths of Burry Port, L.
Grocott, L.
Hall of Birkenhead, L.
Hanworth, V.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hennessy of Nympsfield, L.
Hilton of Eggardon, B.
Hollins, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe of Idlicote, B.


11 Jan 2012 : Column 171

Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hylton, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kakkar, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
Kerr of Kinlochard, L.
Kestenbaum, L.
Kilclooney, L.
King of Bow, B.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Laming, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Levy, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Low of Dalston, L.
Lytton, E.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Mallalieu, B.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
May of Oxford, L.
Meacher, B.
Mitchell, L.
Mogg, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Ely, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Myners, L.
Neill of Bladen, L.
Neuberger, B.
Nye, B.
O'Loan, B.
O'Neill of Clackmannan, L.
Palmer, L.
Pannick, L.
Patel, L. [Teller]
Patel of Bradford, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prescott, L.
Prosser, B.
Puttnam, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Ramsbotham, L.
Rea, L.
Richard, L.
Ripon and Leeds, Bp.
Rix, L.
Robertson of Port Ellen, L.
Rogan, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sandwich, E.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sherlock, B.
Simon, V.
Slim, V.
Smith of Basildon, B.
Snape, L.
Soley, L.
Stern, B.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Sutherland of Houndwood, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Tomlinson, L.
Tonge, B.
Touhig, L.
Triesman, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Walpole, L.
Walton of Detchant, L.
Warnock, B.
Warwick of Undercliffe, B.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Wigley, L.
Wilkins, B.
Williams of Baglan, L.
Williams of Elvel, L.
Williamson of Horton, L.
Wood of Anfield, L.
Woolf, L.
Woolmer of Leeds, L.
Worthington, B.
Young of Hornsey, B.
Young of Norwood Green, L.

NOT CONTENTS

Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B.
Arran, E.
Ashdown of Norton-sub-Hamdon, L.
Astor, V.
Astor of Hever, L.
Attlee, E.
Baker of Dorking, L.
Benjamin, B.
Berridge, B.
Black of Brentwood, L.
Blackwell, L.


11 Jan 2012 : Column 172

Blencathra, L.
Bonham-Carter of Yarnbury, B.
Boswell of Aynho, L.
Bottomley of Nettlestone, B.
Bowness, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Byford, B.
Cathcart, E.
Cavendish of Furness, L.
Chadlington, L.
Chalker of Wallasey, B.
Clement-Jones, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Courtown, E.
Crathorne, L.
Crickhowell, L.
De Mauley, L. [Teller]
Deben, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Falkner of Margravine, B.
Faulks, L.
Feldman of Elstree, L.
Fink, L.
Flight, L.
Fookes, B.
Framlingham, L.
Fraser of Carmyllie, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Goodhart, L.
Grade of Yarmouth, L.
Hamilton of Epsom, L.
Hanham, B.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Rising, L.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Inglewood, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jopling, L.
King of Bridgwater, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Kramer, B.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lexden, L.
Lingfield, L.
Linklater of Butterstone, B.
Liverpool, E.
Loomba, L.
Lothian, M.
Luke, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Marlesford, L.
Mawson, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Hendon, B.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Neville-Jones, B.
Newby, L.
Noakes, B.
Northbrook, L.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Palumbo, L.
Parminter, B.
Patten, L.
Perry of Southwark, B.
Popat, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Reay, L.
Redesdale, L.
Rennard, L.
Ribeiro, L.
Risby, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rotherwick, L.
Ryder of Wensum, L.
Sanderson of Bowden, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharp of Guildford, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Spicer, L.
Steel of Aikwood, L.
Stephen, L.
Stevens of Ludgate, L.
Stewartby, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strathclyde, L.
Taverne, L.
Taylor of Goss Moor, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.


11 Jan 2012 : Column 173

Thomas of Winchester, B.
Trefgarne, L.
Trimble, L.
True, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Ullswater, V.
Verma, B.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Wasserman, L.
Watson of Richmond, L.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Younger of Leckie, V.
7.13 pm

Amendment 38A

Moved by Lord Patel

38A: Clause 51, page 36, line 36, at end insert "except-

(a) where a person is receiving treatment for cancer when entitlement shall continue for so long as the person has (or is treated as having) limited capacity for work; or

(b) the person has (or is treated as having) limited capacity for work as a consequence of a cancer diagnosis."

Lord Patel: My Lords, Amendment 38A is specific to cancer patients. I have already spoken enough about the suffering of cancer patients and why they require extra time to recover. I have already referred to the article in the Sunday Times, in which a lady who experienced this describes very fully how debilitating it is. The amendment is merely to say that those cancer patients who are currently undergoing treatment, whether it be chemotherapy or radiotherapy, or who have recently finished treatment and are recovering from it but need that extra bit of time, should be supported. This is a small number of cancer patients; there are not many because most of them have recovered within a year. I beg to move.

7.14 pm

Division on Amendment 38A

Contents 222; Not-Contents 166.

Amendment 38A agreed.


Division No. 3


CONTENTS

Aberdare, L.
Adams of Craigielea, B.
Adebowale, L.
Adonis, L.
Ahmed, L.
Alli, L.
Alton of Liverpool, L.
Anderson of Swansea, L.
Armstrong of Hill Top, B.
Avebury, L.
Bach, L.
Bakewell, B.
Bassam of Brighton, L.
Bath and Wells, Bp.
Beecham, L.
Berkeley, L.
Best, L.
Bew, L.
Bichard, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blair of Boughton, L.
Blood, B.
Boateng, L.
Boothroyd, B.
Borrie, L.
Boyce, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookeborough, V.
Brookman, L.
Browne of Belmont, L.
Campbell-Savours, L.
Carter of Coles, L.
Chandos, V.
Christopher, L.
Clancarty, E.
Clarke of Hampstead, L.
Clement-Jones, L.
Clinton-Davis, L.
Collins of Highbury, L.
Corston, B.
Craigavon, V.
Crisp, L.
Davies of Coity, L.
Davies of Oldham, L.


11 Jan 2012 : Column 174

Davies of Stamford, L.
Dixon, L.
Donaghy, B.
Doocey, B.
Drake, B.
Dubs, L.
Eatwell, L.
Elder, L.
Elystan-Morgan, L.
Evans of Temple Guiting, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B. [Teller]
Ford, B.
Foulkes of Cumnock, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Giddens, L.
Gilbert, L.
Glasman, L.
Golding, B.
Goudie, B.
Gould of Potternewton, B.
Grantchester, L.
Grenfell, L.
Grey-Thompson, B.
Griffiths of Burry Port, L.
Grocott, L.
Hall of Birkenhead, L.
Hanworth, V.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hennessy of Nympsfield, L.
Hilton of Eggardon, B.
Hollins, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kakkar, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
Kerr of Kinlochard, L.
Kilclooney, L.
King of Bow, B.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Levy, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Low of Dalston, L.
Lytton, E.
McAvoy, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Mallalieu, B.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
May of Oxford, L.
Meacher, B.
Mitchell, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Ely, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Neill of Bladen, L.
Neuberger, B.
Nye, B.
O'Loan, B.
O'Neill of Clackmannan, L.
Palmer, L.
Pannick, L.
Patel, L. [Teller]
Patel of Bradford, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prescott, L.
Prosser, B.
Puttnam, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Ramsbotham, L.
Rea, L.
Reid of Cardowan, L.
Richard, L.
Ripon and Leeds, Bp.
Rix, L.
Robertson of Port Ellen, L.
Rogan, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Snape, L.
Soley, L.
Stern, B.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Tonge, B.
Touhig, L.
Triesman, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.


11 Jan 2012 : Column 175

Walpole, L.
Walton of Detchant, L.
Warwick of Undercliffe, B.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Wigley, L.
Wilkins, B.
Williams of Baglan, L.
Williams of Crosby, B.
Williams of Elvel, L.
Williamson of Horton, L.
Wood of Anfield, L.
Woolf, L.
Worthington, B.
Young of Hornsey, B.
Young of Norwood Green, L.

NOT CONTENTS

Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B.
Arran, E.
Ashdown of Norton-sub-Hamdon, L.
Astor, V.
Astor of Hever, L.
Attlee, E.
Black of Brentwood, L.
Blackwell, L.
Blencathra, L.
Boswell of Aynho, L.
Bottomley of Nettlestone, B.
Bridgeman, V.
Brinton, B.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Byford, B.
Cathcart, E.
Cavendish of Furness, L.
Chadlington, L.
Chalker of Wallasey, B.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Courtown, E.
Crathorne, L.
Crickhowell, L.
De Mauley, L. [Teller]
Deben, L.
Denham, L.
Dixon-Smith, L.
Dobbs, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Falkner of Margravine, B.
Faulks, L.
Feldman of Elstree, L.
Fink, L.
Fookes, B.
Framlingham, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
Glenarthur, L.
Grade of Yarmouth, L.
Hamilton of Epsom, L.
Hanham, B.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Inglewood, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jopling, L.
King of Bridgwater, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Kramer, B.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lexden, L.
Lingfield, L.
Linklater of Butterstone, B.
Liverpool, E.
Loomba, L.
Lothian, M.
Luke, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Marlesford, L.
Mawson, L.
Mayhew of Twysden, L.
Miller of Hendon, B.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Newby, L.
Noakes, B.
Northbrook, L.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Palumbo, L.
Parminter, B.
Patten, L.
Perry of Southwark, B.
Popat, L.
Randerson, B.
Rawlings, B.
Redesdale, L.
Rennard, L.
Ribeiro, L.
Risby, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rotherwick, L.
Ryder of Wensum, L.
Sanderson of Bowden, L.
Sassoon, L.


