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Page 5, line 22, at end insert:
("( ) A sick or disabled person who imposes restrictions on the nature, hours, rate of remuneration, locality or other conditions of employment which he is prepared to accept, shall not be required to show that he has a reasonable prospect of securing employment where those restrictions are reasonable in view of the person's physical or mental condition; and for the purposes of this subsection, regulations shall prescribe what evidence shall be required and that any costs incurred in obtaining such evidence shall not be borne by the claimant.").

The noble Lord said: In moving this amendment, I should like to speak also to Amendment No. 47.

The requirements to be available for and actively seeking work should take account of the special problems that face disabled people. The Bill does not clearly describe what is meant by "available for work" or "actively seeking work". The criteria governing both are left to be defined in regulations. Without knowing exactly what people will be asked to do, it is impossible to know how disabled people might be disadvantaged or discriminated against.

Although subsections (2) to (4) of Clause 6 allow the Secretary of State to make provisions to ensure that disabled people are not asked to meet requirements that they cannot meet because of their disabilities, it is essential for that to be explicitly stated on the face of the Bill, and Amendment No. 46 does that.

As we do not know what exactly will be covered by "available for work", "actively seeking work" and the "jobseeker's agreement", it is difficult to describe circumstances in which disabled people may be unfairly penalised. Nevertheless, it is easy to envisage disabled people facing difficulties in meeting requirements such as those regarding the hours of work, their distribution throughout the working week, the number of job applications that they have to make —which may be limited very severely by the type of disability—the frequency of attendance at the Jobcentre, the method of approaching a prospective employer, the means of applying for a job and so on.

In the other place, the Minister seemed to indicate that disabled people who chose to sign on would not have to go through the availability test. In the Second Standing Committee on Statutory Instruments, &c., debating the draft Social Security (Incapacity for Work) Miscellaneous Amendments Regulations on 23rd March

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this year, the Minister (Mr. Hague) referred to disabled people being able to restrict their availability for work. He continued:


    "New regulation 17A has nothing to do with those arrangements. It relates solely to people who have been found incapable of work and therefore have no need to restrict their availability. The purpose of the regulation is to ensure that people need only to show some connection with work or training for work to benefit from this new provision—to show that they can reasonably do some sort of work".—[Official Report, Commons; Second Standing Committee on Statutory Instruments, &c., 23/3/95; col. 12.]

I have given the Minister notice of a number of questions. I hope therefore that my noble friend will be able to provide comprehensive answers.

First, can my noble friend clarify the effect that Regulation 17A has on people who are regarded as incapable of work but want to sign on? Does the new regulation merely allow someone to prove only that he is capable of work for the purposes of jobseeker's allowance but has no effect on the conditions of availability and actively seeking work? Or does it mean that once accepted as capable of work under this regulation, a disabled person would—as Mr. Hague seemed to suggest—have no need to restrict his availability? Can the Minister also clarify how the regulation will operate in practice, taking as an example someone who is registered blind? If that person is on incapacity benefit but wants to sign on, is it the Benefits Agency or the Employment Service which assesses whether he can use the regulation? If he has been in work and is made redundant and wants to sign on as unemployed, will he be accepted as capable of work by the Employment Service? Or will he first have to go to the Benefits Agency to be assessed as incapable of work, then have to satisfy one of the two conditions under Regulation 17A in order to be treated as capable of work, then go to the Employment Service to explain that he is capable of work and then justify any restrictions on availability?

I turn to Amendment No. 47, which is grouped with this amendment. The purpose of Amendment No. 47 is to allow people who are appealing to a social security appeal tribunal against the withdrawal of incapacity benefit on the basis that they are incapable of work to be automatically treated as available and actively seeking work for jobseeker's allowance purposes while waiting for their appeal to be heard. I understand that the citizens advice bureau considers that there is an unavoidable contradiction in the position of a person who is simultaneously appealing to a social security appeal tribunal on the grounds that he is incapable of work while seeking to satisfy an employment officer that he is available for work and actively seeking work. Yet many people who have their incapacity benefit withdrawn will be placed in that position.

I consider that to be unsatisfactory, not only for sick or disabled people who run the risk of being refused jobseeker's allowance, but also for Employment Service staff, who will have the difficult and time-consuming task of assessing a group of people in poor health who may very well be claiming jobseeker's allowance for a limited period until their appeal is heard. My proposed

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amendment thus has operational advantages as well as easing the position of sick and disabled people for the limited period of their appeal. I beg to move.

6.15 p.m.

Lord Rix: I rise to support Amendments Nos. 46 and 47 to which my name is also attached. I realise that perhaps I am speaking Canute-like against the tide of affairs this afternoon. But I again ask the Minister to agree to what is clear and reasonable being written into the Bill, thus helping all concerned later to understand the regulations. Perhaps, as I have made one allusion to my theatrical past this afternoon, I may be allowed to make another. I am better qualified than most to recommend belt and braces. In this case, I do so unreservedly.

