Danny
Alexander: I am grateful to the Minister for those
assurances, and I beg to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Clause 8 ordered to stand
part of the Bill.
Clause
9Limited
capability for work-related
activity
Danny
Alexander: I beg to move amendmentNo. 152, in
page 7, line 10, leave out first
‘is’ and insert
‘and such other matters as the
Secretary of State may by regulation prescribe’.
I understand that there will be
a clause stand part debate, so my remarks on the amendment will be
brief. Its purpose is to probe the Government’s thinking about
the test of limited capability for work-related activity. The
regulations make it clear that exemption from conditionality—in
other words, from membership of the support group—will be a
purely medical decision, rather than one that introduces any other, for
example, social factors. It will be a purely medical decision based on
an assessment of whether someone meets any one of the 46
descriptors. Other
factors might be worthy of consideration, and it would be useful if the
Minister explained in more detail why the exemption from conditionality
for the support group is based solely on medical criteria. What is the
conception underlying the way in which the support component has been
created? The amendment seeks to introduce a power to allow other
factors,such as caring responsibilities, to be taken into
account. Could they be introduced to decisions about the support
component? Although they are outsidethe descriptors, the
amendment would allow for the introduction of a social model and take
account ofthe wider barriers to employment that people in the
support group might face. If such factors cannot be taken into account
in considering someone’s entitlement to membership of the
support group, will the regulations ensure that other matters such as
caring responsibilities can be considered when deciding whether someone
entitled to the work-related activity component will be subject to
conditionality, whether that be membership of the support group or
work-related
activity?
Mr.
Murphy: I shall respond to the hon. Gentleman’s
point; as he said, we might have a stand part debate—with your
permission, Mr. Amess. As he knows, clause 9 provides that
the question whether a person’s capability for work-related
activity is limited by his physical or mental condition, and if so,
whether the limitation would make it unreasonable to require him to
undertake such activity, is to be determined in regulations. As the
Committee knows, I published a draft of those regulations two weeks ago
on the day when the Committee of Selection met.
Our belief that work is a right
underpins much of the Committee’s deliberations and was behind
the genesis of the Bill. However, we recognise that for some, work is
simply not possible. The support group has been created for individuals
whose functional limitation is such that it would be unreasonable to
require them to engage in work-related activity. As I have said, and as
hon. Members have mentioned, that will be based on falling under one of
the 46 listed descriptors provided to the Committee in regulation 3 of
the draft regulations. Other non-medical circumstances such as caring
responsibilities might make it difficult for ESA customers to engage in
work-focused interviews or undertake work-related activity, but it
would not be appropriate to place such factors on a prescriptive list
in the way that the hon. Gentleman
suggests. The
Committee has been provided with a copy of the draft regulations on
work-focused interviews, which will allow a personal adviser to defer
an interview if he or she considers that it would not assist the person
in question or be appropriate in the circumstances.
Personal advisers will be able to take into account non-medical issues
such as transport difficulties, caring responsibilities or bereavement
when making a decision on deferrals. So although I could not give the
hon. Gentleman much comfort in our earlier debate on what he described
as a social model of assessment, I hope that the additional paperwork
that has been provided reassures him that deferrals can take place on
the bases that I have
mentioned. Mr.
Hunt: The Minister will know that 10 per cent. of the 6
million carers are themselves disabled. If I understand his logic
correctly, he is saying that personal advisers will be able to take
account of that situation when considering whether to defer the
requirement of work-related activity. Will he put himself in the shoes
of a disabled person who, for example, cares for a disabled child?
Simply deferring the obligation to participate in such activity is not
adequate for someone in that situation. They simply do not have time to
work, and it would be completely unrealistic to expect them to do so.
Is there no possibility of greater flexibility so that in such a
situation a person’s obligation to participate could be put on
hold more
permanently? 12
pm
Mr.
Murphy: The length of time taken to grant a deferral will
be a matter for the personal adviser. We are not talking about a day, a
week or a month; it could be much longer than that. I think that there
is unanimity about the idea that—except on medical grounds
relating to access to a support group, although even then, those
involved would be entitled to volunteer—the state and the
Government should not be able to write anyone off by accident or
design. In the scenario described by the hon. Gentleman, a deferral
could be very long term; it would not be a case of “Please come
back tomorrow.” It would clearly be inappropriate to request
that someone undertake a work-focused interview or work-related
activity in that scenario or in many of the others of which we are
aware from our constituencies. That would be counter-productive and
would add to the difficulties that people were experiencing, rather
than doing what the Bill and the regulations are intended to do, which
is, where possible, to lift the difficulties that people experience in
getting closer to the labour market. I hope that that reassures the
hon. Gentleman.
