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Thirty Third Report Contents

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Instruments drawn to the special attention of the House

Universal Credit and Jobseeker’s Allowance (Work Search and Work Availability Requirements - limitations) (Amendment) Regulations 2022 (SI 2022/108)

Date laid: 7 February 2022

Parliamentary procedure: negative

This instrument reduces from three months to four weeks the period during which claimants are permitted to limit their job search to the same occupation and level of remuneration as their previous work (“the permitted period”). All other conditions for the receipt of benefits and imposition of sanctions remain as now, they simply apply at an earlier stage. Although the policy objective of matching jobseekers to job vacancies as quickly as possible is clear and important, we were not satisfied that these Regulations met the normal criteria for emergency legislation or that the Department for Work and Pensions had a feasible plan for achieving its stated target of getting 500,000 people into work by the end of June.

DWP claimed these Regulations were urgent because they were vital to achieving that target. It became apparent, however, that they were just one element of a larger campaign. The Explanatory Memorandum provided with the Regulations made no mention of the larger campaign and the reader was left with the impression that this statutory instrument alone would be expected to achieve the target, raising concerns about how frequently sanctions would be applied.

Extensive additional evidence still left us with the view that the target is aspirational, its delivery not yet fully thought through, and the Department’s ability to say whether it has been achieved somewhat uncertain.

We therefore draw these Regulations to the special attention of the House on the grounds (1) that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation and (2) that the Regulations may imperfectly achieve their policy objective.

Background

1.This instrument amends the Universal Credit Regulations 2013 and Jobseeker’s Allowance Regulations 2013 to reduce from three months to four weeks the period during which claimants are permitted to limit their job search to the same occupation and level of remuneration as their previous work (“the permitted period”). All other conditions for the receipt of benefits and imposition of sanctions remain as now but simply apply at an earlier stage.

2.In supplementary material, the Department for Work and Pensions (DWP) explained that, after the end of the permitted period, claimants are expected to widen their job search into other suitable sectors where they may find employment at or above the National Minimum Wage that can support them while they consider their longer-term career options. Those who refuse to do so may be sanctioned.

3.Our preliminary consideration of the Regulations left us with numerous questions about how their policy intention would be delivered: whether Jobcentres were adequately resourced to deliver this initiative, how it could be delivered equitably in places with fewer job vacancies and whether retrospectively applying the requirement to broaden their job search after four weeks to existing claimants1 would result in them being sanctioned.

4.We were also concerned about DWP’s claim that the Regulations, which came into force the day after they were laid, were urgent enough to warrant (1) a breach of the 21-day rule (the rule that negative instruments should generally be laid at least 21 days before they are due to come into force) and (2) the application of an urgency procedure which enabled them to be laid without first being considered by the Social Security Advisory Committee (SSAC).

5.Replies to our written questions to the Department did not satisfy us (see Appendix 1). We therefore invited Baroness Stedman-Scott, Parliamentary Under Secretary of State at DWP, Jonathan Mills, Director-General of Labour Market Policy and Implementation, DWP, and Hilton Leslie, Deputy Director, DWP Legal Advisers, Government Legal Department, to attend an oral evidence session to provide fuller explanations. This took place on 8 March.2

Urgency?

Breach of the 21-day rule

6.The Regulations were laid on 7 February and came into force on 8 February. The Explanatory Memorandum (EM) stated (paragraph 3.2) that immediate action was necessary to achieve a target of getting 500,000 people into work by the end of June: “Any delay to the legislation in order to meet the 21-day rule could impact the Department’s ability to achieve that target.”

7.The purpose of the 21-day rule is not only to allow time for parliamentary scrutiny before an instrument comes into effect but also to enable operational staff and the public to prepare. The Joint Committee on Statutory Instruments has stressed the importance of compliance with the 21 day rule, “which is designed to protect those affected by changes in the law made by subordinate legislation from being subject to the effect of the changes before they have had a reasonable opportunity to understand the effects and what they must do to satisfy any requirements.”3 The convention should be set aside only for compelling reasons.4

8.In the course of oral evidence, we discovered that these Regulations were part of a multifaceted package of initiatives, the Way to Work campaign, and that the Minister was unable to point to any specific disadvantage that would have occurred from these Regulations conforming to the 21-day rule.