11 Jan 2012 : Column 176

Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharp of Guildford, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Spicer, L.
Steel of Aikwood, L.
Stephen, L.
Stewartby, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Trefgarne, L.
Trimble, L.
True, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Ullswater, V.
Verma, B.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Wasserman, L.
Watson of Richmond, L.
Wheatcroft, B.
Wilcox, B.
Younger of Leckie, V.
7.31 pm

Amendment 39

Moved by Lord Freud

39: Clause 51, page 37, line 4, at end insert-

"(2A) The period for which a person is entitled to a contributory allowance by virtue of the third condition set out in Part 1 of Schedule 1 (youth) shall not exceed 365 days."

Amendment 39A (to Amendment 39)

Moved by Lord Patel

39A: Clause 51, line 4, leave out "365 days" and insert "a prescribed number of days which must be at least 730"

Amendment 39A agreed.

Amendment 39, as amended, agreed.

Consideration on Report adjourned until not before 8.32 pm.

EU: Healthcare

Question for Short Debate

7.32 pm

Asked By Lord Kakkar

Lord Kakkar: My Lords, I am very grateful for the opportunity to introduce this Question for Short Debate on the impact of the European Union on the delivery of healthcare in the United Kingdom-a subject on which I have spoken in your Lordships' House on a number of previous occasions. In doing so, I wish to draw noble Lords' attention to my entry in the register of interests as a practising surgeon, professor of surgery at University College and active biomedical researcher. I would also like to take this opportunity to thank those noble Lords who have kindly added their names to the speakers list and who will make a contribution to this short, time-limited debate.

The impact of European Union directives and regulation on the delivery of healthcare in our country is an important issue. It is not primarily an issue of politics but of the well-being and safety of patients in our healthcare system. If there have been unintended

11 Jan 2012 : Column 177

consequences of the adoption of regulation and directives into domestic legislation, it is important for Governments to recognise this and ensure that appropriate measures are taken to overcome them.

We can consider the impact of legislation from Europe on the delivery of healthcare in our country in three broad areas. The first is directives and regulation that have already been incorporated into the laws of our country. The second concerns how directives and regulation that are under consideration should be incorporated into domestic legislation. The third covers areas of broader concern connected with potential consequences, particularly with regard to European Union competition law and the intended purpose of the Health and Social Care Bill.

As regards the first category, it is well recognised that the European working time regulation has had a detrimental impact on the training of our young doctors, particularly those who are training to pursue careers ultimately as independent practitioners at consultant level in the craft specialties, such as my own of general surgery. A restriction to 48 hours' working per week has resulted in trainees feeling that they have insufficient experience at the end of their training to be certain that they can perform independent consultant practice in the way that it is envisaged in our country rather than models for the delivery of clinical practice in other European countries, to the extent that there is genuine concern that we may be producing generations of consultants less able to deliver the rigorous and demanding practice that we have always expected and have been fortunate enough to receive in our country.

There is also the question of the additional cost of providing locum cover to ensure that rotas are compliant with a 48-hour working week. In an important piece of work published last year, the Royal College of Surgeons identified an additional £200 million a year cost in providing locums to ensure that rotas were 48-hour compliant after the first year of the introduction of the final European working time regulation.

There has also been considerable concern about the problem of language and competence testing. I think most noble Lords would agree that the same standard should apply to every doctor and healthcare practitioner working in our country with regard to their ability to speak the English language and be able to communicate appropriately with patients. There is no doubt that the ability to communicate is a hugely important part of the delivery of healthcare. Equally, it is only right that patients in our healthcare systems are able to expect that all doctors and other healthcare professionals who have the privilege of treating them in our hospitals and other healthcare environments practise to the same level of competence. At the moment it is impossible for the national regulatory bodies in our country to ensure that doctors who are registered elsewhere in the European Union meet the same standards as we expect of our own graduates or graduates from elsewhere in the world.

There are real concerns that the first year after qualification from medical school-formerly known as the house job year, now known as foundation year 1 -which is an essential part of completing the process

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for full registration with the General Medical Council, has now been opened up to competition from medical graduates across Europe as part of the free mobility of labour in the European Union. However, this first year of clinical practice remains an important element of ensuring that our young medical graduates can complete their training and can ultimately register to practise in our country. The issue is very simple: if they are unable to take that year, they are unable to fully register and will not be able to practise in our country. This is a huge waste because these talented graduates should remain in our country and serve our nation, ensuring that the debt they have is repaid through practice in the National Health Service. In this year's round of appointment to that first foundation year, some 52 potential graduates have not been given a foundation year 1 post and some 113 practitioners from the European Union have taken places on those foundation year 1 schemes. How do Her Majesty's Government propose to ensure that this problem does not result in our graduates being unable to complete that essential first year after they have qualified from medical school?

There are also important concerns about the impact of the European clinical trials directive in terms of reducing the competitiveness of the biomedical science and research science output of our country. It is estimated that in the year 2000, 6 per cent of all patients who entered clinical trials around the world came from our country. Soon after that, in 2003, the clinical trials directive was incorporated into our domestic legislation, and the problems associated with its bureaucracy have resulted in a reduction in this country to just 2 per cent in 2006 and 1.4 per cent in 2010 of the number of patients included in clinical trials around the world.

These are all well proven areas where Her Majesty's Government need to develop a strategy to address the problems that have been experienced. However, there are also important matters relating to directives that are currently being considered by the Department of Health for inclusion in domestic legislation. There is a directive on transplantation which, if incorporated, will add bureaucracy to the delivery of transplantation services in our country, resulting in added cost. Those responsible for the delivery of these services believe that our standards that are highly regarded throughout the world are of sufficient quality and that any potential European directive must not be gold-plated and undermine an already successful service.

With regard to energy efficiency, a directive that is currently under regulation has caused considerable concern to the NHS Federation. This directive requires the building stock of all public bodies, including the National Health Service, to be improved on an annual basis, and for 3 per cent of floor space to be addressed each year. This will cost some £70 million a year, and the NHS, given the severe financial constraints it is facing, can hardly afford this.

Then there is the ongoing concern that European competition law may inadvertently be applied and in some way affect the proposals of Her Majesty's Government in the Health and Social Care Bill. Clinical commissioning groups, in wishing to take forward the development of new services to improve the clinical

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outcomes and care of our patients, could be disrupted in doing that through the application of European competition law.

In October last year, the Prime Minister indicated that all government departments should look at European regulation to determine how it might be adversely impacting on the work of those departments and the life of our country. There is no doubt that in the area of healthcare, the training of our young doctors, the innovation and delivery of biomedical research, and the delivery of healthcare itself have been detrimentally affected. It is absolutely essential that Her Majesty's Government are sensitive to the concerns-repeated on several occasions by those with responsibility for the delivery of healthcare in our country-and act as a matter of priority.

Baroness Northover: I remind noble Lords that this is a time-limited debate and that all speakers, except for the Minister, have two minutes. When the clock displays two minutes, noble Lords have had their two minutes. I note that we are without at least one speaker in this debate.

7.44 pm

Lord Ryder of Wensum: My Lords, I congratulate the noble Lord, Lord Kakkar, on opening his debate with such clarity and force.

I am chairman of the Institute of Cancer Research, a college of the University of London. We are now regarded as the leading cancer research organisation in the world and are judged on the discovery and development of drugs. The clinical trials directive has harmed us. It lacks harmonisation across and even within countries. What is called a clinical trial in country A may be an observational study in country B. Sometimes drugs within a protocol are deemed investigational medicinal products instead of supportive medication or routine therapy. Red tape abounds, inspections are inconsistent and heavy-handed, and high-quality clinical trials are stifled by the directive. It handicaps innovation, causes delays with new trials, obstructs our competitive edge over the USA and other countries, and renders us a less attractive location for trials. It damages our pharmaceutical industry-Britain's most successful manufacturing sector. The Americans are counting their good fortune, and soon the Chinese and the Indians will be accumulating theirs.

Trials are cornerstones of the work with our sister organisation, the Royal Marsden Hospital. The blame for the follies inflicted on us radiates at the feet of the EU, and I urge the Government to press harder for revisions to the directive.

7.46 pm

Baroness Scott of Needham Market: My Lords, I wish to focus on the mutual recognition of professional qualifications directive, which provides the framework within which healthcare professionals move around within the EU.

I am entirely supportive of the notion of free movement across the Union and I have no doubts about the benefits that the mobility of healthcare professionals can bring to patients and to the medical profession. However, a number of high-profile cases

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have called the workings of the directive into question, and all UK regulators have expressed strong concerns that the current system forces them to admit individuals who do not meet the standards that would be required of UK or non-EU professionals.

Professional mobility should never be at the expense of patient safety. There is evidence that, as it currently stands, the directive is striking the wrong balance. The requirements as currently set out are not sufficient to ensure that qualifications and skills are adequate and up to date. We need a competence-based approach, rather than a one-off qualification, fixed at a particular point in time and hard to compare across jurisdictions. Knowing that an individual who has not practised for years has had to take steps to come up to date is essential.

Authorities in host member states must be able to access adequate information regarding the professional history of an individual and to seek answers to any queries they may have. Use of the Internal Market Information System is likely to represent a simpler and more cost-effective option than the proposed European professional card. There is currently no alert system to inform member states when a fitness-to-practise case is brought against an individual. If such a system were to be introduced in some member states, it would be hindered by the use of domestic data-protection legislation.

The ability to communicate effectively in the language of the host member state is critical to safe and effective practice and is the most obvious cause of concern to patients. The directive fails to ensure that professionals meet the necessary standards.

