This measure is particularly unfair to those who, through no fault of their own, have been caught by the hiatus that has been caused by the Court of Appeal saying that the regulations put forward by the Government were unlawful.

Lord Freud: Perhaps I may make absolutely clear the point about the numbers. There was a lot of comment from noble Lords opposite that the system would be overwhelmed by the numbers because people did not have legal advice and the system could not therefore cope. The point I am making is that that argument does not stand in the light of the rather small number of cases—between 1,500 and 2,000—that might come towards the First-tier Tribunal as a result of the Bill.

Baroness Hollis of Heigham: If I may intervene, approximately 500,000 sanctions were issued last year. Something like 3,500 or 4,000 of those cases went to appeal. That was last year, before this additional provision hits them. The Minister may wish to reconsider his statistics.

Lord Bach: My Lords, perhaps I may go back for a moment to the hiatus caused by the Court of Appeal decision. It means that those who stood to have the protection of the law as it stood at the time that they were sanctioned or due to be sanctioned will, if the Minister is right, no longer have that protection, merely because of the passage of time and because something has intervened that is absolutely no fault of theirs, but is, I am afraid, the fault of the Government. That seems to be against any British sense of fair play. I beg to test the opinion of the House.

25 Mar 2013 : Column 931

11.49 pm

Division on Amendment 2

Contents 43; Not-Contents 159.

Amendment 2 disagreed.

Division No.  2

CONTENTS

Bach, L.

Bassam of Brighton, L. [Teller]

Bilston, L.

Brookman, L.

Collins of Highbury, L.

Dean of Thornton-le-Fylde, B.

Donaghy, B.

Dubs, L.

Elystan-Morgan, L.

Farrington of Ribbleton, B.

Goldsmith, L.

Gould of Potternewton, B.

Grantchester, L.

Haskel, L.

Haworth, L.

Healy of Primrose Hill, B.

Hollis of Heigham, B.

Howarth of Newport, L.

Jones of Whitchurch, B.

Knight of Weymouth, L.

Liddle, L.

Lister of Burtersett, B.

McAvoy, L.

McIntosh of Hudnall, B.

McKenzie of Luton, L.

Maginnis of Drumglass, L.

Puttnam, L.

Quin, B.

Rooker, L.

Rosser, L.

Royall of Blaisdon, B.

Sherlock, B.

Smith of Basildon, B.

Soley, L.

Stone of Blackheath, L.

Thornton, B.

Touhig, L.

Triesman, L.

Tunnicliffe, L. [Teller]

Uddin, B.

Warwick of Undercliffe, B.

Watson of Invergowrie, L.

Whitty, L.

NOT CONTENTS

Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B. [Teller]

Arran, E.

Astor of Hever, L.

Attlee, E.

Barker, B.

Bates, L.

Berridge, B.

Black of Brentwood, L.

Blencathra, L.

Bottomley of Nettlestone, B.

Bridgeman, V.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browne of Belmont, L.

Browning, B.

Burnett, L.

Byford, B.

Caithness, E.

Cathcart, E.

Cavendish of Furness, L.

Chalker of Wallasey, B.

Clement-Jones, L.

Colwyn, L.

Cope of Berkeley, L.

Courtown, E.

Crathorne, L.

Crickhowell, L.

De Mauley, L.

Deighton, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Eaton, B.

Eccles of Moulton, B.

Eccles, V.

Eden of Winton, L.

Empey, L.

Faulks, L.

Fink, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Framlingham, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Goodlad, L.

Goschen, V.

Grade of Yarmouth, L.

Green of Hurstpierpoint, L.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Harris of Richmond, B.

Henley, L.

Heyhoe Flint, B.

Hill of Oareford, L.

Hodgson of Astley Abbotts, L.

Home, E.

Howard of Lympne, L.

Howe, E.

Howell of Guildford, L.

Hunt of Wirral, L.

Hussain, L.

Inglewood, L.

Jenkin of Roding, L.

Jopling, L.

King of Bridgwater, L.

25 Mar 2013 : Column 932

Kirkham, L.

Kirkwood of Kirkhope, L.

Kramer, B.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lawson of Blaby, L.

Leach of Fairford, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Linklater of Butterstone, B.

Loomba, L.

Lucas, L.

Mackay of Clashfern, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Marks of Henley-on-Thames, L.

Marlesford, L.

Miller of Chilthorne Domer, B.

Montrose, D.

Morris of Bolton, B.

Nash, L.

Neville-Jones, B.

Newby, L. [Teller]

Newlove, B.

Noakes, B.

Northbrook, L.

Northover, B.

Norton of Louth, L.

Oakeshott of Seagrove Bay, L.

O'Cathain, B.

Popat, L.

Randerson, B.

Rawlings, B.

Ribeiro, L.

Ridley, V.

Roberts of Llandudno, L.

Roper, L.

Ryder of Wensum, L.

Sanderson of Bowden, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharples, B.

Shaw of Northstead, L.

Sheikh, L.

Shephard of Northwold, B.

Shutt of Greetland, L.

Skelmersdale, L.

Spicer, L.

Stedman-Scott, B.

Stephen, L.

Stewartby, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strasburger, L.

Strathclyde, L.

Taverne, L.

Taylor of Holbeach, L.

Thomas of Gresford, L.

Tope, L.

Trefgarne, L.

Trimble, L.

Tugendhat, L.

Tyler, L.

Ullswater, V.

Verma, B.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Warsi, B.

Wei, L.

Wheatcroft, B.

Wilcox, B.

Younger of Leckie, V.

12.01 am

Amendment 3 not moved.

Clause 1 agreed.

Clause 2 : Report

Amendment 4

Moved by Lord McKenzie of Luton

4: Clause 2, page 3, line 34, at end insert—

“( ) A report under subsection (1) will include, but not be limited to, information on the following—

(a) the number of penalties imposed, the type of failure for which they were imposed and the duration of such penalties;

(b) the number of demands for reconsideration and the number of subsequent appeals;

(c) the effectiveness of the appeals process;

(d) the number of penalties imposed upon claimants in receipt of Employment and Support Allowance;

(e) whether sanctions originate from a Work Programme Provider or JobCentre Plus;

(f) the extent to which claimants understand the reasons for penalties being imposed upon them;

(g) the extent to which sanctions are being promoted and whether targets are being applied in relation to penalties;

(h) the support available for claimants upon whom a penalty has been imposed, and what additional support such claimants are seeking;

25 Mar 2013 : Column 933

(i) how penalties are being applied to those with a mental health or other fluctuating health condition;

(j) the effectiveness of the hardship and mitigation provisions;

(k) the effectiveness of sanctions in changing claimant behaviour; and

(l) the application of the public sector equality duty.”

Lord McKenzie of Luton: My Lords, in moving Amendment 4 I will speak also to Amendments 5A and 6. I look forward to hearing from my noble friend Lady Lister on Amendment 5 and what appears to be a very worthy extension of the scope of the promised review and report, which we can also support. Amendment 4 relates generally to the criteria for Clause 2, and Amendment 5A has been tabled with the strong support of the shadow Secretary of State following press revelations of the existence of sanctions targets and league tables operating in London. It insists that the review specifically report on this matter.