9.We also observed that the Regulations were laid 12 days after the Secretary of State had announced the Way to Work campaign. During the evidence session, it became clear that, although the broad policy objectives had been agreed before the announcement, the Regulations were drafted afterwards.5 Mr Mills said that the Department had not been sure when the Plan B health restrictions would be lifted and so the process was “concertinaed”.6 That is an internal planning matter within government. It is not, in our view, a valid reason for curtailing parliamentary scrutiny.

SSAC and the urgency procedure

10.DWP has a statutory obligation to consult the SSAC before laying regulations about benefits. On this occasion the Secretary of State invoked the urgency procedure which enables regulations to be laid with the SSAC examining them afterwards. The SSAC has questioned both the reasons for urgency and the need for these Regulations:7

“Although we have not had sight of draft regulations, based solely on the Government’s announcement on 26 January and the legislation currently in place, it is not currently clear to us why it is necessary to amend existing legislation to deliver the Way to Work campaign.

Our understanding is that existing regulations already provide adequate space for the implementation of the campaign through the provision of Secretary of State discretion on limitations on work-related requirements, without needing a general rule. …

As the Way to Work campaign has been presented as a change of government policy unconnected to either external factors or a fiscal event, the compelling need for urgency in this specific case is not apparent, beyond the ordinary desires to effect policy without delay. We would welcome a greater appreciation about the necessity for urgency in this case”.

An aspirational target?

11.The Way to Work campaign was first mentioned at Prime Minister’s questions on 26 January and formally announced by the Secretary of State for Work and Pensions, the Rt Hon. Thérèse Coffey MP, on 27 January8—both mentioned getting 500,000 claimants into work, neither referred to the end of June deadline. When we asked Baroness Stedman-Scott how this target date had been decided and what its significance was, the Minister said it had been agreed by the Chancellor, the Prime Minister and the Secretary of State for Work and Pensions: it was acknowledged that it was “stretching”.9

12.We asked why, if these Regulations were intended to meet a deadline, they did not include a sunset clause to revert to a three month permitted period from 1 July. The Minister said the Secretary of State was committed to keeping the Regulations under review and did not want a sunset clause.10 This appears to us to indicate that the legislation may be intended to be a longer-term measure than the purported deadline of 30 June and suggests that the target date was adopted simply to gain publicity.

13.Getting jobseekers into work as soon as possible is, of course, an important objective. It appears, however, that the end of June deadline has no specific significance, and the claimed “urgency” is self-imposed. Mr Mills said that part of the reason for setting a target was that: “giving our work coaches and jobcentres a really clear thing to aim at has particular value”. We do not dispute that, but it is an operational matter and not a reason to claim an urgency which impacts parliamentary and SSAC scrutiny.

Measuring success

14.The EM also failed to provide any information on how progress towards this target would be measured, and we followed this up in oral evidence:

• First, no baseline was provided from which the deduction of 500,000 is to be calculated. The evidence session did not resolve this since the Minister quoted 1.4 million unemployed and Mr Mills 1.7 million, using slightly different definitions.11
• Second, it appears that DWP has not yet decided whether an individual taking a part-time job would be counted as one unit or a fraction of a full-time equivalent.12
• Third, Mr Mills said that DWP would not be able to measure what they had done until afterwards. Because of the degree of economic uncertainty in the post-pandemic period, the Department was unable to predict the “counterfactual” and could not therefore estimate the normal ebbs and flows on and off the register to anticipate how much “value added” this activity would have.13
• Fourth, the effect of these Regulations could not be separated out from the other elements of the Way to Work package which included employer job fairs, better account management and better use of outcome data to monitor performance.14

15.We understand that the post-pandemic period might make predictions trickier than usual, so we asked about DWP’s implementation plan. Given that there are well-established regional variations in job availability, we would have expected the 500,000 figure to have been based on some sort of analysis of the location of the jobseekers and the location of the job vacancies to see how they might coincide. This Minister was unable to assist and undertook to find out what information about regional variation was available and write to the Committee afterwards.15 (The letter is published in Appendix 2)

16.The evidence we received strengthens the impression of a target and deadline chosen arbitrarily. We have addressed this issue before, and we are disappointed that our comments on the Homes and Communities Agency (Transfer of Property etc.) Regulations 2020 (SI 2020/31) about “aspirational” targets were not taken on board. We said:16

“It seems reasonable to us to suggest that when the Government refer to a “target” figure, to be achieved within a stated timescale, there is an intention, based on a realistic assessment of the evidence, that that figure should be achieved within the deadline set …. We find it deeply troubling that the Government have, in this context, used the word “target” when there was an insufficient evidence base to support it and when it is acknowledged as being nothing more than “aspirational”. Given the absence of information on the face of the EM …, we find this misuse of the word “target” to be particularly egregious.”