7.48 pm

Baroness Masham of Ilton: My Lords, I live in a rural area where patients with serious conditions are now treated many miles away. The local population has become reliant on the voluntary air ambulance. This is the most popular charity in the north. It can be a life-or-death situation. The lifeboats that also save lives and do an equally important voluntary job do not have to pay VAT on fuel, but the ambulances do. A Question was therefore tabled asking whether air ambulances could have equal exemption from VAT. The noble Lord, Lord Sassoon, answered:

"EU law provides a specific exemption from VAT for the supply of certain equipment and services used for sea rescue. There is no equivalent provision for air ambulance rescue services".-[Official Report, 16/6/11; col. WA 202.]

Is it not time that the EU helped all charities that save lives throughout the EU and allowed VAT exemption on fuel?

I ask the Minister, is there a problem of medication being sold to EU countries for a better price than in the UK? Are we running short of some drugs in some areas? I declare an interest: I have used CoAprovel for some time. My surgery in north Yorkshire can no longer obtain it, and I therefore take the prescription to London, where the drug is still available. The UK should maintain adequate supplies of medication so that patients are never left in a situation where they must wait for their treatment. I hope that safeguards will be put in place.



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7.50 pm

Viscount Bridgeman: My Lords, I join other noble Lords in congratulating the Lord, Lord Kakkar, on his masterly overview of the subject.

In the short time available, I have to record cautiously encouraging news. Your Lordships will recall a debate on 8 September in which attention was drawn to the problems with language testing of health professionals from the EEA. My noble friend Lord Howe gave an encouraging reply at the time and, following a constructive Green Paper issued by the Commission, a draft directive was issued in December which includes three significant proposals.

The first is that a warning system is to be introduced so that regulatory bodies must warn each other if, for example, a doctor or nurse has been struck off or suspended from a register and attempts to register in another member state. The second is that there will be updated minimum training requirements for doctors, dentists, pharmacists, nurses and midwives to reflect the evolution of those professions and of education in those fields. That is particularly important with some of the newer accession states, where there is a very different culture and practice. The third is the right for regulatory bodies to check the language skills of health professionals-something for which UK health organisations have been pressing. On that point, does the department's reading of Article 38 of the directive, especially its second paragraph, give a blanket power for a competent authority routinely to examine all applicant health professionals for knowledge of the language, which I understand to be a common aim among those authorities?

Those three proposals will have a major impact in remedying the shortcomings affecting health professions which were thrown up by the original directive. I remind your Lordships that the healthcare regulatory organisations in England, and those covering devolved Administrations where they have responsibility, played a major role in discussion on the Green Paper. Finally, I pay tribute to the Minister and his department for working with the Commission to achieve what I am confident will be a favourable and constructive development.

7.52 pm

Lord Clement-Jones: My Lords, I was hoping that the noble Lord, Lord Owen, would be taking part in this debate, as I believe that he was going to be talking about competition law, but this is an opportunity to intervene briefly on the issue. I think the noble Lord, Lord Kakkar, for giving us the opportunity.

The main arguments given by the department for there being a low risk of application of EU competition are that, for commissioners, healthcare is provided on a universal basis on the principle of solidarity and, for providers, that they will not be regarded as undertakings unless the particular economic activity in which they are engaged is part of a market.

However, a number of questions arise. What if providers collaborate, as they do in the post-acute care and enablement programme, which is a collaborative model? What if other providers who are excluded from a consortium object to that? It could be alleged that there is anti-competitive behaviour. What if

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commissioning bodies create a market, as we have done with elective surgery and ISTCs? There are also question marks over the criteria for mergers, in particular when foundation trusts merge. Why cannot we also temper the application of EU law by referring specifically to Article 106 of the TFEU in terms of the task of integration assigned to commissioners, and mitigate the Competition Commission's exercise of its duties regarding tariffs, Monitor's duties, and so on, by praying in aid the need to have regard to the interests of patients?

7.54 pm

Lord Patel: My Lords, I want to speak about the data protection directive. It regulates the processing of any personal information, and has been transposed in the UK as the Data Protection Act. That legislation covers any activities that involve data processing. They are as diverse as marketing and internet transactions, routine administrative data collection and the use of health records for research and clinical practice.

Health research is therefore only one small aspect of the directive, but that complex legislation has had a major impact on how health data are used in studies. Properly controlled access to individuals' health records is essential for health research. Health records enable researchers to identify patients to take part in clinical trials and to provide data for observational studies, such as those looking for associations between particular lifestyle choices and ill health. Researchers find the legislative framework for the use of health data complex and confusing. For example, they are uncertain how much protection now offered by exemptions for research on how they handle anonymised data, where the identity of individuals is masked.

The European Commission will put forward a new legislative proposal to replace the data protection directive at the end of January. That is expected to increase the rights of individuals, and it is highly likely that that will have an impact on how we use health data in research, even if that is unintended.

The Government recognise the importance of the use of patient data in research. I welcome the recent commitment to consult on changes to the NHS Constitution to create a system that will enable patients' records to be used in research unless they opt out. This is therefore an exciting but also anxious time for the use of health data in research. We must make sure that changes to EU data protection legislation do not inadvertently hamper those plans. I am sure that the noble Earl will liaise with the Justice Department to ensure that that is not the case.

7.56 pm

Lord Walton of Detchant: My Lords, in the 1970s, when I was chairman of the education committee of the General Medical Council, before I became its president, I was for five years a member of a European advisory committee on medical education, which produced a number of reports on basic and clinical education. It had the effect of improving medical education in many parts of the EU. That remains somewhat uneven. At the same time, we introduced a Professional Linguistic Assessments Board exam for doctors from outside the European Union coming to work in the UK to assess

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their clinical competence and their ability to understand English. When we tried to do that for European incoming doctors, we were threatened with being taken to the European Court because that was contrary to the Treaty of Rome. At that time, we persuaded the Department of Health that it was essential that it should impose a language test on incoming doctors from the EU as a condition of employment. That has been done very unevenly. What action are the Government taking to improve that situation? Do they propose to try to renegotiate the European working time directive, which has had such an adverse effect on the training of many junior doctors?

Secondly, does the noble Earl think it likely that the Human Tissue Authority will be the competent authority to deal with the transplantation directive in the UK at a time when the Government propose either to abolish or to merge that organisation? Finally, is the European directive on clinical trials being considered by the newly established Research Regulatory Authority?

7.58 pm

Lord Lexden: My Lords, there can be no doubt about the importance of the issues which my noble friend Lord Kakkar raised for debate and introduced with his customary eloquence.

As is well known, where the European Union is concerned, the tendency is often for difficult practical issues to be subordinated to well intended political ideals. As the Social Policies and Consumer Protection Sub-Committee, of which I am a member, pointed out in its report on the mobility of healthcare professionals last year, nowhere is it more important for this tendency to be resisted than in matters relating to patient safety.

The sub-committee concluded that the mutual recognition of professional qualifications directive,

and that the increased desire for mobility, which we all share, was nevertheless resulting in the admittance of individuals who do not meet standards required to be considered to practise in the United Kingdom. We should keep the sub-committee's conclusions firmly in mind and continue to push for the development of a competence-based approach for the recognition of qualifications across the EU.

More positive, to my mind, are EU proposals for enhancing cross-border access to healthcare-proposals that do more justice to the principles of open markets and free movement. The proposals have the potential to reduce waiting times for patients facing unduly long delays. The principle that patient reimbursement should not exceed the value of the cost of the same or equivalent treatments on the NHS should exert pressure to keep the new directive's costs under control.

As ever, though, we must be vigilant. As the NHS devolves increased local powers to patients and professionals, the importance of thorough and transparent pricing structures becomes greater. It is easy to imagine a situation in which two patients receive differing levels of reimbursement for the same treatment, performed at the same hospital abroad, based on differences in British local costs. It will be hard to justify such differences to the electorate. As we seek improvements in service, we must always be alert to practical difficulties that may arise.



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8 pm

Lord Crisp: My Lords, I should like to raise three unrelated issues and ask three simple questions. The first builds on the issues raised by the noble Lord, Lord Kakkar, in his opening remarks and picked up by the noble Lord, Lord Walton, about the working time directive. I understand that the recent attempts to revise the directive have failed but that discussion is under way with what are called the EU "social partners", which are essentially the trade unions and employers organisations. I ask a simple question: if those discussions raise it in this fashion, will the Government support the opt-out from the EU working time directive proposed by the surgeons, which would allow them to work up to 65 hours a week?

The second unrelated issue is that one of the unintended consequences of opening our doors to Europe in this way-very positive as that is-is that it has tended to exclude those from other parts of the world who have made such an enormous contribution to the UK, particularly those from Commonwealth countries. Will the Minister confirm that the Government will continue to support the international medical training schemes for people from the Commonwealth and beyond? Indeed, will he promote them further? At the moment they are not being picked up in any great numbers.

My third point picks up on the issue raised by the noble Lord, Lord Lexden, concerning the cross-border healthcare initiative. It seems to me from everything that I have read that it is very uncertain what the numbers will be in practice. Can the Minister let us know what the Government's own assessment is of the likely impact of introducing that directive later this year or next year?

8.02 pm

Baroness Greengross: My Lords, I basically support many of the aims of the working time directive. None of us wants to see junior doctors exploited or working until they are so tired that they are a danger to the patients for whom they care.

The two judgments in SiMAP and Jaeger were most unfortunate and in fact skewed the working time directive in a very bad way. The result has perhaps been damaging to one very large group of patients-frail older people, who form a quarter of the patients in our hospitals. As we know, some tasks previously carried out by doctors were understandably handed over to nursing staff. This can be a good thing, but in many cases what was previously carried out by nurses has been handed on to healthcare assistants. Healthcare assistants are largely untrained, are not regulated and do not always have the competences that are needed. We know, sadly, that much basic care, such as help with feeding, adequate nutrition and hydration, and even basic toileting, has not been carried out well and has had dreadful consequences, which unfortunately we read about in the press all the time.