Clause 2 brings some redemption to what is otherwise a deeply unsatisfactory Bill. The clause exists because of the perseverance of my right honourable friends Stephen Timms and Liam Byrne in another place and gives us the hope that at least something positive may yet come from this débâcle. The clause requires the appointment of an independent person to prepare a report on the operations relating to the imposition of penalties. The sanctions which are in scope for the review are those imposed for failures in the period from June 2011, when the defective regulations were first introduced, until February 2013, when the Court of Appeal judgment was delivered. We are told that the sanctions involved amount to around 25% of all JSA sanctions, which is clearly a minority of such sanctions. For those both delivered and withheld, covering the ESE and MWA programme, this amounts to in excess of 300,000 sanctions, mostly relating to those assigned to the Work Programme. The huge growth in the number of sanctions and the amounts involved—on average some £600 for ESE sanctions and £800 for MWA sanctions—are real causes for concern. There are suggestions that the growth of sanctions is a significant cause of the proliferation of food banks.

Recent revelations about targets and league tables are deeply worrying and reinforce concerns that the sanctions regime is being used to control benefit expenditure rather than for its proper purpose of supporting conditionality and changing behaviour. Ministerial denials will cut no ice until these matters have been fully and speedily investigated. We would be appalled if the reports of the suggested behaviour were true, as they would demonstrate not only that a climate of fear is being created within jobcentres but that staff are being actively encouraged to refer customers for sanction, especially to fine customers that they can claim are not fully available for work if they make mention of looking after a grandparent or having informal arrangements sharing custody of children. Jobcentre Plus is supposed to support vulnerable people, not try to trip them up on technicalities.

The review should also cover what management statistics are routinely kept and what use these are put to. At what point of it all are statistics around appeals on reconsiderations subject to any comparison, either

25 Mar 2013 : Column 934

intra a Jobcentre Plus area or between areas? Are the data broken down into individual decision-makers and matched against appeal performance? Do these form part of any discussion at appraisal time for individuals? Noble Lords will recognise that it is not even necessary to have formal targets to create a culture where these issues are seen to matter.

At Second Reading the Minister said:

“I have heard today concern from Peers about how DWP issues sanctions to JSA claimants more generally. I would like to make it clear that the department will discuss with the Opposition the terms of reference of the sanctions review”.—[

Official Report

, 21/3/13; col. 756.]

This is to be welcomed. Can we take it from this that the review need not be limited just to those sanctions identified above? Of course, a discussion with the Opposition does not necessarily mean agreement, which is why we have particularised, in Amendment 4, specific questions posed by the right honourable Stephen Timms in another place. We have added to the list the important matter which my noble friend Lady Lister spoke to at Second Reading concerning the public sector equality duty. I am sure that my noble friend will pick up that issue shortly and expand on her telling intervention that the Government know that they are treading on thin ice on this matter. It is too late for this legislation to be able to benefit from the scrutiny of the JCHR, which makes it imperative that it is covered by the review.

The items included on the list are for the most part self-explanatory and have been discussed numerous times before. However, now is the time to have an independent assessment of what is actually happening in practice. These include how penalties are being applied to those with a mental health condition, or rather fluctuating health conditions, which has been a longstanding concern under this Government and, to be fair, under the previous one as well. As we need to know how in practice the sanction and hardship provisions are really affecting people’s ability to survive, it is important that the review and report are thorough and that sufficient time is available to do the job effectively. However, this should not preclude an interim report, which is what Amendment 6 suggests.

This is fast-track legislation which we now have very limited time to consider further. The independent review was an important consideration for us in our approach to this Bill and we need to nail this down as tightly as possible tonight. Paragraphs (a) to (l) of the amendment must be deliverable, and if the Government are approaching this in a spirit of co-operation it really should not present them with a problem. Will the Minister commit now to these being included in the terms of reference for the review?

Above all, however, we need to be certain that we get to the bottom of the alleged existence of targets and league tables, which is why Amendment 5A is essential. If the Government are committed to their mantra of low targets, they should have common cause with us in accepting this. If they want to tidy the wording for Report, then so be it. I beg to move.

Baroness Lister of Burtersett: My Lords, I rise to speak to Amendment 5 as well as in support of Amendment 4, moved by my noble friend Lord McKenzie

25 Mar 2013 : Column 935

of Luton. Amendment 5 complements and amplifies Amendment 4. The point behind it is that the sanctions in scope of the review established in Clause 2 of the Bill represent approximately only a quarter of all JSA sanctions imposed over the relevant period.

If we are to understand how the sanctions regime is working, the review needs to set the narrower group of sanctions in the scope of the Bill into the wider context of the operation of sanctions more generally. I have tried to make sense of the sanctions statistics, and it seems that there has been a massive increase since March 2010 in the number of fixed-length sanctions applied in relation to work-related programmes, and a smaller increase in other varied-length sanctions, albeit in both cases with some month-to-month fluctuations.

The review needs to help us understand what lies behind these statistics in the round. The sense that I am getting from voluntary organisations working in the field is that there is a growing concern about the general operation of sanctions. I am particularly grateful to CPAG and SPAN for the information they have sent me at very short notice.

I do not propose to pursue the question of whether or not jobcentre staff are being set sanction targets. My noble friend Lord McKenzie of Luton has already addressed that point admirably. However, I want to say something about the wider culture that is giving rise to such claims. It has been brought to my attention that some jobcentres are pursuing a practice of “botherability”, which includes bringing in claimants at weekends. CPAG sent me the example of a client of the CAB in the north of England.

The client is a lone parent with two children aged eight and six. The eight year-old has reduced hearing and gets low-care DLA. The client is claiming JSA, housing benefit and council tax benefit. She received a letter at the start of March 2013 calling her into the jobcentre for a compliance meeting a few days later, at 9.30 am on a Sunday, which was Mother’s Day. She asked for a different date but was told that her benefit could be sanctioned. She decided to go to the interview as she could not afford not to, but her two little girls were very disappointed as they were planning a treat for her on Mother’s Day morning. She has been on JSA for six months and says that she has jumped through all the hoops. Last week she said that she had applied for 22 jobs. She does not understand what she has done or not done that has necessitated a compliance interview, especially on Mother’s Day. She says she is pretty disgusted with the way that claimants are treated—can your Lordships blame her? I would be grateful for the Minister’s comments on such practices. Is he aware of them? Does he condone them?

It seems to me that whether or not formal targets are operating, such practices are indicative of an oppressive culture that is aimed at punishing claimants rather than helping them to find work. The point has been made to me that in assessing the overall impact of sanctions we need to be looking at those cases not just where sanctions have been applied but where they have been threatened, sometimes inappropriately; in other words, when claimants have been led to believe that failing to do something is a sanctionable offence when it is not.

25 Mar 2013 : Column 936

I wish to focus on the paragraphs of Amendment 4 that deal with mental health conditions, the effectiveness of hardship provisions and the application of the public sector equality duty. Mind has argued that the incentive structure represented by conditionality and sanctions in back-to-work support for people with mental health problems is a misplaced and counterproductive response to the barriers they face. It cites recent DWP research which found that some staff believe that conditionality and sanctions are not useful or appropriate for some groups of participants, including people with disabilities or addiction problems, and some staff acknowledge that the stress that can be caused can be counterproductive in terms of claimant engagement, which also has implications for paragraph (k), which concerns,

“the effectiveness of sanctions in changing claimant behaviour”.

