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Lord Inglewood: That is right. However, after the adjudication officer has determined, the benefit will, in the event of the arrangements being upheld, be backdated to cover the period for which it was suspended.
Earl Russell: I thank those who have taken the trouble to make the amendment available to us. However, it appears to say little more than "regulations may prescribe". It is an amendment signed in the usual way as regards this Bill; Humpty Dumpty. The intention may or may not be excellent but I do not see how parliamentary control, as distinct from scrutiny, can be exercised over anything done under it.
It sounds as though the principle that Parliament makes the law is in danger of obsolescence. Furthermore, having listened to what the Minister has said, I am not convinced that he has dealt with the substantive points of the amendment. The question of whether the Minister recognises that single people can experience hardship, and if not why not, was serious. The question of how one can be disentitled to a means-tested benefit without experiencing hardship was also serious. I have now asked that question three times
Baroness Williams of Crosby: My heart rose when I read paragraphs (1) and (2) of the amendment and I considered that the Minister had gone some way to meet the case made by Members on all sides of the Committee. However, paragraph (5) firmly announces that most of the money paid can be recovered. I am unclear about where the money can be recovered from because, if the claim for benefit is disallowed, the claimant will have no money from which to be able to repay the amount extended to him. On the other hand, if his claim is regarded as being justified I do not see why on earth he should be expected to repay the amount; his position has already been recognised as a result of the adjudication. Therefore, paragraph (5) is either otiose or foolish and I wonder whether the Minister will reconsider it. Paragraphs (1) and (2) go some way towards meeting the case raised by Members on all sides of the Committee.
Earl Russell: Perhaps I may add a further comment. Is there any evidence as regards the tests that are to be used to demonstrate hardship? The proposition about demonstrating hardship was made some time ago by Mr. Roger Evans in another place. It is not a new government idea; they have had plenty of time to think about it. When we understand what the Government mean by demonstrating hardship, when we look at the evidence that is to be produced as proof of hardship, we might have more understanding of what they mean by "hardship". If we understand neither the meaning of "hardship" nor the meaning of "demonstration" we have not advanced any further. I trust that for the moment the process of osmosis is complete.
Lord Inglewood: I have been asked about the definition of "hardship". Currently hardship is not defined in regulations but is left completely to the discretion of the adjudication officer. We consider that it is right in JSA, which aims to set out a clearer sanctions regime, that criteria should be made more explicit in regulations.
In drawing up the regulations we will take account of the guidance issued by the chief adjudication officer in the past and we will listen to views. However, we would expect to prescribe factors which should be taken into account by the adjudication officer, including the level of resources available to the household; the risk of lack of any of the essentials of life, including shelter, food, clothing or heating; and the presence of family members particularly susceptible to riskfor example, children, elderly people or those in ill health or with disabilities. We shall carry forward the provisions under which a reduction equivalent to 20 per cent. rather than 40 per cent. of personal allowance applies where the household includes someone who is pregnant or seriously ill and the claimant has capital of less than £200.
The noble Baroness, Lady Williams, asked about the problems relating to the recovery of money. The noble Baroness puts her finger on the underlying problem behind advancing money. If people are not ultimately found to be entitled to it, they will not be in a position
Earl Russell: We are becoming involved in arguments similar to those which have been taking place recently in the press about when life begins. We are arguing about when the entitlement to disentitlement begins. The Minister assumes that it begins from the very first referral. That is rather like assuming that, when a Motion is carried to reduce a Minister's salary by £1,000 per year, that lasts from the beginning of the Session of the Parliament in which it was done. In effect, that is retroactive.
We have here a situation which would be a great deal simpler if the disentitlement were to begin from the moment of adjudication because, after all, until that moment, it is not clear whether there is a right to disentitlement. The department is taking away the money in too much of a hurry. That is why the question of paying it back arises in the first place.
Lord Inglewood: In the context of this debate, the entitlement rests with the satisfaction of the various criteria. If the criteria cease to be satisfied, then the entitlement falls. That is the basis on which the approach that has been adopted has been built.
Lord Inglewood: With the greatest respect to the noble Earl, the comparison is not entirely exact although if one were to extend the comparison further the point should be made that if someone is accused of murder, he is normally taken into custody and the matter is determined by a trial. Under this proposed scheme, the benefit is suspended until the moment of adjudication. If the decision is taken in favour of the claimant, the back-payment is made running from the period at which it was cut off. It seems to me that that is the equivalent of being released, having been found not guilty.
Lord Inglewood: That is one reason why I said that I did not think that it was a particularly good comparison and perhaps it was remiss of me to go in that direction. But there are also the hardship provisions which come into play should that eventuality arise.
Baroness Hollis of Heigham: Perhaps we have reached the end of this debate. As I understand the intention when the Bill entered the Commons, if there was any doubt and the referral process took place, the disqualification from benefit for two weeks except where there was hardship applied to those voluntarily leaving work or leaving work for misconduct as well as to those excluded under the actively seeking work rules.
So far as I know, during the Committee stage in the other place, the Minister agreed that anyone voluntarily leaving work or leaving work as a result of being sacked through misconduct was entitled to continue to receive not just a hardship paymentand not to have to show vulnerabilitybut also to receive JSA paid in full throughout. That is my understanding of the situation; namely, that someone in those circumstances has JSA paid throughout the whole period.
The Minister is now insisting upon giving a different response about innocent until proved guilty or, indeed, guilty until proved guilty for someone actively seeking work from that applying to someone actually leaving work for what, in my view, is a much more serious offence; namely, misconduct in work. Can the Minister say why he will not align the actively seeking work benefit rules with those that he has already conceded for those voluntarily leaving work on grounds of either misconduct or for whatever reason?
Baroness Hollis of Heigham: The Minister's response will influence whether or not I seek the opinion of the Committee on the matter. As I said, the Minister conceded that JSA benefit should continue to be paid while adjudication is pending, but he is denying it for actively seeking work cases where a much greater area of discretion may apply and where, therefore, as the noble Lord, Lord Swinfen, said, someone will be fined until he is proven innocent. We all know from last year's figures that 180,000 people were confirmed innocent; but 90,000 of them would have had to wait for weeks without benefit under the provisions of the proposed clauses. Can the Minister respond?
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