These very frail patients-a quarter of the patients whom we treat-often suffer from some form of cognitive loss or dementia. They need to be cared for by people whom they understand and feel they can trust, and language is very important in this. We must be certain that these patients feel safe with the people who are

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caring for them. Therefore, we need language testing by regulators to make sure that the standard of care that our frail patients receive respects their dignity and human rights, and we must work towards that.

8.04 pm

Lord Ribeiro: My Lords, I apologise to the noble Lord, Lord Kakkar, for missing the beginning of his speech, and I thank him for bringing this debate to your Lordships' House.

"The European working time directive is destroying surgical training". This was a comment from a surgical trainee responding to the General Medical Council's national training survey of 2010. It echoes warnings made by the Royal College of Surgeons since 2004, when the 58-hour maximum working week was introduced. In 2011, the Association of Surgeons in Training and the British Orthopaedic Trainees Association surveyed 1,887 trainees on the impact of the working time regulation, which introduced the 48-hour limit in 2009. Sixty-six per cent reported a deterioration in surgical training, only 1.6 per cent reported an improvement, and 67 per cent had to attend work when off duty to maintain their operative training and learning.

The GMC repeated that survey again in 2011. While showing an improvement in some specialties, it found no change in surgery, with 80 per cent of trainees working beyond their rostered hours. It found 60 per cent of trainees in obstetrics and gynaecology and surgery taking longer to achieve the required educational competences as a result of the working time regulation. In America, trainees are allowed to work up to a maximum of 80 hours, and in some specialties this can be increased to 88 hours.

I believe that a more flexible approach is needed to allow senior trainees on the verge of consultant practice to work longer hours if needed, as in the United States. A return to an average of 56 hours for craft specialties would allow new trainees, starting at 48 hours, the time to develop their skills as they progressed through their training to a maximum of 65 hours for senior trainees, as allowed by the opt-out clause of the EU and as noted by the noble Lord, Lord Crisp. A one-size-fits-all solution is not appropriate, and the feedback from trainees suggests that it is damaging their training. Will the Minister identify what steps the Government intend to take to ensure greater flexibility, and will the Government consider overturning the SiMAP and Jaeger judgments and revising the new deal and the WTR?

8.06 pm

Baroness Wheeler: My Lords, I, too, congratulate the noble Lord on initiating this debate, and I also congratulate other noble Lords who have very comprehensively covered the wide range of important EU healthcare issues currently in the process of discussion, development or implementation in the UK. Considering these issues as a whole in the one debate, rather than tending to debate them separately as various reports or new proposals or directives come up, has been invaluable. It provides us with an overview of the key issues, how they impact on each other and how they

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can reach into every aspect of the NHS care and treatment of patients, research, and the working lives and training of healthcare professionals.

The cross-border health directive, which we are required to enact by October 2013, the draft directive on the mobility of health professionals, and the implications for our NHS of the EU's proposals for revising the energy efficiency directive-with the prospect of huge expenditure and further upheaval for our NHS if, as a public body, it is to become a major driver in achieving EU energy efficiency targets-all present major challenges for the NHS, and one does wonder how well equipped it is to meet them in its current state of uncertainty and upheaval.

In view of the short time available, I want to focus on four questions to the Minister. First, on the clinical trials directive, I echo the concern of noble Lords who have pointed to the UK's steadily diminishing global share of clinical trials. I look forward to hearing from the Minister how the Government are addressing this decline. How will the new NHS architecture impact on this, and when might we expect our share to start rising again?

Secondly, on EU procurement law, the question we need to address when we come to it in the next stage of the Health and Social Care Bill is the proper balance between planning and the social solidarity that is expressed by the NHS. We also need to consider the effect of EU procurement law on commissioning and the progressive effect of the EU procurement regime to the point where commissioning decisions and planning become victims of court cases. What is the Minister's opinion of where the balance lies? Will he expedite the meeting that he promised with noble Lords, including my noble friend Lady Thornton, to discuss ways forward on this matter?

Thirdly, how is EU work progressing on tackling health inequalities across EU countries? What initiatives are being undertaken or supported by the Government and what are the timescales for report and development? Finally, I note that last year the UK NHS was owed more than £38 million from EU member states for healthcare treatment for their nationals, so it would be helpful if the Minister could update the House on the progress and systems that are in place to ensure that this money is collected.

8.10 pm

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, I begin by thanking the noble Lord, Lord Kakkar, for calling this debate and, indeed, all noble Lords who have spoken and contributed so eloquently and, I may say, succinctly. The Government are determined that the NHS achieves results for patients that are consistently among the best in the world. One way to do that is to compare our experience with those of other European countries. There are many areas where we can learn from each other-for example, where we have worked closely with counterparts in Spain, which has the highest organ donation rate anywhere in the world, to improve donation rates here.

In assessing the impact of the EU on healthcare in the UK, we should start by recognising that the Treaty on the Functioning of the European Union respects

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the right of member states to organise and manage their own health services. Much of the activity of the European Union on health is therefore designed to complement national policies. However, various areas of European legislation, as noble Lords have pointed out, can have an impact on healthcare in the UK. One such area is social policy. Every year, many millions of UK citizens travel within the EU knowing that, should the need arise, they can access immediately necessary healthcare for free, or at a substantially reduced cost, by using their European health insurance card as a temporary visitor. Many UK state pensioners prefer to live in the warmer climate of countries like Spain or France, and do so knowing that their healthcare costs are covered. Of course, if they were to live here in the UK, they would be entitled to treatment under the NHS.

Noble Lords will be aware-some have mentioned it-of the European Union directive on cross-border patient mobility. Until relatively recently, there was little discussion of the issue of patient mobility at a European level. However, a new generation of Europeans, accustomed to crossing borders with ease and able to purchase goods and services from any part of the European Union, are proving less willing to accept constraints on where they can obtain their healthcare. The new directive brings together several years' worth of case law established by the European Court of Justice. It makes clear the rules that apply when EU citizens wish to access treatment in another member state. The directive sets out the arrangements under which member states are obliged to accept citizens from other EU states, and explains the rules for refusing such treatment. It also sets out the systems that a state must provide to allow its own citizens to access their rights to cross-border healthcare. I say to my noble friend Lord Lexden that we do not expect an influx of patients rushing to take advantage of NHS services. The NHS does attract some overseas visitors, including many from outside Europe, who pay for their treatment. EU citizens, entitled to treatment under the directive, would be reimbursed by their home system but only up to the cost of providing the treatment in their home state.

There is also a substantial body of European legislation regulating medicines and medical devices. This legislation, harmonising requirements for allowing medicines and devices into the EU, has reduced burdens on pharmaceutical and medical device companies in accessing the whole European market. The UK plays a prominent role in shaping the regulatory frameworks for medicines and devices with the Medicines and Healthcare products Regulatory Agency, which is one of the leading regulators in Europe.

My noble friend Lord Ryder and my noble friend Lady Wheeler-I apologise for calling the noble Baroness, Lady Wheeler, my noble friend, although of course she is-spoke of the clinical trials directive, as did other noble Lords. That directive is designed specifically to harmonise clinical trial practice across Europe. In recent years, there has been a decline in the number of clinical trials conducted in the EU and the UK. That cannot be attributed only to the introduction of the clinical trials directive as international competition for attracting clinical research has increased dramatically in recent years.



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However, the Government consider the revision of this directive to be a priority to ensure that the UK remains an attractive place for the conduct of clinical trials. The European Commission is also committed to revising the directive. A scheme was introduced in April this year for the notification of low-risk national trials, replacing the traditional authorisation process, and more risk-proportionate monitoring has been introduced, taking a targeted approach to monitoring that depends on the level of risk a trial represents to patients and data credibility. I should say to my noble friend Lord Ryder that one of the Government's aims for the revision of the clinical trials directive is to harmonise its implementation across Europe. The Government have been influencing the Commission so that the revision of the directive ensures that the EU becomes an attractive place for the conduct of clinical trials once again.

Another priority for the Government is the revision of the directive on the mutual recognition of professional qualifications. We have made it clear that we want to stop foreign healthcare professionals working in the NHS unless they have passed robust language and competence tests. The proposal published by the European Commission last month contains some welcome amendments, such as a new proactive alert mechanism. This should contribute significantly to tightening the European regulatory framework and improving patient and public safety. While the proposal would not allow language checks by a competent authority before recognition of the qualification of a professional, they do make it clear that controls on language checks would be permissible and could be undertaken before a professional was able to practise. I should say to my noble friend Lord Bridgeman that the Government are currently analysing the proposals in detail to formulate a UK negotiating position. As usual with EU proposals, part of this process will involve consulting the devolved Administrations. I say to my noble friend Lady Scott and the noble Lord, Lord Kakkar, that the Commission's proposal does contain some welcome amendments, such as that proactive alert mechanism and negotiations on the text are due to begin at the end of January 2012, with the aim of reaching an agreed directive in the autumn of this year.

With regard to the European professional card, which was raised by my noble friend Lady Scott, the Commission has worked with stakeholders to develop proposals for the card. There have been some positive developments in the proposals and it seems that what is now proposed will be underpinned by use of the internal market information system, but we need to seek views from competent authorities about the administrative implications of the proposals before we can finalise our position. The Government have made clear that mobility should not be at the expense of patient safety. The Commission's proposals recognise the unique position of healthcare professionals and they build additional safeguards into the directive for healthcare professionals in certain areas-for example, in the case of that alert mechanism. Provided that the necessary safeguards are built in for healthcare professionals, we see no reason for a conflict between the joint aims of facilitating patient safety and freedom of movement.