Baroness Williams of Crosby: I also rise to support the amendments of the noble Lord, Lord Swinfen. Perhaps I may just advance one additional argument to those that he has already so eloquently marshalled. In the case of someone who is disabled, his ability to be able to contest a decision that he should be disallowed jobseeker's allowance is in many ways limited by the very fact of his mobility and the conditions under which he operates. The noble Lord, Lord Swinfen, is trying—he is absolutely right to do so—once again to put on the face of the Bill conditions that would have to be recognised by employment officers when reaching their decisions.

Once again, doubtless we shall be told that regulations will take care of that. But this concerns a group of our very vulnerable fellow citizens to whom I believe we have a special obligation to try to get out into the open the conditions which determine whether or not benefit is to be disallowed. Again I plead with Ministers to consider very carefully whether this provision could be put on the face of the Bill, rather than once again asking us to rely on regulations in a situation which relates to some of the most vulnerable people in our community.

Baroness Hollis of Heigham: We also should very much like to support the amendments so skilfully put forward by the noble Lord, Lord Swinfen. Earlier in the Committee stage and at Second Reading the Minister said that people who failed the incapacity benefit test would be able to move seamlessly and smoothly on to JSA. Among other things, that is what these amendments probe. I am afraid that we have no such confidence.

Over a quarter of a million people will either lose invalidity benefit but fail to gain incapacity benefit or would have received it but will not do so in the future. The Government themselves expect something in the order of 140,000 people to appeal. They will appeal because, although they have some points for incapacity, they do not have enough points to qualify them for full incapacity benefit. I shall perhaps give some examples in a moment.

While those people are appealing their right to receive incapacity benefit, either they can refuse to sign the jobseeker's agreement—in which case they may get

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income support with, attached to it, a 20 per cent. fine for the impertinence of appealing—or they will register for JSA, despite their reluctance, believing that it is the wrong benefit for them because jobseeker's allowance presumes the very capacity for work against which they are appealing. Naturally, they will feel that they are undermining their appeal. We fear that it will prejudge the case; the Minister assures us that it will not. We doubt those assurances. It must be right, in those circumstances, for the claimant to retain incapacity benefit until the appeal has been heard rather than accept either income support with a fine of 20 per cent. with the right of appeal, a penalty on appealing or, alternatively, to go for JSA which appears to undermine their case.

The experience on the ground leads us to believe that we are right in our fears. Last autumn there was a RADAR survey—one of the leading organisations for disabled people—which looked at 77 cut-off cases under the more generous invalidity benefit regime. It studied those 77 people who were denied invalidity benefit and therefore had to seek unemployment benefit on the grounds that they were capable of work. It found that of those 77 people, 37 per cent. (over one-third), having been refused invalidity benefit, had difficulty being accepted for UB on the grounds that they were not capable of work; 29 per cent. (over one-quarter) failed to obtain unemployment benefit.

The Minister tells us that there will be a smooth progression from incapacity benefit to JSA. Yet under the previous regime, when we had more generous benefits—invalidity benefit and UB—over one-quarter of the cases surveyed by RADAR were denied the first benefit and failed to obtain the second. What confidence can we have therefore in the Minister's assurance that it will be a seamless movement to one from the other, particularly under the new incapacity benefit test—Members of the Committee around the Chamber expressed their anxiety about this matter—on grounds of mental health?

Let me give an example. To qualify for incapacity benefit, one must acquire 10 points on the grounds of mental health; fewer than 10 points and one must go to JSA. Let us consider somebody with seven or eight points. Does he or she get upset by ordinary events so that it results in disruptive behavioural problems? That warrants two points. Do they become confused by conversations? That warrants two points. Can they look after themselves without help from others? That also warrants two points. Are they frightened to go out alone? That warrants only one point. The list produces a total of seven points for someone who is so easily upset that they exhibit disruptive behaviour, who becomes confused by conversation, who cannot look after himself without help from others and who is afraid to go out alone. They still do not qualify for incapacity benefit, yet we are told that they will nonetheless qualify for JSA; that they are capable of work. Does anyone believe that any employer can usefully employ somebody who becomes so upset by ordinary events that they exhibit disruptive behaviour; that they are confused by conversations; that they cannot look after themselves without help from others and are frightened to go out

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alone? Yet that person will lose incapacity benefit and be told on those grounds that he or she is eligible for JSA.

Any reasonable Employment Service officer, any adjudication officer—and, I suspect, any employer—will think that such a person is not effectively capable of work. That was the experience under the old benefit system and we have no reason to believe that it will not be the experience under the new benefit system. Therefore, we ask the Minister to ensure that while the appeals are going through, there is a seamless move so that anybody currently in receipt of incapacity benefit does not lose it while they are appealing. All the information we obtained indicates that many people, because they are partially disabled, will not and cannot reasonably qualify for JSA. They will lose on the one because they do not qualify for the points, and lose on the other because there is clear evidence of their incapacity for work.

We are extremely worried that the Government may be placing thousands and tens of thousands of some of the most vulnerable people in our community in between two benefits, the first of which is being denied to them and for the second of which they cannot qualify. We need more than reassurances from the Government, in the light of our current experience, on the interface of such benefits. I support the amendment.


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