Mr.
Wayne David (Caerphilly) (Lab): The Minister will be aware
that mental health organisations have expressed some concern about this
issue. What might happen, for example, to an individual who had
attempted to commit suicide? What flexibility might be introduced in
those circumstances?
Mr.
Murphy: We are suggesting all sorts of flexibilities in
the draft regulations, but we do not wish to be prescriptive and to
say, “This is the exhaustive list.” I am not sure that
this will enlighten my hon. Friend, but some of the provisions are
taken from paragraph 35 of the current decision makers guide, and, even
there, the list is not exhaustive. The guide refers to what constitutes
a good cause for not meeting
some of the conditionality in terms of, for example, medical
appointments, caring responsibilities and religious
adherence. On the
specific point about someone who has attempted suicide, my hon. Friend
will accept that people attempt that dramatic act for all sorts of
reasons, including low esteem and a sense of worthlessness. Although he
is not suggesting this, others have suggested that we automatically
passport into a support group everyone who has attempted suicide for
whatever reason. Such people would not automatically be entitled to
condition management, work-focused interviews and the chance to get
closer to the labour market again. The Government have a sense that
that is not the right way to support someone in those
circumstances. When
the work-focused interview and work-related activity would add to the
complications and the pressure that a person felt, there would of
course be a deferral. However, it would be wrong to say that we should
put everyone into the support group, regardless of the reason why they
had attempted suicide, and particularly when the pressure on a person
had built up because of long-term unemployment, material poverty, their
perception of their wider role in the world and of their inability to
support themselves and their family, and their sense of worthlessness.
In cases where it would help, we need to afford such people the support
of work-focused interviews to try to get them back to the labour
market. In cases where it would not help, there would be a deferral,
and we would not seek at any point to add to the difficulties that
somebody already faced.
Danny
Alexander: I am grateful to the Minister for that response
and particularly for clarifying the circumstances in which a
work-focused interview—and, therefore, the degree to which a
person who is not in the support group is subject to
conditionality—can be deferred. The Minister has introduced a
valuable concept into the discussion, and we might wish to probe it in
much more detail on further clauses. For the time being, however, I beg
to ask leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
Danny
Alexander: I beg to move amendmentNo. 153, in
clause 9, page 7, line 37, at
end insert ‘and the
safeguards that shall be applied when determining such
matters’.
The
Chairman: With this it will be convenient to discuss the
following amendments: No. 155, in
clause 10, page 8, line 27, after
‘failure’, insert
‘and the safeguards that shall be
applied when determining such
matters’. No.
173, in
clause 17, page 15, line 2, at
end add— ‘(c) safeguards
that shall be applied when determining such
matters.’. No.
260, in
clause 17, page 15, line 2, at
end add— ‘(4) The
circumstances which may be prescribed in section 17(3)(b) should
include, but need not be restricted to, the person’s mental or
physical condition.’.
Danny
Alexander: This group of amendments relates to safeguards
and the power to determine what safeguards may apply. Amendment No. 153
concerns clause 9 and the other amendments relate to other clauses.
They are designed to probe in more detail the Government’s
intentions regarding the provision of safeguards, particularly in
relation to clause 9 and the assessments of people’s capability
for work-related activity.
Elsewhere in the benefits and
social security system, variation is allowed in what Ministers consider
to be “good cause”. By tabling my amendments and for the
Committee’s benefit, I ask the Minister to explain in more
detail certain points regarding, for instance, the acts or omissions to
be covered, the judgment of acts or omissions being considered,
particularly in relation to decisions about information provided by an
individual, and the judgment of whether someone had good cause when
unavailable for their limited capability for work-related activity
assessment. Will that decision be left to the decision makers? To what
extent is it envisioned that external contractors will have the power
to exercise that judgment?