17.The House may wish to seek a commitment from the Minister to present a statement after 30 June setting out the results of this campaign, including a regional breakdown, and whether the target has been met.

Carrot and stick

18.The EM provided with the Regulations does not mention the other parts of the “jigsaw” of interventions described by Mr Mills,17 and gave the impression that the Regulations alone would achieve the target.

19.At the oral evidence session, we were told that the Way to Work campaign also included a national team and local employer teams that were focused on producing more vacancies. We also discovered that during the pandemic period DWP had doubled its number of work coaches and opened 200 new jobcentres around the country, and, in consequence, is now in a position to devote 50 minutes a week to each claimant’s needs so as to encourage them back into work. Given the current high number of vacancies, DWP takes the view that claimants should broaden their job search at a much earlier stage than previously: the change made by these Regulations provides the ability to enforce that where necessary.

20.In response to concerns that claimants living in areas with few vacancies might be penalised unfairly, Mr Mills clarified that “the sanction would apply at the end of a long process of consideration, if somebody was not actively looking for work. If somebody is looking for work and the work is not available or they are unsuccessful despite their best efforts, our sanctions regime would not penalise them for that.”18 The Minister added: “somebody would be sanctioned only if there was a job that they could do but which, for no good reason, they would not do.”19 We pointed out that the law applies nationally irrespective of the local situation and the Minister undertook to write further on the extent of the work coaches’ discretion to apply it.

Financial impact

21.According to the EM, the Regulations will have no significant impact on the private, public or voluntary sectors. This seems surprising since it might be expected that the movement of 500,000 jobseekers into employment would result in financial savings to the Treasury. The Minister’s reply did not provide a satisfactory explanation and the follow-up letter simply rehearses the same arguments.20 The House may wish to press the Minister further about potential savings from this campaign.

Conclusion

22.These Regulations exemplify some of the long-standing concerns raised most recently in our report Government by Diktat21 about the quality of legislation and supporting materials.22 We found the EM accompanying this instrument disappointing. It did not adequately justify its assertion of urgency and failed to include any practical explanation of the policy context or how achievement of the target would be assessed.

23.Although we asked DWP a number of supplementary questions, the responses focused more on the campaign’s ethos than its operation. In oral evidence, while the Minister conveyed her enthusiasm for the campaign effectively, we were less convinced by the information provided about how the campaign would deliver its “stretching” target and how DWP would know whether the target had been met. The follow-up letter from DWP represented a third stage of explanation, supplementary to the EM, and yet we remain unclear about the costs, benefits and the extent to which these Regulations will be effective in delivering the stated target. We therefore draw these Regulations to the special attention of the House for failing to provide sufficient information to gain a clear understanding about their policy objective and intended implementation.

24.DWP claimed these Regulations were urgent because they were vital to getting 500,000 people into work by June. It became apparent, however, that they were just one element of a larger campaign. Extensive additional evidence still left us with the impression that the target is aspirational, its delivery not yet fully thought through, and the Department’s ability to say whether it has been achieved somewhat uncertain. We therefore also draw these Regulations to the attention of the House on the ground that they may imperfectly achieve their stated policy objective.

Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 3) Regulations 2022 (SI 2022/ 206)

Date laid: 1 March 2022

Parliamentary procedure: negative

These Regulations revoked with effect from 15 March the two sets of regulations that made full vaccination against COVID-19 a condition of employment in a care home or NHS setting. The Department of Health and Social Care (DHSC) states that, as the risk of Omicron is now known and not as serious as anticipated, the vaccination requirement is no longer proportionate. This Report summarises DHSC’s supporting evidence but regrets that the Explanatory Memorandum (EM) makes no mention of how those already dismissed are to be treated. The House may also wish to enquire further into DHSC’s future intentions about mandatory flu vaccination and the statement in the EM that DHSC is engaging with the NHS to review its policies to take account of vaccination status when hiring new staff.