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In relation to EEA migrants having access to the vocational year's training as part of the directive proposals, which was an issue raised by the noble Lord, Lord Kakkar, the proposals were only recently published by the Commission, which was undertaking a detailed analysis to better understand the impact on healthcare professionals and patient safety. A number of aspects of the proposals require further clarification. A key priority for the Government going forward is to ensure that freedom of movement by professionals is balanced by safety considerations.

I move now to the working time directive, which was an issue raised by many noble Lords, including the noble Lords, Lord Kakkar, Lord Walton and Lord Crisp, the noble Baroness, Lady Greengross, and my noble friend Lord Ribeiro. We are committed in the coalition agreement to limit the application of the working time directive in the UK. The agreed government position is that retention of an individual's right to opt out of the limit on weekly working time must be the UK's clear overall priority in any renegotiation of the directive. The UK would welcome changes to increase flexibility on on-call time and compensatory rest, but not at the expense of losing the opt-out.

The noble Lord, Lord Crisp, mentioned the opt-out in particular, and my noble friend Lord Ribeiro asked about flexibilities. The directive at the moment affords all doctors the choice to opt out and work more than 48 hours a week. Doctors who opt out can work up to 56 hours-the maximum outlined in the new deal. But breaching that limit would be very costly for the NHS. The opt-out gives working people, including doctors, the choice over their working hours. They are better off because of that choice, we believe. Therefore, it is a Government priority that individuals should continue to enjoy the right to opt out if they wish. The 48 hours is measured over the reference period of six months. Therefore, doctors may in any week work more than 48 hours; there is flexibility. In response to the Temple report, my right honourable friend the Secretary of State asked Medical Education England to advise NHS employers on ways to realign and simplify the new deal. The Department of Health has received its report and is considering the recommendations very carefully, including the case for negotiating a new contract.

I move to organ donation, which was raised by the noble Lords, Lord Walton and Lord Kakkar. The Government are fully committed to supporting action across the EU to increase the number of safe, high-quality organs available for transplant. We are working with the Commission and other member states to help ensure that any legislative framework will not prove to be a disincentive to organ donation and transplantation. I am sure that all noble Lords will agree that having more safe, high-quality organs available for transplant across Europe would benefit all member states alike.

The noble Lord, Lord Kakkar, and my noble friend Lord Clement-Jones, raised the issue of the potential consequences of the application of EU competition law to the NHS under the Health and Social Care Bill. Competition law could already potentially be applied to the provision of NHS services. The relevant treaty provisions have already been incorporated into UK law. The purpose would be to protect patients' interests

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from abuses. The potential consequences would extend to remedies and sanctions to address abuses in individual cases. However, European case law makes clear that commissioners of NHS services would not be subject to competition in respect of their purchasing activities, so under the Health and Social Care Bill clinical commissioning groups would not be constrained by EU competition law in their decisions on how best to improve services. I have more to say on competition law but unfortunately time is against me.

The noble Baroness, Lady Masham, asked me about the exemption from VAT for air ambulances. I will write to her on that as I do not have the answer in my brief.

The noble Lord, Lord Patel, asked about the data protection directive. The Commission is in the process of reviewing the existing directive and will publish a draft for consultation, which we expect by the end of the month. We will then have an opportunity to comment and give our views. The department is well sighted on this. We are involved in the discussions to ensure that UK researchers are not affected by proposals covering data protection in respect of research.

The noble Lord, Lord Walton, asked about the role that the new Health Research Authority might have in clinical trials. The HRA will not take over the role of the MHRA in assessing and inspecting clinical trials but will be involved in streamlining the processes, as the noble Lord is aware. On 1 December the HRA issued proposals for the further development of its national research ethics service.

Time has moved on. In closing, I will highlight the positive impact that the EU has had on healthcare in the UK. We are able to share experience and expertise with other member states to improve quality and standards and to encourage innovation, and we are determined to ensure that the United Kingdom continues to play a key role in shaping the European health agenda.

8.23 pm

Sitting suspended.

Welfare Reform Bill

Welfare Reform Bill

Report (3rd Day)(Continued)

8.32 pm

Amendment 40

Moved by Lord Freud

40: Clause 51, page 37, line 5, after "(1)" insert "or (2A)"

Amendment 40 agreed.

Amendment 40A

Moved by Lord McKenzie of Luton

40A: Clause 51, page 37, line 13, at end insert-

"(d) does not include any days in which a claim in respect to ESA is in the assessment phase."



11 Jan 2012 : Column 191

Lord McKenzie of Luton: My Lords, I shall speak also to the other amendment in our name in this group. Perhaps more than any other component of these changes, the inclusion of the assessment period in the tally of days which count to limit contributory allowance serves to underline that this is fundamentally about budget cuts. The assessment phase of an ESA claim normally ends 13 weeks after the beginning of an entitlement. It is the period during which DWP gathers relevant information about a claim to determine whether a person has limited capability to work or limited capability for work-related activity. While the assessment is under way, there is no entitlement to an additional component. Indeed, it is the additional component which is supposed to reflect the additional needs of those who are not job ready. If the assessment determines that a claimant should be treated as having limited capability for work or work-related activity, the relevant additional component will be backdated to the end of the 13-week period, albeit that the assessment period may have been longer. During the 13-week period, the individual is entitled to only the contributory ESA rate equivalent to the income support JSA basic personal allowance rate. This is the same rate as the contributory JSA rate. By including in the 365-day period the 13-week assessment phase with no additional component, the Government are denying the receipt of 13 weeks of the additional component at the end of the period. This is demonstrably unfair.

We will doubtless be reminded of the cost implications which are, I think, £20 million a year after 2012-13 and £115 million for that year, the accumulated effect of those hitting at the start of the system. The effect of what the Government are proposing is that the additional component receivable by those entitled to contributory ESA in the WRAG will be available for only nine months, not 12 months. This is an example of where somebody has looked at every conceivable means of clawing back moneys from sick and disabled people. The benefit to government is said to be £100 million in a year, but looked at another way, this is an additional £100 million in a year taken from the pockets of the disadvantaged.

Amendment 41A addresses the position of those with fluctuating conditions who might move between the WRAG and the support group. Fluctuating conditions have been a strong feature of our debates on this Bill and on previous welfare reform measures. Concerns have been expressed about how work capability assessment operates for those with such conditions, whether there is sufficient training for DWP staff and providers and whether there is appropriate expertise which can be brought to bear to make sure that the system works as it should for people with fluctuating conditions. This brings with it the prospect of individuals potentially moving between the WRAG and the support group when reassessment arises.

Movements into the support group have been protected by the government amendment, and for so long as somebody is in the WRAG or the support group movements into the latter would not be denied contributory ESA, but periods in the WRAG are accumulated for the purposes of the time restriction. The problem this brings is as follows: consider somebody with cancer or another fluctuating condition who has

11 Jan 2012 : Column 192

spent, say, 11 months in the WRAG, has moved to the support group for a period and whose condition subsequently improves so they move back into the WRAG on a reassessment. If the clock does not then start again, they are given one month to prepare themselves for the loss of contributory benefit and to seek to re-enter the workplace. This problem would be made worse if there was an extensive period in the support group because of the greater disconnect with prior work-related activity. It is submitted that the amendment is a narrow and entirely reasonable proposition. The Minister may have figures about how many people it might affect, but it is suggested that it is unlikely to be many.

Amendment 41A, which has been tabled by the noble Lord, Lord Patel, precludes the starting of the time-period limitation for contributory ESA until the relevant provisions of the Bill enter into force. It has our support as it stands. As we discussed earlier, the clock has already started. When this legislation enters into force-the earliest date being April this year-some 100,000 people will lose their contributory ESA overnight, and for some that will be as much as £94 a week. Some may have been receiving it for the bare 365 days yet have paid their national insurance contributions for decades. We await further comments from the noble Lord, Lord Patel, but on any reasonable analysis, this is retrospective legislation and should be opposed. If there is to be time limiting of contributory ESA, in the normal course of events one would expect it to operate for claims after the introduction of the legislation. The Government are applying it to existing claims. Worse, they are counting days for which the allowance has already been received. Letters of notification have served only to cause confusion and dismay. Just imagine the consternation that would be caused by having a letter drop on the doormat telling you that in six months' time it is likely that you will lose as much as £94 a week of your income-overnight.

In their understandable need to address the deficit, which we acknowledge, I believe the Government have lost all perspective and all sense of fairness. They have been thrashing around in all directions to grab back money on the flimsiest of propositions. Frankly, they should be ashamed of themselves.

Lord Kirkwood of Kirkhope: My Lords, I want to make a brief contribution to this debate because we have had a busy day and I think we all want to go away and reflect on what some of the earlier important amendments and votes mean for the rest of the Bill.

As I was preparing for tonight's consideration of the Bill, I thought that Amendment 40A had some real potential to try to keep some channels open to the department. We have had some very powerful speeches and some significant decisions taken by the House. For myself, I want to go away and read all of those carefully. If we were looking for a way of trying to meet some of the obvious concerns that have been expressed in this debate, both internally and externally, this amendment suggests that there might be a possibility of getting something that can stand the test of time and that does not destroy the tight financial framework within which the Minister is seeking to operate.

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I know that he cannot on a whim say, "Yes, this is something that is possible for me to go away and look at", but I think this is potentially realistic.

There are a number of reasons for supporting it, not just because it is realistic and meets some of the concerns but because it wins some extra time for everyone. The extra three months would be of significant advantage to the claimants concerned. My noble friend Lady Thomas made an important point earlier when she said that Harrington has a great deal of potential. I do not think that has been properly reflected in any of this evening's discussions. The Government have set out their stall very robustly about the five-year set of annual reviews. I am well pleased, and I think everyone else is, about the progress that Professor Malcolm Harrington is making. Perhaps he should be invited to consider some of these things, including what might be done around the assessment phase. All I am saying is that I think there is some potential here for getting a compromise that might be winnable in terms of the financial constraints and might keep the channels open through the rest of the proceedings of this Bill-we might be able to come back to it at Third Reading.