Mind cites a number of service users who have been in contact. I will take just two examples. The first is:

“I got a nasty letter which said my benefit was at risk because I didn’t attend an appointment and I had to give a really good explanation within a week or my benefit would be cut. It quoted all these regulations I broke. I freaked out because I couldn’t understand what I hadn’t done … It turns out there was a mistake”.

Another example is:

“I was made very anxious and sleepless by what I perceived as threatening letters and terms from Jobcentre Plus and A4e. I became depressed because I could see that my hopes to return to work were being made unrealisable by this route”.

Let us put ourselves in the shoes of these people and imagine how stressful it must be for anyone, never mind someone with a mental health problem, to be treated in that way. Further examples can be found in evidence submitted by Citizens Advice Cymru to the ongoing Welsh Affairs Committee inquiry into the Work Programme. A number of them are where there was failure to take account of mental health problems as good cause for non-compliance—an issue to which we will return when debating Amendment 7.

A 20 year-old female sought advice from a CAB in south Wales. She had missed four appointments and was sanctioned. She suffers from periodic depression and memory problems and relies on her social services support worker to remind her of appointments. On these occasions, the support worker failed to do so. She could not apply for a crisis loan as she had been sanctioned, and she has no money at all. She is also worried that she will lose her accommodation.

12.15 am

Citizens Advice Cymru has also raised concerns about the effectiveness of hardship provisions once a claimant has been sanctioned. It observed that,

“according to our evidence, claimants are almost always financially destitute after a sanction and have very few choices in terms of financial support”.

In their experience,

“unless claimants are deemed particularly ‘vulnerable’, they will not usually get hardship support and will be left to rely on charitable support instead—such as food vouchers. Further, most food parcel providers have a limit on how many parcels they can distribute to … one person within a given timeframe, so this support is very limited”.

25 Mar 2013 : Column 937

More generally, the word is that people are increasingly turning to food banks because of sanctions, but again those can do no more than provide a temporary sticking plaster.

When we debated the universal credit regulations, my noble friend Lady Hollis and I raised a number of concerns about the new hardship provisions, which are much more restrictive than those that have operated previously. I asked the Minister why hardship payments will now be recoverable, thereby potentially causing further hardship, and how claimants were going to be expected to prove that they had ceased to incur expenditure not deemed to be on essential and basic needs by the department, as they will now be required to do. In his helpful letter to my noble friend Lord McKenzie, in which he responded to questions he had been unable to answer in the debate, the Minister answered neither of those questions, so I would be grateful if he could do so now. It is pertinent to this discussion because he justified the new rule on what claimants would be allowed to spend their money on, on the grounds that it,

“ensures that there is protection in place for those who need it without undermining the deterrent effect of the sanction regime”.

As part of the review of the operation of sanctions under Clause 2, it would be helpful to have the evidence that hardship payments have been acting as such a deterrence.

I turn now to the final proposed subsection in Amendment 4, the application of the public sector equality duty. The importance of this issue was brought home to me by reading a report by Laura Dewar of SPAN. In it she observes:

“For single parents, and those organisations that represent their interests, it is unclear how DWP and Jobcentre Plus are complying with the new public sector equality duty. Jobcentre Plus have withdrawn the specialist help of Lone Parent Advisers to single parents, which was a provision that”,

the Equality and Human Rights Commission,

“originally cited as indicating Jobcentre Plus compliance with the gender equality duty”.

She also points to a lack of clarity as to how Work Programme providers are supposed to comply with the duty. The report goes on to argue:

“If the Work Programme is to address the needs of single parents and their children, as is required by the public sector equality duty, then there needs to be more consistent practice across providers. The monitoring and evaluation of the Work Programme needs to prioritise this. If not there is a danger that the Work Programme will not work for single parents and their disadvantage and inequality will be even more acute”.

For the same reasons, it is crucial that the review established under Clause 2 prioritises the application of the public sector equality duty. As it is a year since the report from which I quoted was written, I contacted Ms Dewar to see if she could update me. She replied immediately that she was very worried about sanctions. The briefing she wrote me, for which I am very grateful but to which I cannot do full justice, was disturbing. It does not purport to be a comprehensive study but the information she gives raises warning bells. In short, it concludes: that some lone parents are being sanctioned as a result of their caring responsibilities; that little account is being taken of the well-being of their children or of the application of the public sector

25 Mar 2013 : Column 938

equality duty; that threats of sanctions are not helping these parents move into work; that jobseekers’ agreements do not always take account of flexibilities, can be inconsistently applied and can be unrealistic and hard for parents to comply with; and that parents are too often denied the necessary flexibility in the work they are expected to obtain.

SPAN is hearing of unreasonable jobseekers’ agreements—for instance, one that states the lone parent must work from the moment she drops off her child at school to the moment she picks her up, or a number where lone parents of young children are being required to seek full-time work because of a lack of availability of part-time work. She cites a posting on SPAN’s online forum:

“I am a single mum to a 8 yr old who is doing well at school and he loves his life. I would never burst his bubble but I am on a work programme and under the threat of a sanction where I am to lose all JSA for a set number of weeks (I am to be notified by post) as I've sent a reply stating why I think it's unfair. I feel so useless and overwhelmed by the whole situation and my confidence packed its bag and upped and left. The sanction is over a missed Thursday 9 am appointment. My next appointment is 3 pm on a Monday. My advisor is well aware”—

Baroness Royall of Blaisdon: My Lords, if I might intervene, there are several noble Lords in the Chamber who from a sedentary position keep saying that this is ridiculous. The only ridiculous part of the debate this evening is the fact that we are debating such a serious issue at 12.20 am, and we should be allowed to hear my noble friend in peace.

Baroness Lister of Burtersett: I thank my noble friend, particularly as I am quoting from a lone mother who is very upset. She says:

“The sanction is over a missed Thursday 9am appointment. My next appointment is 3pm on a Monday. My advisor is well aware that my son is at school for 8.50 am, it takes 25 minutes to get to WP, I collect my son at 3.15 pm yet I’m expected to attend at 3pm for 30 mins. So I’ll be taking him out of school at 2.30pm. I want to help him do well at school, attendance is a high priority of mine”.

Here we have the threat of sanctions demoralising a lone mother who is trying to do the right thing by her son. How making her feel useless and overwhelmed is going to help her in her jobseeking is a mystery to me.

As I have said, I have not been able to do full justice to the briefing that SPAN sent me. I therefore suggest that it be invited to submit evidence to the review established under Clause 2. Indeed, what provision will be made to enable outside organisations with experience of what is happening on the ground to feed evidence into the review?

Of course, the public sector equality duty is not just about lone parents. An international review of the evidence about the operation of sanctions within conditional benefit systems, conducted for the Joseph Rowntree Foundation a couple of years or so ago, warned that evidence suggests that the administration of sanctions is not rational and equitable. The studies conducted in the US have identified racial bias in the imposition of sanctions.

At Second Reading the Minister emphasised that,

“we are trying to design a much more flexible welfare system in which we individualise responses”.—[

Official Report

, 21/3/13; col. 753.]

25 Mar 2013 : Column 939

It is difficult to quarrel with flexibility and individualisation, but the downside is that they leave greater scope for discrimination, in the negative sense of the term, and they can undermine rights. It is therefore all the more important that the sanctions review allows us to judge whether the administration of sanctions is indeed rational, equitable and consistent with the public sector equality duty.