These Regulations are drawn to the special attention of the House on the grounds that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.

25.These Regulations revoke the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 202123—which required anyone working in a care home after 11 November 2021 to be fully vaccinated against COVID-19—and the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 202224—which required all NHS staff in contact with patients to be fully vaccinated against COVID-19 by 1 April 2022.

26.The revoking Regulations were laid on 1 March and came into effect on 15 March to provide time for employers in the health and care sector to react before the 1 April deadline.

Rationale for revocation

27.The Explanatory Memorandum (EM) states that by 20 February over 1.45 million (95%) NHS trust staff had received at least one dose of an authorised coronavirus vaccine, and 1.4 million (92%) staff had received two doses. These high levels are sustained across all regions, with London being the lowest at 92% for the first dose, 88% for both doses. Over 1.24 million staff (78%) have also received a booster.

28.There is a similar picture for social care staff with 1.3 million (96%) having received a first dose by 20 February and 95% a second dose.; 96% of care home residents have also been fully vaccinated; and 92% of all adults over 80 in the general population have received two doses of the vaccine.

29.The Department of Health and Social Care (DHSC) cite Public Health England analysis which indicates that the COVID-19 vaccination programme has directly prevented between 23.8 and 24.4 million infections, over 82,100 hospitalisations, and between 102,500 and 109,500 deaths.

30.DHSC adds that both sets of regulations were formulated when Delta was the dominant variant and Omicron was an unknown quantity. It is now known that, while Omicron still presents a threat to public health, it is intrinsically less severe and the risk of requiring emergency care or hospital admission with Omicron is approximately half of that for Delta. DHSC states that when coupled with the high vaccination rate in the population, this has meant the impact of the Omicron variant has been less than initially feared.

31.There is also evidence, however, that the protection offered by coronavirus vaccine wanes over time, with protection against Omicron dropping to about 50% by 14 weeks after the booster dose.

32.Having reviewed these factors DHSC announced on 31 January 2022 that the Government now take the view that it is no longer proportionate for vaccination to be a legal condition of employment in the health and social care sectors. Guidance will make it clear that it is a professional responsibility for staff to be vaccinated and the EM states that the Government are engaging with the NHS to review its policies to take into account vaccination status when hiring new staff (paragraph 7.29).

33.We note that DHSC were constrained by the knowledge available at the time the original regulations were laid, and that the situation has changed rapidly. The EM accompanying these Regulations provides substantial factual information and scientific evidence to support the decision, which we commend.

The factors not addressed

34.We are, however, disappointed to see no information in the EM about the other consequences of this policy. In particular there is no estimate of how many care home staff were dismissed in November when the first regulations took effect or how many NHS staff were dismissed or left in anticipation of the second set. We asked supplementary questions on these points but DHSC’s responses, included at Appendix 3, fail to provide satisfactory answers. As a large part of the debates on the original instruments focused on the potential reduction to the workforce, it is surprising that the Department has not collected any data on the reasons for staff leaving during this period. We also note that the Department has received Employment Tribunal claims related to individuals who were dismissed.

35.We are further disappointed that, having caused difficulties to many care homes and staff, DHSC’s response to our question about whether staff dismissed under the mandatory vaccination regulations could now be reinstated was simply that “the matter of rehiring staff who have been dismissed or resigned as a result of VCOD regulations25 is an issue for each individual employer and they may want to seek independent legal advice.” The House may wish to press the Minister for further information on this point.

36.We also note the suggestion in the EM that NHS recruitment policy should be changed to consider vaccination status. The House may wish to press the Minister on this point as well.

37.Finally, we recall that DHSC’s consultation exercise conducted in September 2021 was also keen to promote mandatory vaccination against influenza. In the Government response document26 DHSC cited practical reasons for not including flu in the legislation (primarily vaccine supply problems, as most flu doses are administered by January each year, and a lack of resources to run a second major vaccination programme last year). However, DHSC’s response also said that it would review that decision following this winter and ahead of winter 2022–23. The House may therefore wish to ask the Minister about DHSC’s future plans on mandatory flu and any other vaccinations as a condition of NHS employment.

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