In the balance of what else has happened today, this might seem nugatory or irrelevant, but I do not take that view. I think there is a mechanism here that is sensible and that may be doable. It will not be easy and there cannot be any guarantees, but I would really counsel my noble friend the Minister-who I know is actively concerned about all of this and is trying to find a way through that meets his financial framework as well as the concerns that have been expressed so powerfully by colleagues-to give this very careful consideration. The hour is not great but the House might be well advised to think carefully about this after the Minister has responded. I feel quite strongly that Amendment 40A may be worth considering voting on if we cannot get a response from the Minister that meets some of the concerns that have been expressed this evening.

8.45 pm

Baroness Lister of Burtersett: My Lords, in Grand Committee the question of the assessment period got a bit lost because there were so many issues that the Minister had to deal with. I asked the Minister why the assessment period was not included but never got an answer.

We talk about the time limit kicking in after a year but it is a year minus 13 weeks because for those first 13 weeks people affected will be paid at JSA rate, which is lower. Quite a number of us were confused, but the upshot was that the Minister said:

"I have to admit that I am not particularly happy about the assessment phase of ESA and how it is working ... I would like to look at it. It is difficult to have a set of principles around something that one is somewhat unhappy about".-[Official Report, 8/11/11; col. GC 46.]

I hope that the Minister has looked at it in the interim and has perhaps realised that there is no principled reason for the clause as it now stands and there is every principled reason for supporting the amendment. I hope that the Minister will see reason and it will not

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be necessary to test the opinion of the House in the way that the noble Lord, Lord Kirkwood of Kirkhope, was suggesting.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, I shall leap straight in on the issue raised by the noble Baroness, Lady Lister, on the assessment phase. What I was really alluding to was the upcoming sickness absence review, which is an important review of how we treat sickness absence. One of the things it has looked at is the interrelationship between sickness absence periods and the ESA regime. Basically the review sees no real reason for the assessment phase. As we look at this we must ask: are we structuring ESA and sickness absence so that it is a vulnerable or difficult process? I am sympathetic to my noble friend when he says that there might be a way through this. I want noble Lords to be aware that huge weaknesses have been found. We are pushing people through a process that puts them in limbo for a long period of 92 days or more. The sickness absence review states that that is deeply unsatisfactory, and I suspect that a lot of noble Lords in this Chamber who understand the system also believe that. In that area, I am not sure that this is genuinely the direction in which I want to go because I am not sure that it is something we want to maintain.

Moving on from that, let me set out some of the technicalities of the assessment phase. It usually ends after 13 weeks unless by that point there has not yet been a WCA determination. If a WCA has not been carried out by the 14th week, the assessment phase ends when a determination about limited capability for work has been made. So if the claimant's assessment phase lasts longer than 13 weeks and they are found to have limited capability for work or work-related activity, the payment of additional components is then backdated. That is the existing system, which I am not that happy with. The effect would be to exclude it in terms of counting to the 365 days, or at least the 730 days depending on where we are, but in practice it does not always happen within 13 weeks and we have a lot of disparity of treatment. Even if we were to stay with the regime, it would be a pretty messy system.

I know that noble Lords hate me when I go through figures, but let me give some-I shall do my best because these figures have been running around. Purely on this basis, there is a cost of an extra £430 million cumulative to 2016-17 over the five-year period. I shall try to make a quick off-the-cuff assessment of how much extra it is when we look at it on top of the two years, and it is not actually a hugely different sum. It is £200 million on the SR period and £400 million on the total period of five years. I know that noble Lords feel that hundreds of millions are easily obtainable, but it is not an insignificant amount of money.

Moving on to Amendment 40B, the effect of this amendment would be that for existing ESA claimants, the one-year time limit would be calculated from the date the clause is commenced, and none of the time already spent on ESA would count towards the 365-day total entitlement. I want to have a word about retrospection. The noble Lord, Lord McKenzie, used the word slightly freely and in fact slightly aggressively. I was upset but not ashamed. I can understand that

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noble Lords are unhappy that we are taking account of days before the clause is brought into account, but this is about the question of whether noble Lords feel that this is the right approach; it is not about retrospection. Retrospection involves interfering with a claimant's past entitlement and we are not doing that with this measure.

It is worth explaining what retrospection of time limiting would involve if we were to do it, which we will not. It would involve interfering with past entitlement to ESA. An example would be: at the date we commence the time-limiting provisions, if a claimant who had been receiving contributory ESA in the WRAG for 18 months, it would be retrospective if we demanded repayment of the extra six months of benefit he had already received because that would interfere with the claimant's past entitlement. We absolutely are not doing anything which is retrospective in that sense. We are redefining the terms on which claimants are entitled to ESA in the future.

Baroness Thomas of Winchester: My Lords, perhaps I may make a small point. Were claimants who were receiving ESA last April told by the benefits office or whoever pays their benefit that it might be subject to this one-year cut-off? I ask this because the Government had already announced it in their comprehensive spending review. Were claimants warned then? I know that they were sent a letter in September saying that their claim was likely to end this April if it had started in the previous April. However, were they warned in April 2011?

Lord Freud: My Lords, it was a reasonably well publicised announcement by the Chancellor. There was no formal process of warning afterwards. That process began, as my noble friend points out, in September. How much warning people had is an issue, but the essential fact is that we are redefining the terms for entitlement to ESA. That happens quite a lot. Examples of future changes to entitlement include, among others, changing the descriptors to the work capability assessment.

I understand noble Lords having concerns about the fairness of the measure. Again, fairness is a matter of achieving a balance in our policy, so that as many claimants as possible who are in the WRAG are entitled to ESA for the same period.

The noble Lord, Lord McKenzie, asked for figures. We expect that, by April 2012, around 100,000 people will have been receiving contributory ESA and been members of the WRAG for more than 12 months. If the amendment were accepted, we would have another substantial decrease in our savings forecast and a real problem.

Amendment 41A would enable claimants to start a fresh 365-day period if they moved from the support group back to the WRAG-I am not sure whether we are now talking about 365 days or 730 days, so let us leave that on one side for a minute. In practice, for those claimants moving between the two groups regularly-it is funny how, when things are encouraged financially, regularity seems to increase-the amendment would be likely to mean that they would be able to remain on contributory ESA indefinitely.



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We have always made it clear that, when addressing claimants in the WRAG, our aim is for as many people as possible to receive contributory ESA for the same period. This will be a period of 365 days on our original formulation and at least 730 days on the basis of the amendment that passed. Restarting that period each time a claimant moved from the support group to the WRAG would lead to inconsistent periods on benefit for claimants.

I accept the amendment that has just gone through, but, on the basis of the period-whether one year or at least 730 days-we do not think that we need to make any of these additional changes, particularly given their high cost in the current fiscal climate. I urge noble Lords not to press these three amendments. We do not consider them consequential upon each other.

Lord McKenzie of Luton: I thank the Minister for that reply and all noble Lords who have contributed to this short and rather interesting debate.

I suppose that whether something is retrospective depends on what one's definition is, but if somebody's entitlement was put in place at a certain time and under a certain set of rules, to have that entitlement restricted by subsequent legislation and to have the clock running from that earlier date would be, in most common parlance, retrospective. We can argue about the semantics all night and not change anything, but the way in which the Government have gone about this is particularly unfortunate.

I acknowledge the contribution and concerns of the noble Lord, Lord Kirkwood, and my noble friend Lady Lister over the assessment phase. My noble friend instanced the concern that the Minister expressed about this in Committee; I think that he has gone a little further today. As I understood it, he said that the assessment phase, when put in the context of a sickness absence policy, perhaps did not make a lot of sense. If that is the case, I presume that these issues will have to be addressed at some stage and some adjustment made to the process.

Rather than put us in a position where we would wish to test this issue by a vote-there is clearly a degree of support behind me on this and a strong degree of support on the Liberal Democrat Benches-can the Minister offer some comfort that there will be a chance to review this before we sign off the Bill? The consensus of those who have participated is that things are not satisfactory as they stand. Quite what would have to change in the light of any sickness absence policy which is developed would depend on where that policy is heading.

Certainly on issues of fairness, by taking account of the assessment period you are docking three months of someone's employment and support allowance. Most people would see that as being the period when you get the addition because you are in one of the two ESA categories and therefore the Government are restricting it to only nine months.

Lord Freud: Let me clarify that-I hoped I had. Clearly you may not know what category of ESA you are in but you receive the money for the full 12-month period once it is decided. So there is not a problem like that. It is not nine months; it is a full 12 months.



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On the question of what is to happen to the assessment phase, I will not be in a position by Third Reading, which is not far away, to give an answer. I am sure the noble Lord will have read the sickness absence review. It is an interesting piece of work which severely criticises the assessment phase. If we need to change it, we will give our response later this year. It is a substantial piece of work and it will take time to work through. It seems that it will become an area for regulations and if one is going to tie a lot of weight on this particular formulation it would probably be easier for the noble Lord to add another three months to his 24 months, if that is what he is trying to do. If it is a formulation of protection to add on another three months, it is not one that anyone would want to rely on for that reason.

Lord McKenzie of Luton: Tagging on three months is not the purpose of the amendment or of anyone who has spoken to this. There is concern about unfairness. The Minister said that you get the money from day one, but the point is that you get the money only at the basic JSA rate for the first 13 weeks. You do not get the enhanced funding that comes with the employment and support allowance when you are in either the not-fit-for-work group or not-fit-for work-related activity group. Those premiums do not kick in until after week 13. The Minister is frowning. Someone will correct me if that is wrong but I am getting support from the Liberal Democrat Benches.