The Government’s willingness to discuss the terms of reference of the sanctions review with the Opposition is, of course, welcome. I hope therefore that the Minister will accept Amendments 4 and 5, in the interests of ensuring that the review is as thorough and informative as it needs to be, and that the Government will express a willingness to take evidence from organisations on the ground.

Lord Kirkwood of Kirkhope: My Lords, as far as I am concerned this is an important debate on an important amendment and, indeed, it is an important suggestion that we should have a review of the sanctions regime. Most colleagues already know this, but I am a non-executive, non-remunerated director of the Wise Group, an intermediate labour market provider in Glasgow that is subcontracted to the Work Programme, so I have had experience of some of these matters. There are difficulties that need to be ironed out and I hope that this review will take the opportunity to do just that.

I strongly urge my noble friend on the Front Bench to pay careful attention to what is being said, although I think that the amendment is a little ad longam to put in a Bill. I am with the noble Lord, Lord McKenzie, in spirit, but I am not sure that the amendment is necessary. I think that we get the point that he is trying to make—I certainly do.

To the need for a review in this amendment I would add the question of the costs, which have been calculated as a maximum of £130 million. At the risk of being pedantic at this time of night—and I apologise to the House—I refer the Minister to page 6 of the impact assessment and Annexe A on the methodology of the calculation. Paragraph 18 describes the total value of the money allegedly at stake in this Bill. Frankly, I cannot understand it, but that may just be the hour of the morning. It states that the total value equals the number of sanctions multiplied by the number of weeks, although, in passing, I have to say that sanctions are variable in weeks—they are not all fixed-week sanctions, so I do not know quite how you can multiply by a number of weeks when they vary. That is multiplied by the percentage of cases of under-25s multiplied by the rate for under-25s and the percentage of cases of over-25s multiplied by the rate for over-25s. However, the final clause puzzles me, because that total value is,

“multiplied by reduction due to successful appeals and hardship”.

You have a multiplier multiplied by a reduction. Either my arithmetic is not good, which it is not, or the language in that paragraph is wrong. If the language in that paragraph is wrong, I would like to be told, because that is what we are being invited to consider as the potential cost to the taxpayer as a result of these changes. If the impact assessment has not got the methodology of the calculation correct, it would be good to know.

25 Mar 2013 : Column 940

My other point is about recompliance. My experience in the Wise Group is that although many of these sanctions are originally set at, say, 26 weeks, the participant in the programme gets the message that they are going to lose out rather quickly and they come back into compliance. They are therefore reduced from a 26-week penalty to a four-week penalty as a matter of course. I do not know to what extent that is factored into the calculation of the total value. There are a number of methodological problems that I do not understand. One of the things that this report should do—I am not suggesting for a moment that we need answers to all these things this evening—is to look carefully at exactly what the total amount at stake in this Bill is. We look forward to getting that confirmed one way or the other.

Briefly, my view is that the Work Programme was introduced with indecent haste. The flexible New Deal programme was in the middle of its operation and in 2010, in a very short space of time, everything was changed. I understand the need to take away everything that went before, but everyone I now talk to tells me that the loss of corporate knowledge is a difficulty in working with the department. A lot of serious and expert people are no longer in the positions that they had. Bringing this programme in so early and losing such a lot of corporate knowledge over a short space of time is bound to lead to symptoms and consequences of this kind.

Part of the problem generated by these sanctions is that the notices that are given to participants in these programmes are often handled not by prime contractors but by subcontractors. I do not believe that some of them are authorised by the Secretary of State as they should be under the Jobseekers Act 1995, which is part of the reason why some of these notices are not detailed and informative. Therefore, it does not surprise me that the court took the view that it did. That is something that this review should be looking at as well.

Finally, one thing that I am clear about from my Wise Group experience is that a lot of participants in these courses do not appeal against sanctions because they cannot do without the benefit for the duration of the pending appeal—it is a serious loss of money to them. I hope that this will be investigated in the review, but we really need to look at whether the sanctions are being properly scrutinised in terms of the numbers who go to appeal. I think that people just throw in their hand because they cannot afford to do anything else.

In conclusion, there is a lot of important work to be done. I hope that the review will be serious in undertaking that work and making the results and conclusions available to the rest of us so that we can get this sanctions regime better adjusted for future use in the jobseeker’s allowance regime.

12.30 am

Lord Freud: My Lords, I will address Amendments 4, 5, 5A and 6 together. The purpose of these amendments is to place in the Bill detailed requirements for the independent report set out in Clause 2.

I should be clear that Clause 2 provides for an independent review of the operation of provisions relating to the imposition of sanctions which would,

25 Mar 2013 : Column 941

without this legislation, be unlawful. The amendments could be seen to imply a much wider review; it is not a full review of the operation of sanctions, although clearly there could be wider relevance. At least one of the things covered in the amendment is not within the scope of the Bill: paragraph (d) asks about the number of penalties imposed upon claimants in receipt of employment and support allowance. I can answer that today, as the Bill is only concerned with JSA claimants.

The Government are happy to consider a wide range of areas for the review, but it would be unhelpful to lock down the terms of that review at this stage. Despite my earlier comments, the amendments list a number of areas the review could usefully consider. I am happy to confirm what I said on Thursday, and give a commitment that we will discuss further with the Opposition the scope of the review. Within that process, we can look at the point raised by the noble Baroness, Lady Lister, on provision for outsiders.

Amendment 5A would ensure that the independent reviewer makes an assessment of the extent to which senior managers in Jobcentre Plus have used targets in the operation of sanctions. This amendment is completely unnecessary. There are no targets for sanction referrals. The Government have made a point of removing the vast majority of targets within Jobcentre Plus. It is regrettable that loose drafting of an internal e-mail suggested otherwise. If noble Lords look at sanctions, there is no clear trend in the proportion of the caseload who receives them. Prior to 2007, the rate was running at around 4%; since then it has fluctuated between 3% and 5%. There is not the clear trend in the growth of sanctions which some people have been claiming.

Baroness Hollis of Heigham: My Lords, I do not doubt the Minister’s honesty and integrity in his statements about targets at all. However, the staff clearly do not believe him. It is clear from the evidence that we have seen—the leaked e-mails and all sorts of other examples coming to Members of Parliament and so on—that the staff in local offices believe, because they are told by their managers, that they have to increase the number of sanctions. In the e-mail, the manager of the particular jobcentre was criticised and told that she would be subject to first-stage disciplinary hearings because that office was something like 93rd out of 101 in sanction production; they should have been producing something like 25 a week and were only producing four or six a week. Therefore: “Guys, we should raise our game”.

The e-mail was not loosely drafted. It was very precisely drafted; we have all seen copies of it. That e-mail, from someone senior in the office to their staff, made it very clear that if they did not increase a number of sanctions, they, too, would be involved in a disciplinary process. That is believed by those staff and by staff across the country. I do not doubt the Minister’s word, or that he does not intend that to be the case. What is he going to do, therefore, to ensure that local offices no longer behave in this way?

