The
Parliamentary Under-Secretary of State for Work and Pensions (Jonathan
Shaw): I welcome my hon. Friend’s
amendments.
Following on
from the previous set of amendments regarding people with a mental
health issue, we are now talking about people with a learning
disability. It is quite right that this Committee probes and asks
questions about particular people for whom we want to ensure that we
provide the support. We do not want to be in a position where people
are unduly penalised for the wrong reason because someone, in working
with them, misses their particular condition or is not particularly
sympathetic. I am thus grateful for the opportunity to hopefully
provide some words of reassurance to the Committee and to those
following our proceedings.
We will set
out provisions. There will be a thorough set of provisions in place to
protect people with learning disabilities. That will ensure that the
claimant understands the requirement of them and it will provide
safeguards—if it emerges later that the claimant has
misunderstood the requirement. A direction can only be issued as a last
resort and must be suitable and achievable for the individual
concerned. That is especially important if someone has a learning
disability and requires specific support in order to undertake
it.
As further
reassurance for Members on this point, I have set the safeguards around
making sure that the requirements of a person with a learning
disability are
appropriate. Jobcentre Plus advisers have a thorough training in dealing
with customers with a range of diverse health conditions, including
learning disability. Advisers working with employment and support
allowance claimants are also provided with specialist advice from
Department of Work and Pensions doctors, about the kinds of activities
that would be appropriate for a person to undertake through the
work-focused, health-related
assessment. Advisers
working with employment and support allowance claimants are also
provided with specialist advice from Department of Work and Pensions
doctors, about the kinds of activities that would be appropriate for a
person to undertake through the work-focused, health-related
assessment. This assessment is completed as part of the medical
assessment process at the start of the ESA claim. Every customer has
the right to be accompanied to interviews by a carer or an advocate, to
help them interpret and understand the advice and requirements being
set out to them. It is also an important point that we would expect
personal advisers, when assessing someone, to suggest or ask the
individual if they wanted to bring along an advocate, a carer or
adviser, if the personal adviser thought that individual would benefit
in terms of understanding what was required.
As stated in
both clauses 2 and 8, any direction to an activity would have to be
reasonable, and must have regard for a person’s circumstances.
Therefore, any activity that is directed by the adviser has to be
appropriate to their capabilities and the circumstances in which they
find themselves. If, for any reason, the claimant was directed into an
activity which was felt to be inappropriate, or where they had not
understood the requirements fully, the claimant could ask for the
direction to be reconsidered. Again, I can anticipate my hon. Friend
thinking “well, how would they know that this activity was
inappropriate?” I refer back to the previous set of amendments
which we discussed and say we are piloting these proposals. It is
important that we review them and have regard, particularly, for people
with learning disabilities, to make sure that they have the support and
understand what we are trying to do to assist them.
All members
of the Committee will endorse the sentiment I expressed in earlier
remarks—we want to see a transformation. There is a pool of
talent among people with learning disabilities who want to get a job,
and we want to help them. It is reasonable for us to say that we need
people to engage with us in order to make that possible. My hon. Friend
will know that if someone is on ESA, then they obviously have had an
assessment and support, but there are those people on JSA, where
perhaps the learning disability will not be so profound—someone
could miss that particular issue. We will keep that under review but we
believe there are safeguards built in.
I do not
think, as my right hon. Friend the Minister for Employment and Welfare
Reform has said, that it is appropriate to have such detail on the face
of the Bill. We will—as he has said and I will
say—provide that in regulations. I am pleased that my hon.
Friend the Member for Sheffield, Heeley has found the document
commissioned by my right hon. Friend helpful. Indeed, we hope all
Committee members do. We do not want to stipulate support because, as
we say, it is about tailoring to individual needs. I hope I can send a
very clear signal
about what the Government’s intention is, to
help these particular people in finding employment—not having a
punitive regime, that actually trips people up, rather than one that
assists people to engage with someone. Ultimately, that is what we
want. The sanction will be there, but we do not anticipate it being
used a great deal. Certainly, from the pilots and the pathways to work
programme it was used very infrequently. However, it does provide, in
the right circumstances, a carrot-shaped stick in order for some people
to engage. Meg
Munn: I thank my hon. Friend for his words. It has been
enormously important to get that information on record, so that it is
clear what the Government’s intention is in relation to people
with learning disabilities. On that basis, I beg to ask leave to
withdraw the amendment.