I realise that we are not going to get definitive answers on any potentially significant policy development and change in the sickness absence report between now and Third Reading. However, rather than cause us to press this to a vote tonight, could not the Minister at least agree that we can have some further engagement between now and Third Reading to understand a little better the parameters of what is happening on sickness absence and how it might affect the assessment phase?

Seeking to press an issue that, given the hour and whose troops are available, we may or may not win would not be particularly constructive. People are trying to end up in the same place on this issue, which is very much the thrust of what the noble Lord, Lord Kirkwood, is saying, so could the Minister at least assure us of further engagement so that we can understand where this may be heading and the parameters within which it will be considered? Otherwise we move to Third Reading stuck with an assessment phase that we do not think is particularly fair and, in the Minister's own words, not particularly sustainable. That does not seem a very sensible position to be in.

I do not propose to press the amendments tonight on the other two issues, retrospection and not accumulating the time spent in the work-related activity group, but I am seriously minded to press the issue of the assessment period, because we could have further engagement on that that might be of benefit to noble Lords, some of whom may be more supportive of these measures than others. We are genuinely trying to help the Government, and if they do not want to be helped we might have to look at the alternative. Perhaps the Minister can help us.



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Lord Freud: My Lords, I am in a difficult position here. My view on the assessment phase is not going to have developed much further in the next two weeks. All I can say is that-well, let me just say what I would say in two or three weeks. I do not think that the assessment phase adds any value to the process; it puts people in limbo. It was meant to be a period in which people adjusted and settled down, and then they had their assessment. It does not seem to be working in that way at all, so we have had the very firm advice that we should get rid of the sickness absence review. If you want to be on ESA you apply for ESA, and if you pass the WCA you are on it, but you do not have all this messing around. That is what our firm advice was from an extraordinarily interesting and important piece of work, and that is where we will end up. If we start sticking other things on to a very shaky process that we want to get rid of, it does not seem a very useful thing to do at all.

Lord McKenzie of Luton: The Minister has advised us of an extremely helpful point. Would it follow that if the assessment phase disappeared, once the assessment had taken place and someone was assessed as being appropriate for putting into the WRAG or support group, the levels of funding under the ESA would kick in from day one? If they would, and that is the implication of what the Minister says, and the assessment phase went, that would be the difference between what we are facing at the moment and what might be the future. It would mean in effect that there would be no assessment phase and no period when people were paid at a lower rate than the work-related activity group component rate or the support group rate. If that is the case, we will not have quite the beef that we have at the moment with including the assessment phase.

The noble Lord has been helpful. We are just trying to see here and now how that formulation and prospect features in the Bill before us. At the very least, I ask that we agree to have another look at this, given what the Minister has said and that he is not going to be able to say anything much further between now and Third Reading, rather than having to take a decision on something tonight on which we would have only three-quarters of the information that we need. The Minister has been genuinely helpful, and we have to see how that translates into what we are considering.

Lord Freud: My Lords, I do not want to reopen this matter at Third Reading on the basis of things that I will have no further information on at all. That does not make much sense. The noble Lord is absolutely right that if we were to get rid of the assessment phase-and clearly that is something on which, as those who know how government works will know, we would have to do some work-it would be a big change. It would tie in with a lot of other changes, with work that we are going to be doing this year. We are utterly committed to this sickness absence review, which has been a very important document for us. My noble friend said that there was some value in using this assessment phase in this way in the future. I am trying to say that I do not think there is, because I would not want to put any weight on it. There might be other things that we can do to get out of a hole-if

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we are in a hole-but I honestly do not think that this is a promising line. I do not want to have this debate again at Third Reading. I have said everything I can on it, but I hope that I have said enough.

Baroness Lister of Burtersett: I apologise, but I wonder whether the Minister could say one more thing now so that we do not have to come back to it at Third Reading. If the assessment phase is done away with, clearly there is no issue. Given that the Minister himself is clearly suggesting that he would like to see that, would it be possible for him then to say whether, in the event that the assessment phase is not abolished, he would accept the spirit of this amendment now?

Lord Freud: I am clearly not in a position, and it would take more than a couple of weeks to get into a position, to make that kind of assurance. I know how skilfully your Lordships ask me these questions, and I deeply appreciate it, but I cannot do that. All I can tell the noble Baroness is that we have had a very powerful report on sickness absence, which I am personally very closely associated with and have sponsored. It made this recommendation, and most people in this Chamber who understand these matters would say that that is the way to go-as I would. Noble Lords must take their conclusions from that, but I cannot go much further or make promises on hypotheticals, because that is not how the system works.

Lord McKenzie of Luton: I understand the noble Lord's dilemma; he is creating a bit of a dilemma for us. Can we at least agree that if we do not press the amendment tonight we preserve the right to bring back the issue at Third Reading, while accepting that the Minister might not be able to say anything further? It would at least give those of us who are not as close as the Minister is to the detail of the sickness absence stuff and where that might be heading a chance to reflect on what that might mean for this; and in particular if there were to be a change-as the Minister seems to want-and the assessment phase went, how that would be accomplished within the framework of the legislation.

Lord Freud: My Lords, I do not think that I can do that. We need to take a view now on this. All I can say is that Third Reading is probably not the time anyway for some of this stuff to come to a head. It is not the point at which my noble friend is thinking about it coming to a head. This kind of thing will probably come to a head when we have the debate between the Commons and the Lords. That is when some of these issues need to be looked at, so it is not helpful or productive to think of it happening at Third Reading. This kind of thing may become more relevant at a later stage, but not at Third Reading.

Baroness Hollis of Heigham: Does the Bill contain power by regulation, or would the Minister welcome an amendment to introduce it so that at some point down the line, possibly after further consultation and so on, he can make the changes which at the moment he is minded to make but is not yet in a position to introduce?



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Lord Freud: Without having those in my ever helpful Box right behind me to respond to that-I hope that they are writing-my strong impression would be that I would have powers in regulation. No, my strong impression is the opposite. I am on my own.

Baroness Hollis of Heigham: Perhaps the Minister could write to us.

Lord Freud: I think I will owe noble Lords a letter. Thank you very much.

9.15 pm

Lord McKenzie of Luton: That was an extremely pertinent question. If in essence we can deal with this in due course when further analysis has been undertaken though regulation, that is fine; we would be happy to rest our case there. If the Minister is saying that primary legislation would be needed to deal with this -if that is the message coming from the Box-we are unlikely to have that opportunity for some little while.

Lord Freud: We are looking at the sickness absence review process, which is what this is about, and that is a substantial change that will need primary legislation. So I think my reply is to presume primary legislation.

Lord McKenzie of Luton: The Minister has not made this easy. I have been trying as best I can to avoid having a vote on this today.

Baroness Hollis of Heigham: If my noble friend will allow me, would the Minister be content if we were to introduce such a power by regulation at Third Reading, which would commit him to nothing or everything, according to how he wished to play it in future?

Lord Kirkwood of Kirkhope: Before whoever it is who is speaking sits down, I should say that I think that the Minister is making life difficult for himself. If he cannot take the advice that he is getting from all sides-and I, too, concur with what has been said-I, too, will look to get an expression of opinion from the House, which I really do not want to do. The suggestion that has been made about regulation-making powers is an easy out. I do not care what the Box thinks, actually; the Minister has the knowledge and the wisdom to take that decision right now, which would be a beneficial outcome for everyone.

Lord McKenzie of Luton: That has been helpful, as has been the intervention of my noble friend Lady Hollis, and I think that I can see a way forward. We do not need the Government's permission to introduce an amendment in due course to take a regulation-making power, so if there is not that opportunity at the moment we will find out between now and subsequent Report days or even Third Reading. I think that that is what we will do; it will be a route through this. On that basis, and with that preliminary notice to the Minister, I beg leave to withdraw the amendment.

Amendment 40A withdrawn.

Amendment 40B not moved.



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Amendment 41

Moved by Lord Freud

41: Clause 51, page 37, line 14, after "(1)" insert "or (2A)"

Amendment 41 agreed.

Amendments 41A to 42A not moved.

Amendment 43

Moved by Lord Freud

43: After Clause 51, insert the following new Clause-

"Further entitlement after time-limiting

(1) After section 1A of the Welfare Reform Act 2007 (as inserted by section 51 above) there is inserted-

"1B Further entitlement after time-limiting

(1) Where a person's entitlement to a contributory allowance has ceased as a result of section 1A(1) or (2A) but-

(a) the person has not at any subsequent time ceased to have (or to be treated as having) limited capability for work,

(b) the person satisfies the basic conditions, and

(c) the person has (or is treated as having) limited capability for work-related activity,

the claimant is entitled to an employment and support allowance by virtue of this section.

(2) An employment and support allowance entitlement to which is based on this section is to be regarded as a contributory allowance for the purposes of this Part."

(2) In section 1 of that Act (employment and support allowance), in the definition of "contributory allowance" in subsection (7), after "subsection (2)(a)" there is inserted "(and see section 1B(2))"."

Amendment 43 agreed.

Clause 52 : Condition relating to youth

Amendment 44 had been retabled as Amendment 45A.

Amendment 45 not moved.

Amendment 45A

Moved by Lord Freud

45A: Clause 52, leave out Clause 52 and insert the following new Clause-

"Condition relating to youth

In section 1 of the Welfare Reform Act 2007 (employment and support allowance), after subsection (3) there is inserted-

"(3A) After the coming into force of this subsection no claim may be made for an employment and support allowance by virtue of the third condition set out in Part 1 of Schedule 1 (youth).""