Lord Freud: My Lords, let me make very clear the difference between having targets, having business or management information, and doing something with

25 Mar 2013 : Column 942

that information. Clearly, you collect these data not just to answer parliamentary questions but to run the business. It is used to look at where there are outliers and peculiarities, and what the norms are. When a particular jobcentre may be well outside the norm on either side, you might want to ask it why that was the case. Was it justifiable, and what were the dynamics of that? In some cases you are clearly looking at particular parts of the operation that are not operating in line with the norms. That is not having a target culture. A target culture—as the noble Lords opposite will know, because they were running one in many parts of the public services—is where you incentivise and drive performance based on particular targets. We do not do that. We do not have targets. We do, however, have management information and, as I say, we need to understand why outliers exist.

Baroness Hollis of Heigham: My Lords, will the Minister explain why this senior staff member—the manager of the office—told the staff underneath her that unless they increased the number of sanctions she would be subject to the first stage of a disciplinary procedure, and that that, in turn, would mean that she would have to discipline them? How does he explain that?

Lord Freud: My Lords, I am not going to pick up a particular case because I do not have the detail on it. It would not be appropriate for me to hazard a guess on what was behind a particular e-mail or a particular concern.

Lord Touhig: My Lords, I hear what the Minister has said, and he is held in high regard across the House. In view of what my noble friend Lady Hollis has said, will he therefore initiate an investigation into how this memo came about? Will he come back to the House to explain what action the Government are taking on this? Somebody is clearly acting against government policy, and it should be stopped.

Baroness Hollis of Heigham: Will the Minister also, therefore, ensure that all DWP local offices receive the same information—that this is to be deplored?

Lord Freud: My Lords, I must repeat what I have just said. Clearly, we have internal management information. It is vital that we keep it, and we publish a lot of it. We need to understand why some areas, some jobcentres, have higher rates than others and why some have lower rates. Some may have very good reasons for having lower or higher rates, while others may not. We therefore need this information to correct the anomalies, and that is normal business practice. It may be that in particular cases a jobcentre manager is told, “You are running very high or very low figures, and you cannot justify the reason for that, so you need to get more into line”. It may happen. I have not got the particular details.

Baroness Hollis of Heigham: In that case, what is the difference between coming more into line and targets?

25 Mar 2013 : Column 943

Lord Freud: The noble Lords opposite know exactly how targets operate because they operated a target regime. Targets are when people are incentivised to perform to particular figures.

Baroness Hollis of Heigham: What if they are incentivised by the threat of being punished?

Lord Freud: They are usually incentivised to reach targets, and we do not run a target regime. The no-targets message has gone out repeatedly.

Baroness Farrington of Ribbleton: My Lords, I fail to understand the Minister. Surely if someone is asked to regulate their business, as he calls it, in order to get to the norm, what is the difference between that and a target?

Lord Freud: The difference is that where someone is not performing in line with the rest of the business for no good reason—in other words, where there is nothing different in the underlying constituency of the business—they are not operating the business in line with the standards that we have. That is entirely different from having targets, because it is understood that no figures are going out with instructions to achieve something. The message that there are no targets goes out repeatedly to jobcentre managers; there has been a reminder from the Work Services Directorate that there are no targets; and we will investigate if people have misunderstood that approach.

Baroness Hollis of Heigham: My Lords, this is pivotal. This is Committee.

Baroness Stowell of Beeston: It is Committee, but the Companion guides us by stating that, during any stages:

“Lengthy or frequent interventions should not be made, even with the consent of the member speaking”.

My noble friend is very tolerant and I know that he will keep responding to interventions. However, the hour is late and there have been several interventions.

Baroness Farrington of Ribbleton: My Lords, this is Committee. Many of us are deeply distressed about the Bill. To seek to curtail a discussion where clearly the Minister is saying that people will be asked to comply with a norm if they have no good excuse not to, is to my mind—and, I suspect, to the minds of other noble Lords—little different from a target.

Lord Freud: My Lords, I have answered the question. I will re-emphasise that we do not have targets, we have management information. I may not have convinced noble Lords on the other side, but they should be very familiar with running targets because that is how they tried to run the economy. We do not run targets because they create perverse behaviours. We collect information in this area, not least because it is required for public purposes. Furthermore, we need to run a business and we need to understand what different areas are doing in order to do that.

Referrals for sanctions are made on the merits of each case. Decisions on sanctions are based on evidence presented that is independently reviewed by decision-

25 Mar 2013 : Column 944

makers. The fact that only three-quarters of decisions made are upheld by these decision-makers proves the robustness of the process. Furthermore, there is an independent appeals process against decisions, so even if a target regime were in place, which it is not, claimants who were wrongly sanctioned could successfully appeal.

The flexible business model means that managers need to understand the reason for outliers. While differences can be for good reasons such as local labour market conditions, senior managers need to monitor the overall situation in order to spot and correct anomalies.

Given what I have said, it would be odd to require the independent report to cover a sanctions target that does not exist. However, we are happy to give reassurances that we will make clear the position in respect of targets and league tables. I have done my best today, but clearly more may need to be done for some noble Lords.

Lord Rooker: At the risk of upsetting the Whip, I have a question. The Minister does not seem to have addressed one of the examples given by my noble friend. Will he give a personal guarantee that no office will open and call people in on Easter Sunday? How many offices are opening on Sundays? Are they in England, Wales and Scotland? What is the policy of offices opening on Sundays to call in people in the way we heard in the example earlier on? He must address that because this is obviously something quite new.

12.45 am

Lord Freud: My Lords, I do not have the information on Sundays, particularly Easter Sunday. The underlying issue is compliance checks using different days for attending the jobcentre, which are an important element of Jobcentre Plus’s toolkit to combat benefit fraud and confirm conditions of entitlement to benefit. That can include asking claimants to attend a jobcentre on a day other than their normal signing day. That is not something that is different under this Government.

Baroness Lister of Burtersett: I am sorry to intervene, but does the Minister think it is reasonable to ask a mother to come in on Mothering Sunday?

Lord Freud: My Lords, clearly, I cannot talk about examples when I am not familiar with the particular example. It may have been a strategy. As I said, there is a general strategy to prevent non-compliance by using the device of asking people to come in on different days. Sometimes people are asked to come in on every day of the week. The example I am thinking of is the five workings days, but I have seen examples of that. I saw that example under the previous Government to be honest. I do not know why noble Lords opposite are looking aghast as this was absolutely standard procedure under the previous Government and nothing has changed. It was standard procedure and has been maintained because it works in areas where we are concerned about benefit fraud.

On Amendment 4, it is worth noting that for sanctions more broadly much of the information that the noble Lord, Lord McKenzie, sets out in his

25 Mar 2013 : Column 945

amendment is already published by the department. For example, we have published, and will publish every six months, tables setting out the number of sanctions issued and the number of reconsiderations and appeals. The latest figures published for employment, skills and enterprise schemes and mandatory work activity show that up to October 2012 around 170,000 sanctions were issued. There were just over 50,000 reconsiderations, with claimants being successful in just over half of them. Following this there were about 5,000 appeals to the First-tier Tribunal, with claimants being successful in around a quarter of them. I hope that gives enough reassurance to the noble Lord and the noble Baroness that the independent review will be comprehensive and in the spirit of Clause 2. I therefore urge them to reconsider the position and not press their amendments.

The noble Baroness, Lady Lister, raised a point on hardship and the new hardship regime. The new hardship regime will not apply to these jobseeker allowance claimants. It will come into effect only when universal credit is in place. The lone parent’s caring responsibilities are taken into account when setting work search requirements. In the example used by the noble Baroness, they can be used in citing a good reason for non-compliance.