Amendment,
by leave, withdrawn.
Mr.
Clappison: I beg to move amendment 12, in
clause 2, page 7, line 10, leave
out subsection
(3). Proposed
new section 2F of the Social Security Administration Act 1992 provides
that by direction, the Secretary of State may specify what is and what
is not to be regarded as work-related activity in any individual case.
Can I say at the outset that we welcome a personalised approach,
tailoring directions to the individual concerned? We hasten to add that
we need to see what this will mean in practice. That is the important
question, as far as we are concerned.
However,
subsection (3) of the proposed new section, relating to directions
about work-related activity, contains a retrospective power for a
direction of this nature—what is and what is not to be regarded
as a work-related activity. It is a retrospective power to have effect
from a time before the giving of the direction in the case where it
varies or revokes a previous direction. I think I am on reasonably firm
ground in saying that this is a retrospective power, because the notes
on clauses admit that it may be so. Were a retrospective power to be
granted, it would be important to pause for a
moment. That
is not to say that we are opposing this tooth and nail, or are seeking
a Division on it. We would be doing less than our duty of parliamentary
scrutiny, though, if we were not to raise the question of a
retrospective power, given the general approach toward those powers in
the line long of authorities on them, and a possible European dimension
on such powers as
well. We
do feel that it is important, wherever a retrospective power is
granted, to at least ask questions and seek to elicit more information.
In this case, what we need to know from the Government is just how this
retrospective power would be used. We note that it would be
retrospective in an individual case. Under the terms of this power, it
would be possible for an individual who had been carrying out what they
believed to be work-related activity, to have a later direction made
saying that it was not work-related activity after
all. As
always in cases of retrospective legislation, there is an individual
aspect to it: what individuals knew at the time, what they believed to
be the case and subsequent variations, and the question of how fair
that is to individuals. I do not want to make too much of that because
it is a general point about retrospective legislation. I just feel that
we need to give pause for a moment and ask the Government for more
information about it.
Mr.
McNulty: I dislike undue retrospectivity as much as I do
undue specificity. I do take the broad thrust of what the hon.
Gentleman is saying, but if we are to be, as we declared, as flexible
as possible, then we need 2F(3) to sit with 2F(1) and 2F(2). There may
be occasions where a person’s circumstances have changed, and
the work-related activity they have been directed to undertake cannot
be completed—because of the illness of a child, for example, or
because the childcare has fallen through. Without the catch-all of
proposed new section 2F(3), there could be an interpretation of the law
that such a person should be sanctioned regardless. So, this is
positive retrospectivity rather than negative. As a norm, the UK legal
system would decry retrospectivity in the
law. Another
example would be where, because of a change in circumstances, a person
has agreed with their adviser to engage in activity that is not exactly
the same as they were directed into, but which nevertheless was
acceptable to the adviser as a suitable alternative. Again, without
proposed new section 2F(3), the person could be penalised. This
amendment would prevent a personal adviser issuing a revised direction
to fit the acceptable activity already undertaken.
So by
definition, and to keep up with potential changes in someone’s
circumstances, there has to be that degree of retrospectivity. As the
Under-Secretary of State for Work and Pensions, my hon. Friend the
Member for Chatham and Aylesford, has already said, we do not want to
sanction or punish people unduly, and we will want to use those powers
in the Bill for sanctions as sparingly as possible. The process is much
more about the help and support we can afford people rather than
rushing to sanctions. Notwithstanding the hon. Gentleman’s
points about retrospectivity, which I agree with, in this instance it
is important to have that catch-all to afford the adviser the degree of
flexibility which we all
seek. 4.45
pm Sitting
suspended for a Division in the
House. 5
pm
On
resuming—
The
Chairman: The Minister was reaching the conclusion of his
speech.
Mr.
McNulty: And therefore I ask that the amendment be either
withdrawn or, if pressed to a Division,
resisted.
Mr.