Other issues fall within the
scope of the amendments. They relate to the period in which benefit
claims for the support component can be backdated. For example, if
someone has good cause for being unavailable for an assessment, or for
not providing the required information in a timely fashion and, as a
result, a period elapses longer than the 13 weeks envisioned, what will
the rules be on the backdating of those claims, if it is decided
eventually that that person is entitled to the support
component? Last week,
we debated appeals and the need for an appeals process. The Minister
was generally reassuring in his response in that debate. However, how
will a case in which a decision about good cause has been made be
treated in the appeals process? Again, if someone has good cause for
any act or omission in relation to those assessments, to what extent
will their right of appeal be affected? Would that right be unfettered?
Indeed, will that person have the right of appeal against a decision
that might suggest that they did not have good cause for an act or
omission? I know that that sounds slightly technical, but it is
important to clarify those points and so I look forward to the
Minister’s
response.
Mr.
Murphy: I think that the hon. Gentleman’s
amendments are intended to probe the Government’s intentions, as
he said, and I can reassure him on a specific point: if
someone’s entitlement to a support group has been rejected on
the basis that, on assessment, they failed to meet one of the 46
descriptors, but on appeal it is found that that decision was
incorrect, the ESA entitlement at the support group level will of
course be reinstated and backdated to the start of the 14th
week—the end of the 13-week assessment period. I hope that that
reassures him. As the
hon. Gentleman said, clause 9 gives us powers to make regulations
treating customers as not having limited capability for work-related
activity, if they have failed without good cause to provide information
or undergo a medical examination that they were asked to attend.
However, we recognise the importance of ensuring that customers are not
unfairly penalised if they have good reason for failing to undertake
such an assessment.
Current legislation relating to
incapacity benefit sets out the matters to be taken into account when
determining whether a customer has shown good cause for failure to
attend a medical examination to assess incapacity for work. Published
guidance provides advice to the Department’s decision
makers—I have referred to that in response to an intervention
bymy hon. Friend the Member for Caerphilly (Mr.
David)—on the steps to be taken to establish whether there is
good cause. We intend
to follow the same approach under ESA. The draft regulations under
clause 9, which the Committee has seen, set out the matters to be taken
into account when determining whether a customer has shown good cause.
As I mentioned, it is not an exhaustive list, because such an approach
would be impractical and would not allow us the opportunity to innovate
and be flexible, either nationally or at a local level. As we introduce
ESA, it is important that we are able to adjust what constitutes good
cause based on our experiences both from pathways and, from 2008
onwards, from the national introduction of
ESA. Amendment No. 155
was tabled by the hon. Member for Inverness, Nairn, Badenoch and
Strathspey. Regulations under clause 10, which we will come to next,
will set out what matters are to be taken into account when determining
whether a customer has shown good cause for failure to take part in a
work-focused health-related assessment. They will include taking into
account the nature of the customer’s disability and his state of
health at the time. I alluded in a previous debate to the fact that
customers will have a right of appeal to an independent tribunal
against a decision that they failed to take part in a work-focused
health-related assessment without good
cause. I turn to
amendments Nos. 173 and 260. In clause 17, we are taking powers to
disqualify a customer from ESA. I reassure the hon. Gentleman and
others that there are already considerable safeguards in place as part
of the disqualification decision-making process. First, a customer will
be given the opportunity to explain why he has behaved in the way in
which he has, and evidence will then be considered by the decision
maker. The decision maker will also need to consider any other
available evidence.
In considering the evidence,
the decision maker will have to consider whether the customer has good
cause for not complying, and must take into account certain prescribed
factors and disregard others in accordance with the regulations. A
decision maker will be able to take into account any factor that he
considers relevant, including the state of a person’s mental and
physical health. We follow the same practice under the current IB
regime. We recognise
the particular difficulties that people with mental health conditions
might face in complying with requests. We will ensure that a decision
is not taken to penalise any person with a mental health condition or
learning disability without contact having first been made with them,
or their carer or healthcare team.
If the decision maker decides
that a person is tobe disqualified, that person will, as I
have already committed, have the right of appeal to an independent
tribunal. I assure the Committee that there will be
adequate training for our staff and that safeguards will be put in
place, meaning that customers will always be given opportunities to
explain their actions before any disqualification occurs. It is
important to mention that. I hope that my comments reassure the hon.
Gentleman on the specific points that he has
raised. | 