I turn now to the linked Amendment 6, the purpose of which is to ensure that there is an interim report on the operation of the provisions relating to the imposition of a penalty, as well as the report after 12 months that the Bill already requires. I am as keen as the noble Lord, Lord McKenzie, that the review is expedited and we will endeavour to complete it as quickly as possible. However, it may help if I set out why an interim report would be unhelpful in providing a complete picture. A claimant who has a sanction imposed on them has 13 months to bring an appeal against that sanction, so by imposing a six-month deadline for an interim report we would miss those appeals made at a later point. That could then give a misleading view of the overall picture in a way that could be unhelpful. As I said earlier, we are committed to producing a report as soon as is reasonably practicable and it would be far better to wait for the full annual report. I hope that the noble Lord will reconsider the position and not press that amendment.

Lord McKenzie of Luton: My Lords, first, I thank my noble friend Lady Lister for her support for this amendment. I believe that my noble friend made a powerful contribution and painted what I think we would all agree is a very troublesome picture of what is happening on the ground in too many instances. She specifically asked whether the review would receive evidence from outside bodies, and I do not think that the Minister has addressed that point. I thank the noble Lord, Lord Kirkwood, too, for his support, at least in spirit. I believe that he is absolutely right that the projected cost of £130 million is excessive. Of course, from the Government’s point of view, the higher that figure, the greater the weight given to the opportunity of retrospective legislation. But I think that the noble Lord’s analysis is right.

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The Minister’s response was desperately disappointing generally. On the question of targets, let me be clear about what Amendment 5A says. It seeks a report that,

“will include an assessment of the extent to which jobcentre managers have applied targets on the issue of sanctions”.

I accept the Minister’s words—he would not wish to mislead us—on whether Ministers have targets, but the question is whether as a practical matter targets are being applied within certain Jobcentre Plus premises. The noble Lord says that it is about business information and that it is necessary to spot outliers, but the one document that we have as an example is worth reading. It says:

“I have until 15 February, along with other area managers, to show an improvement, and then it is a performance improvement plan for me”.

A PIP is the first stage of the disciplinary process, as my noble friend Lady Hollis identified. It goes on to say that,

“if I am on a PIP to improve my team’s Stricter Benefit Regime referral rate I will not have a choice but to consider implementing PIPs for those individuals who are clearly not delivering SBR within the team”.

It seems to me that there is an awful lot of pressure there, whether you label it as pressure driven by targets or by some other means. It is pressure, and it is changing the culture of the organisation. What does it lead to? It leads to advice like,

“listen for telltale phrases ‘I pick up the kids’, ‘I look after my neighbour’s children/my grandchildren’ or just ‘I am busy’—all of which suggest that the customer may not be fully available for work, even cases where a parent shares custody can be considered if the arrangement is informal. Not that I am suggesting you go there, but you need to consider each case individually”.

Is not the Minister troubled to understand that those sorts of memos are floating around within Jobcentre Plus? Is that not entirely contrary to what he himself has asserted? I cannot believe that he would feel comfortable about that happening. That is the purpose of the amendment—to find out what is happening or has happened in Jobcentre Plus generally. It is not a question of whether the Minister has set down a particular target but what is happening within those Jobcentre Plus premises and the impact that it is having on people being referred for sanctions.

Again, the hour is late, and I will withdraw the amendment, although when it is called I propose to test the opinion of the House on Amendment 5A, which is the key issue dealing with the sanctions and the revelations that the press have identified, because there is a pressing and clear need for that to be addressed.

Amendment 4 withdrawn.

Amendment 5 not moved.

Amendment 5A

Moved by Lord McKenzie of Luton

5A: Clause 2, page 3, line 34, at end insert—

“( ) A report under subsection (1) will include an assessment of the extent to which jobcentre managers have applied targets on the issue of sanctions.”

Lord McKenzie of Luton: I beg to move. I wish to test the opinion of the House.

25 Mar 2013 : Column 947

12.54 am

Division on Amendment 5A

Contents 35; Not-Contents 137.[See col. 950 forexplanation of mistake in voting figures.]

Amendment 5A disagreed.

Division No.  3

CONTENTS

Bach, L.

Bassam of Brighton, L. [Teller]

Bilston, L.

Brookman, L.

Collins of Highbury, L.

Dean of Thornton-le-Fylde, B.

Donaghy, B.

Farrington of Ribbleton, B.

Gould of Potternewton, B.

Grantchester, L.

Haskel, L.

Haworth, L.

Healy of Primrose Hill, B.

Hollis of Heigham, B.

Howarth of Newport, L.

Jones of Whitchurch, B.

Kennedy of Southwark, L.

Knight of Weymouth, L.

Liddle, L.

Lister of Burtersett, B.

McAvoy, L.

McIntosh of Hudnall, B.

McKenzie of Luton, L.

Maginnis of Drumglass, L.

Quin, B.

Rooker, L.

Royall of Blaisdon, B.

Sherlock, B.

Smith of Basildon, B.

Stone of Blackheath, L.

Touhig, L.

Tunnicliffe, L. [Teller]

Uddin, B.

Warwick of Undercliffe, B.

Whitty, L.

NOT CONTENTS

Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B. [Teller]

Astor of Hever, L.

Attlee, E.

Barker, B.

Bates, L.

Black of Brentwood, L.

Blencathra, L.

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.

Chalker of Wallasey, B.

Clement-Jones, L.

Colwyn, L.

Cope of Berkeley, L.

Courtown, E.

Crickhowell, L.

De Mauley, L.

Deighton, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Eaton, B.

Eccles of Moulton, B.

Eccles, V.

Eden of Winton, L.

Empey, L.

Faulks, L.

Fink, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Framlingham, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Garel-Jones, L.

Geddes, L.

German, L.

Goodlad, L.

Grade of Yarmouth, L.

Green of Hurstpierpoint, L.

Hamilton of Epsom, L.

Hamwee, B.

Hanham, B.

Harris of Richmond, B.

Henley, L.

Heyhoe Flint, B.

Hill of Oareford, L.

Hodgson of Astley Abbotts, L.

Home, E.

Howard of Lympne, L.

Howe, E.

Howell of Guildford, L.

Hunt of Wirral, L.

Hussain, L.

Inglewood, L.

Jenkin of Roding, L.

Jopling, L.

King of Bridgwater, L.

Kirkham, L.

Kirkwood of Kirkhope, L.

Kramer, B.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lawson of Blaby, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Linklater of Butterstone, B.

Lucas, L.

25 Mar 2013 : Column 948

Mackay of Clashfern, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Marks of Henley-on-Thames, L.

Marlesford, L.

Montrose, D.

Morris of Bolton, B.

Nash, L.

Neville-Jones, B.

Newby, L. [Teller]

Newlove, B.

Northbrook, L.

Northover, B.

Norton of Louth, L.

Oakeshott of Seagrove Bay, L.

O'Cathain, B.

Popat, L.

Randerson, B.

Rawlings, B.

Ribeiro, L.

Ridley, V.

Roper, L.

Ryder of Wensum, L.

Sanderson of Bowden, L.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sheikh, L.

Shephard of Northwold, B.

Shutt of Greetland, L.

Skelmersdale, L.

Stedman-Scott, B.