Lord McKenzie of Luton: This amendment was in the same group as the amendment on which the Government were defeated but runs contrary to the decision that the House made previously. The assumption is that this matter will not be pressed. Otherwise, the Government give us no alternative but to force a vote on it.

Lord Freud: Yes, my Lords, we would like to take this to a vote.



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9.19 pm

Division on Amendment 45A

Contents 132; Not-Contents 49.

Amendment 45A agreed.


Division No. 4


CONTENTS

Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B.
Attlee, E.
Benjamin, B.
Berridge, B.
Black of Brentwood, L.
Blencathra, L.
Boswell of Aynho, L.
Brinton, B.
Brooke of Sutton Mandeville, L.
Browning, B.
Byford, B.
Cathcart, E.
Cavendish of Furness, L.
Chadlington, L.
Chalker of Wallasey, B.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Crickhowell, L.
De Mauley, L. [Teller]
Deben, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Eaton, B.
Empey, L.
Faulks, L.
Fink, L.
Fookes, B.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Geddes, L.
Glenarthur, L.
Grade of Yarmouth, L.
Hamilton of Epsom, L.
Hanham, B.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Howe, E.
Howe of Aberavon, L.
Hunt of Wirral, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jopling, L.
King of Bridgwater, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Kramer, B.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lexden, L.
Lingfield, L.
Linklater of Butterstone, B.
Liverpool, E.
Loomba, L.
Luke, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Maddock, B.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Mayhew of Twysden, L.
Montrose, D.
Morris of Bolton, B.
Newby, L.
Noakes, B.
Northbrook, L.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Patten, L.
Perry of Southwark, B.
Popat, L.
Randerson, B.
Rawlings, B.
Rennard, L.
Ribeiro, L.
Risby, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Ryder of Wensum, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Shephard of Northwold, B.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Steel of Aikwood, L.
Stewartby, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tope, L.
Trenchard, V.
Trimble, L.
True, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Tyler of Enfield, B.
Ullswater, V.
Verma, B.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.


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Wasserman, L.
Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Willis of Knaresborough, L.
Younger of Leckie, V.

NOT CONTENTS

Bassam of Brighton, L. [Teller]
Bath and Wells, Bp.
Berkeley, L.
Best, L.
Bilston, L.
Blair of Boughton, L.
Boateng, L.
Borrie, L.
Browne of Ladyton, L.
Carter of Coles, L.
Craigavon, V.
Drake, B.
Elder, L.
Elystan-Morgan, L.
Foulkes of Cumnock, L.
Grey-Thompson, B.
Hayman, B.
Hayter of Kentish Town, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Hunt of Chesterton, L.
Hylton, L.
Kakkar, L.
Layard, L.
Lister of Burtersett, B.
McAvoy, L. [Teller]
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Masham of Ilton, B.
Mawson, L.
Meacher, B.
Morgan of Ely, B.
O'Loan, B.
O'Neill of Clackmannan, L.
Palmer, L.
Patel, L.
Patel of Bradford, L.
Prescott, L.
Rogan, L.
Sewel, L.
Sherlock, B.
Simon, V.
Taylor of Bolton, B.
Touhig, L.
Turner of Camden, B.
Wall of New Barnet, B.
Wigley, L.
Wilkins, B.
9.30 pm

Amendment 46

Moved by Baroness Lister of Burtersett

46: Clause 52, leave out Clause 52 and insert the following new Clause-

"Condition relating to youth

In paragraph 4 of Schedule 1 to the Welfare Reform Act 2007 (condition relating to youth), after sub-paragraph (1)(d) insert-

"(e) after the assessment phase has ended, the claimant has limited capacity for work-related activity.""

The Deputy Speaker (Viscount Ullswater): The Question is that this amendment be agreed to. As many as are of that opinion will say, "Content".

Noble Lords: Content.

The Deputy Speaker: To the contrary, "Not Content".

Noble Lords: Not Content.

Lord McKenzie of Luton: Forgive me-are we not dealing here with Amendment 46, which the Government have accepted is consequential on Amendment 36A?

Baroness Hollis of Heigham: My Lords, I was the person who drafted Amendment 36A. The noble Baroness, Lady Meacher, clearly introduced it as the paving amendment to Amendment 46. So the Government cannot do as they are now suggesting.

Lord Freud: My Lords, let me read out what I said in my speech. I said that I confirm that the Government

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see Amendment 46 as linked to Amendment 36A, but separate Divisions will be required on all amendments in this group.

Lord McKenzie of Luton: My Lords, the noble Lord does not make that happen just by asserting it. One amendment is consequential on the other. We have had a very clear and substantial vote on this, and it is quite disgraceful that the Government are seeking to undermine that.

Baroness Hollis of Heigham: I am sure that the noble Lord, Lord Freud, does not wish to appear to be subverting the view of the entire House, which was expressed in the full knowledge that the amendment which we voted on was devised-I devised it-as a paving amendment to a substantive one, so that we could debate it in good time. Most of the population of the House has gone home, believing in good faith that the previous vote has established the principle-as it has. However, the noble Lord is trying to renege on that by forcing a vote despite the late-night keeping of the roster. That would be quite improper and quite unprecedented, and I strongly suggest that he think again.

Lord Freud: My Lords, I cannot understand this. I was extremely clear, and have been really clear all the way through, about which amendments relate to which, and which have to be taken separately. I read out what I said. I said it quite loudly and all noble Lords heard it. I cannot feel that it is right to accuse me of anything but absolute clarity in the House.

Lord Bassam of Brighton: My Lords, this is somewhat unprecedented, and I am trying to be helpful here. The House is in danger of getting into a considerable muddle. I respectfully suggest to your Lordships that we should perhaps adjourn to try to sort this out, or perhaps come back to it when the House is in fuller session. I do not think that anyone on our side wants to accuse the Government of sharp practice, but that is certainly how it feels at the moment. That is not right or good for the reputation of the House. I ask the Minister to reconsider the course upon which he is currently embarked. Perhaps I may continue with a few more words, and perhaps the Minister will be enabled with a response that can help. I do not want the House to lose the respect that it has, and it should not be frustrated in the way in which the Minister is currently suggesting. My noble friend Lady Hollis made a very reasonable point earlier in addressing this issue. It would serve the Government better if they withdrew for a moment and paused to think about where they are going, so that we can better reflect and try to sort this out in the way that is usually in the House's best tradition.

Lord Freud: My Lords, I have thought more deeply and accept that the amendment is consequential.

Lord Bassam of Brighton: I thank the noble Lord for that moment's reflection, which does great service to your Lordships' House. I am very grateful to him.

Amendment 46 agreed.



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Clause 56: Claimant responsibilities for employment and support allowance

Amendment 47 not moved.

Clause 68: Housing benefit: determination of appropriate maximum

Amendments 48 and 49 not moved.

Clause 69: Ending of discretionary payments

Amendment 50

Moved by Baroness Lister of Burtersett

50: Clause 69, page 54, line 8, at end insert "providing those amounts are ring-fenced for the purpose set out in that Act"

Baroness Lister of Burtersett: My Lords, I hope that this debate will be a bit more straightforward than what we have just been discussing. The amendment aims to protect the ultimate safety net in our social security system by ring-fencing the money devoted to it when responsibility is devolved to local authorities without any statutory duties attached.

Clause 69 abolishes the discretionary Social Fund, described by Barnardo's as a lifeline for some of the poorest and most marginalised people in our society. Together with Family Action, to which I am indebted for its assistance, it is among many voluntary organisations looking to your Lordships' House to safeguard that lifeline. Indeed, 20 have this week written an open letter to the Minister. This is not the place to make the case against the abolition of the discretionary Social Fund; we rehearsed that in Grand Committee. Instead, it is up to us to ensure that when the discretionary Social Fund is abolished, the money allocated to local authorities and the devolved Administrations is used for the purpose intended.

The Social Fund was introduced in the late 1980s in place of a system of statutory payments to help some of the poorest members of society with one-off needs. At that time, the noble Lord, Lord Kirkwood of Kirkhope, and I were ranged against the noble Lord, Lord Newton of Braintree, who unfortunately cannot be with us this evening for health reasons. Today, we are trying to salvage something from the forthcoming wreckage of what we now acknowledge that the noble Lord, Lord Newton, achieved-one of life's ironies.

Through a system of community care grants and crisis loans, the discretionary Social Fund provides vital cash assistance to some of the most vulnerable members of the community. CCGs help people on out-of-work benefits to remain in or set up their own home, to retain their independence. We are talking, for instance, about young people leaving a children's home or foster care, people with chronic health conditions or disabilities who need aids and adaptations to allow them to live in the community-about one-third of recipients are estimated to be disabled-and women who have fled domestic violence. As one such woman said:



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"The community care grant meant such a lot. I had been in a refuge. I had very few possessions as I had to leave them all behind ...The CCG helped me make my flat into a home".

Crisis loans are interest-free loans payable where there is an immediate threat to health or safety-for instance fares when a child has to be taken to hospital or money to cover the cost of replacements following a flood or fire.

We accept that the discretionary Social Fund needs reform, but this is not reform, it is abolition with no guarantee that local authorities will pick up the pieces using the money allocated to them. The aim of the amendment is to write into the Bill just such a guarantee and thereby achieve the Government's aim of protecting the most vulnerable.

Experience suggests that without some form of statutory ring-fencing, there is no way to ensure that the money allocated to local authorities and devolved Administrations will be spent in the way that the Government and Parliament intend. That is not a criticism of local authorities but simple realism. Local authorities are already hard-pressed to meet all their statutory functions in the face of budget cuts. This pot of money could be very tempting.


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