Clappison: As I hope that I have indicated already, this
is a probing amendment and I shall seek the Committee’s leave to
withdraw it on the basis that I have drawn some reassurance from the
Minister’s entirely appropriate remarks. Having heard the
Minister’s two examples, however, I am not entirely convinced by
the aim. In the first example, he said that somebody’s ill
health might prevent them from carrying out their original direction,
but I am not entirely convinced that the aim of doing justice to that
person could not be achieved by a simple variation rather than by a
revocation—varying the terms of the order, so that the completed
part stood but was varied to something more suitable to the
person’s current health conditions. I am not sure that variation
would not be a better way of dealing with it than revocation, when what
was directed
in the first place would no longer count because it
would have been revoked. However, I draw reassurance from the
Minister’s explanation of the intention—that, as far as
the individual claimant is concerned, the provision is intended to be
positive. In the light of his helpful remarks about that positivity and
its effect on any subsequent interpretation of the provisions, should
it come to that, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Mr.
Clappison: I beg to move amendment 13, in
clause 2, page 8, line 27, leave
out paragraph
(a).
The
Chairman: With this it will be convenient to discuss
amendment 21, in
clause 23, page 33, line 11, leave
out paragraph
(a).
Mr.
Clappison: Again, amendment 13 is a probing amendment,
whereby we simply seek clarification of some possible legal issues. The
provision concerns contracting out to welfare to work providers and
their legal position—where the Secretary of State has contracted
out functions to an external provider.
Amendment 21
raises the same issues in relation to contracting out in jobseekers
cases. Amendment 13 deals with contracting out of work-related activity
matters. Broadly, proposed new section 2G of the Social Security
Administration Act 1992 will enable the Secretary of State to authorise
providers to carry out functions on his behalf, while proposed new
subsections (7) and (8) concern the legal position of the Secretary of
State and the provider. Proposed new subsection (7) appears to provide
that anything done or omitted to be done by an authorised person is to
be treated as being done or omitted to be done by the Secretary of
State, so it appears that legal liability for what the provider does
will rest with the Secretary of State. However, proposed new subsection
(8) provides that that does not apply
“for the
purposes of so much of any contract made between the authorised person
and the Secretary of State as relates to the exercise of the
function”. We
would like some clarification of the provision’s implications.
For example, is it the Government’s intention that the Secretary
of State can, by contractual terms, exclude himself from liability for
the actions or omissions of the provider? Can he thus exclude himself
from liability under the civil law? We raise that issue to seek
clarification from the Government about what proposed new subsection
(8) means. Proposed new subsection (7) says one thing but proposed new
subsection (8) appears to cater for an entirely different circumstance
and to go in the opposite direction. In case there is any question,
this is a probing amendment, however. We seek clarification, we think
it right to do so when there may be a legal issue and I wait with
interest to hear what the Minister has to
say.
Mr.
McNulty: I understand the confusion. The Committee will
know that these laws are written in something approximating English,
but not quite English—we have to allow for appropriate
distinctions. The hon. Gentleman is right to suggest that proposed new
section 2G(7) provides that anything done or omitted to be done by an
authorised person, or an employee of that authorised person, is to be
treated as if done by the
Secretary of State. It is terribly clumsy, but we
still have to afford the Secretary of State the right to sue those who
contract out for breach of contract, or any other aspect of contract
law. The clumsy way of doing that is to say in subsection (7) that all
of what can and should be done is actually the Secretary of
State’s duty, and rightly and properly so, save for those
contracted out subsequently and passed on to a contractor to do on
behalf of the Secretary of State. That is terribly clumsy, but I think
the import of them is to have the Secretary of State fully responsible
for what are clearly his duties under a raft of previous social
security legislation. Where, as in the two instances that the hon.
Gentleman has alighted upon, there is a clear contractual obligation on
a third party—where duties have been contracted out—there
must still be scope for the Secretary of State, notwithstanding what
subsection (7) says about his duties, to afford the proper
contractual relationship with that other body in what is the normal
contracting
practice. It
is saying that here is the sum of the Secretary of State’s
responsibilities and the Bill makes provision for part of that to be
contracted out. We must reinvent and rebuild under contractual law the
ability of the Secretary of State and the Government to sue or
challenge, at the very least, the outside contractor for those elements
that have been contracted out subsequently. Even the explanation is
clumsy, which I understand, but the interplay between subsections (7)
and (8) is
important.
| 