Stephen, L.

Stewartby, L.

Stoneham of Droxford, L.

Stowell of Beeston, B.

Strasburger, L.

Taverne, L.

Taylor of Holbeach, L.

Thomas of Gresford, L.

Tope, L.

Trefgarne, L.

Trimble, L.

Tugendhat, L.

Tyler, L.

Ullswater, V.

Verma, B.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Warsi, B.

Wei, L.

Wheatcroft, B.

Wilcox, B.

Younger of Leckie, V.

Amendment 6 not moved.

Clause 2 agreed.

Amendment 7

Moved by Baroness Sherlock

7: After Clause 2, insert the following new Clause—

“Guidance

Within a month of this Act coming into force, the Secretary of State will issue guidance on the way in which claimants may be entitled to mitigate any penalty imposed upon them under the 2011 Regulations or the Mandatory Work Activity Regulations following the coming into force of this Act.”

Baroness Sherlock: My Lords, the amendment would require the Secretary of State to prepare guidance on how claimants might mitigate any penalty. This is necessary because there are some serious questions for the Government to answer about how the sanction system will work in practice after a delay of many months, potentially longer, and how a claimant is able to limit the effects in the way in which Parliament envisaged when it passed the legislation.

I want to turn briefly to the question of recompliance raised by the noble Lord, Lord Kirkwood of Kirkhope. The Jobseeker’s Allowance (Employment, Skills and Enterprise) Regulations 2011—the regulations that were found to be at fault by the Court of Appeal—explain the consequences of failure to participate in the scheme covered by those provisions. Regulations 8(4) to 8(6) provide that a claimant who fails to participate in an activity may face a loss or reduction of benefit for a period of two, four or 26 weeks. Regulation 8(7) provides that if someone has been sanctioned for 26 weeks but has recomplied, the period for which benefit is stopped is reduced to four weeks—a point

25 Mar 2013 : Column 949

explained by the noble Lord, Lord Kirkwood. Recompliance is defined in Regulation 8(8), which refers to the claimant as “C”. It states:

“C will be taken to have re-complied where”,

on the same date, before or,

“after the date on which the Secretary of State determines that C has failed to participate in the Scheme, C complies with … (a) the requirement as to participation in the Scheme to which the determination relates, or (b) such other requirement as to participation as may be made by the Secretary of State and notified to C in accordance with regulation 4”.

Here come the questions, and I apologise that they are not very exciting. Can the Minister tell the Committee how this will work some months after the event? Let us say that a claimant with a fluctuating health problem has failed to turn up for a training course imposed as part of skills conditionality and has been sanctioned for 26 weeks. The course ended last September. Had he been sanctioned at once, he could perhaps have attended the remaining days of the course and had the sanction reduced from 26 weeks to four weeks. Can the Minister explain how that person could now show compliance? It is obviously too late for him to recomply under Regulation 8(8)(a), but perhaps he could recomply under sub-paragraph (b). If so, can the Minister explain how that will work? If the person has been given any subsequent direction and has complied with it in any way at all, will that count as recompliance; does the recompliance have to be specific to the particular scheme that he was put on; or does it have to be specific to the requirement made of him at the time—that is, that training course? Presumably, the Government would want to make sure that this person was not treated any less fairly than he would have been had the Government’s regulations and notices not been found to be unlawful, but how would the Minister do that? If he is not in a position to explain to the Committee in detail now, I would press him to accept the amendment, which simply asks that he issues guidance explaining to jobcentre staff how they should act in order to put the claimant in the position in which they would have been but for the delay caused by the failure of the regulations to be accepted by the Court of Appeal as lawful.

My second question relates to the question of good cause, which the Minister referred to at an earlier stage. If a claimant fails to participate in the scheme, they are notified by the DWP and will be sanctioned unless they show what is known as “good cause” for their failure to participate within five working days.

Let me give another example. I am interested in exploring how good cause works in this time-delayed world. Let us imagine a single mother who was due to attend a course but missed the registration on the first morning because her 13 year-old son was up all night vomiting and she could not take him to school. She could not leave a sick 13 year-old at home alone the next day, so she phoned up the course and explained what had happened and that she would not be in that day. She talked to the receptionist who took a message and said that it would be passed on. The message was not passed on and when she turned up the next day she was told that she could not join the course because she failed to be there for the start. I should say that I have heard of real cases where precisely these things have

25 Mar 2013 : Column 950

taken place, and I am sure that the Minister has as well. Can the Minister help us to understand what would happen in that circumstance?

I understood from what the Minister said early on that that lone parent would have been written to at the time that this alleged breach took place, asking if she had any good cause for failing to turn up for the course. So what happened then? Presumably the decision-maker did not make a decision at that stage, so perhaps this would be sat on from that point, say the previous September, until it got around to being processed from the pile of deferred decisions. Would she at this stage have to explain more about what happened? For example, if there were not enough information in the explanation, did the decision-maker go back at the point at which this happened last September to say, “Tell me more”, or will that happen, say, the following April or May? If so, will she be expected to recall precisely what happened with this child’s bout of sickness last September, when it is now potentially April or May? Will she be asked for evidence for a bout of sickness that may not have required a medical appointment if the child was recovered within 24 hours? If she did give all the information but she was then deemed not to have good cause, presumably she could now appeal. If so, can the Minister explain to the Committee how the normal standards of evidence will be relaxed, if at all, given the serious time delay, to deal with the evidential problems and the possible recall problems that come with that?

Finally, can the Minister explain which set of regulations will apply to someone who committed the alleged breach under the old sanctions regime? Will he or she be sanctioned using the provisions that applied at the time of the alleged failing, because of course the ability to reduce the sanction by recomplying has since disappeared? Can the Minister reassure us that in fact someone will be able to reduce a sanction period by recompliance even if such an option no longer exists under the current regulations?

I apologise for having to go into such detail at this stage, but I did not choose to be conducting a Committee stage at quarter past one in the morning. I do think, if we are going to be asked to fast-track a Bill of this complexity and importance, that it is very important that the Committee is given every opportunity to understand precisely what the Government are trying to do to these people. I beg to move.

The Deputy Chairman of Committees (Lord Haskel): My Lords, I must inform your Lordships that the result of Division 3 on Amendment 5A should have been Contents 35, Not-Contents 139—not 137 as announced.

1.15 am

Baroness Hollis of Heigham: My Lords, I should like to support my noble friend by saying that I am mortified about the additional numbers on the other side as the result of our strenuous debate. I thought that we might have persuaded a few more to abstain.

I hope that the Minister can agree to this amendment. There are three broad reasons why we need new guidance and clarity on the sanctions regime: the issue of targets/norms, good cause and compliance. The Joseph Rowntree

25 Mar 2013 : Column 951

research that came out in December 2010 shows that claimants have a low level of awareness of sanctions and that the more disadvantaged they are, the higher the risk of sanctions and the less knowledge they have about them. This applies to young claimants, those with a disability, those with a poor education, those with large families and those from an ethnic minority. The research shows that they are not out to flout the system but that they have poor information or non-intentional behaviour such as forgetfulness. In that context, I want us to support my noble friend’s amendment.

I turn first to the issue of targets. The Minister was at some pains to explain to us earlier that “targets” is a relevant word only where you are rewarding behaviour, but when you are punishing it, that is a “norm”. We know that if you exceed, you get a target, and that if you underachieve, that is a norm. It is clear that targets or norms, whatever we want to call them, are the enemy of mitigation. Using them to allow the Secretary of State to claim clean hands while the staff do the dirty work under pressure from above is completely unacceptable. We need clear evidence, guidance and clarity from the Minister on the sanctions regime to ensure that targets do not stand in the way of mitigation. If people are allowed to mitigate and sanctions numbers therefore reduce, so will the targets, and staff will obviously have an incentive to fail to ensure that claimants follow good procedure and appropriate behaviour because they themselves face disciplinary action. That is a moral, or immoral, position, into which they should not be put.

Secondly, we need this guidance to ensure that claimants are aware that they may be able to mitigate sanctions by establishing good cause. My noble friend gave the example of the lone parent unable to attend an interview. Every parent in this House has had a child who has been sick and they may have missed an interview as a result. There is no doctor’s evidence because, by the next day, the child is well. Certainly that happened to me on numerous occasions. However, in this new, suspicious, look-for-any-benefit-cutting-excuse, hunt-them-down culture, of course we all now assume that any lone parent will keep her child at home and away from school simply to avoid an inconvenient interview. She says that the child was poorly, but why believe her? As she can provide no evidence, the office has got her and another tick is put on the whiteboard.

The third reason for needing guidance on mitigation is that, as the courts have indicated, claimants need to know and have a right to know how they may end their sanction by complying with jobcentre requirements. This issue marks the crucial line as to whether we are using sanctions to reduce the benefit bill or whether we are using them to change behaviour. If it is the first, giving little information or hope for people to find their way back into the system, then the Minister risks creating a growing underclass without income, without much hope and without any help. But people, as Carlyle pointed out 150 years ago, will not starve quietly. Some may have families to help them, and they will be the relatively lucky ones. Some may beg, while others will cross the line into thieving, drug selling and semi-criminal behaviour. This is what the Rowntree trust warns us of. They will come to regard

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social security laws, in so far as they understand them, and increasingly other laws, as not applicable to them. We will all then pay a high price. If it is the second—that instead of simply trying to cut the benefit bill on any hook we can find, we want people to change their behaviour and sanctions are part of the tough love regime, as I believe they should be—then we absolutely must encourage people to end sanctions by complying with what they are expected to do. When they do so, we should rejoice, even though it means fewer ticks on the whiteboard of targets to be met.

Research evidence shows up that up to two-thirds of those sanctioned do not know the whys or wherefores, or what they can do about it. The Minister, whose integrity we totally respect, accepted at Second Reading that that was indeed the case and that therefore the issue of sanctions had to be revisited. If the issue has to be revisited, he should now accept my noble friend’s amendment, because it amplifies what he himself has already agreed. Mitigation means ending the culture of targets and, incidentally, protecting any whistleblowers in the process. It means ensuring that people have the help that they need to claim good cause where that exists and it ensures mitigation so that claimants will know how they can end the sanction by conforming to benefit requirements. I hope that all in this Committee agree on these three goals. In which case, I hope that the Minister will accept the amendment.

Lord Freud: My Lords, this amendment, which would require the Secretary of State to issue guidance on the way in which claimants can mitigate any penalty imposed under the ESE or MWA regulations after the Act comes into force, is unnecessary, as this information is provided to claimants as a matter of standard practice. When a claimant is issued with a benefit sanction, they are as a matter of course sent a letter explaining the decision made and what effect it will have. The letter clearly tells claimants that if they want to appeal the decision, they should fill in leaflet GL24, If you think our Decision is Wrong, and that claimants can,

“get this leaflet from your Jobcentre or Social Security Office”.

Attached to the sanctions letter are two leaflets: leaflet 1NF1, on appealing against a decision and leaflet JSA9, the hardship leaflet). I have both of these leaflets with me today.

The leaflet on appealing against a decision explains in plain English who the claimant should contact if they want to know more about the decision or, if they think the decision was wrong, how to appeal it and what support they may get in formulating that appeal. The hardship leaflet explains what financial support is available, the eligibility criteria and how to apply for hardship, and provides the form they must fill in to claim hardship. The whole process is done as a matter of course and, indeed, is on the record and available for anyone to see how those leaflets work.

I turn to the point raised by the noble Baroness, Lady Sherlock, on recompliance. If a claimant has been issued with a 26-week sanction but has complied in the intervening period, they will be served with a four-week sanction. Recompliance is not particular to any scheme and can include participation in any other

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scheme. Of course, the sanctions regime has changed, so if the failure to participate was before 22 October last year, the old regime, which includes the re-engagement, applies. However, if the failure to participate is after 22 October, the current sanctions regime, which has no engagement and which builds up, will apply. That goes on the time of the failure to participate.

The noble Baroness was concerned about the time between the failure and the sanction being imposed on the stockpiled cases. I am sorry that I have not yet found a better word than stockpiled but it is for cases not people. As I said on an earlier amendment, the process of finding that information takes place immediately on the failure. They receive a letter and need to provide good cause at that point. Clearly, where there is a problem and there needs to be amplification, and there is a problem of information or evidence, the decision-maker will have to take that into account in the normal way, given that there is a gap and it is a justifiable lacuna.

As a matter of course, the cases that we have stockpiled will get issued with a sanction and receive the standard letter, and those accompanying leaflets that I outlined. This amendment is therefore superfluous and I ask the noble Baroness to withdraw it.

Baroness Sherlock: I thank the Minister for that reply and, in particular, for clarifying that it will be the sanctions regime that was applicable at the time of the alleged breach that would prevail. I will just ask him to clarify one point more specifically. I was glad to hear him say that any subsequent direction can count as recompliance and that it did not have to be something specific to the particular scheme or course originally. It can count, but will it?

Lord Freud: If it fits the norms within which that re-compliance operates, then it will. I am not sure whether there is huge distinction, in this case, between the may and the will.

Baroness Sherlock: I am not trying to be pedantic, although I confess that it is a hobby. The reason it matters in this case is that normally, if I were sanctioned for not participating in a course, the obvious way to comply is to start going to the course. As the course

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has long since finished, there are all kinds of unrelated things that may have happened in between then and now, which would not be the obvious way for me to re-comply with a direction on something that has long since ceased. Therefore, the fact that these things could count does not necessarily mean that they will. The reason that I wanted guidance was precisely to make clear to jobcentre staff that in these circumstances they should interpret any form of compliance as being enough. I encourage the noble Lord to say that on the record.

Lord Freud: What I will say on the record is that we will ensure that guidance to jobcentre staff will make this absolutely clear.

Baroness Sherlock: What will that be?

Lord Freud: My Lords, we will make sure that the particular options here are laid out for jobcentre staff so that we do this consistently. I can add that recompliance will count if it is a scheme under the ESE regulations.

Baroness Sherlock: That was worth waiting for. I thank the Minister for that. I still think that this amendment is worth while. Although the Minister regards it as superfluous, the information that goes out to claimants actually relates specifically and only to complaints and hardships. The other obvious way to mitigate the effect of a sanction is recompliance and in fact none of that information does relate to recompliance. However, in the light of what he has just said, and given the lateness of the hour, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Clause 3 agreed.

House resumed.

Bill reported without amendment. Report and Third Reading agreed without debate. Bill passed.

House adjourned at 1.28 am.