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Lord Inglewood: I am grateful to the noble Earl, Lord Russell, for explaining his position in regard to this amendment and I now understand the point he is trying to make. It must be axiomatic that new entitlement conditions cannot be introduced through regulations as a matter of principle. If we look at Clause 6, subsection (1) is qualified by subsection (2). It is merely a matter of defining or refining the matters that are determined in new Clause 6(1).

In relation to the clause, it is clear that subsections (2) (a) and (b) relate to specific restrictions which cut down the scope of a wider provision contained in Clause 6(1). But the important point made by the noble Earl is one we discussed earlier this evening, at the beginning of this afternoon's debate. We explained to the Committee that we do not wish to extend the eligibility criteria by regulation; we believe that they should be set out clearly on the face of the Bill. The noble Earl is concerned that in some way, through the use of regulations—a mechanism of law-making which, from his perspective, is one which does not provide suitable parliamentary scrutiny—we will impose new conditions on the jobseeker which are not on the face of the Bill.

I must return to our earlier debate. As my noble friend explained, in regard to new Clauses 6 and 6A we intend that regulations made under the new clauses should be subject to the affirmative resolution procedure. That will bring Parliament further into the consideration of matters which, as the noble Earl explained, are obviously important to the working of the Bill. But the fundamental point—it is one to which I must return—is that we cannot add to the entitlement conditions on the face of the Bill by introducing new matters through subordinate legislation, because the subordinate legislation locks back to the matters which are on the face of the Bill.

I understand that the noble Earl may feel that that is an unsatisfactory reply. For him to take that view would be consistent with the position he has been arguing ever since we began to talk about this point some days ago. We do not seek now under existing legislation, nor do we seek under the JSA legislation, to extend the conditions of eligibility through secondary legislation.

8 p.m.

Earl Russell: I am grateful for that reply. I hear what the Minister is saying. He is perhaps a little optimistic

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about it. He said—I think I have his words down correctly—that it is axiomatic that regulations can create no new conditions. But paragraph 17 of Schedule 1 states:

    "Regulations may require additional conditions to be satisfied with respect to the payment of a jobseeker's allowance to any person who is, has been, or is to be, in employment which falls within a prescribed description".

That appears to be a specific gift of vires to impose additional conditions. I understand what the Minister says about the vires being locked back to what is in the Bill. I understand that the point is perfectly genuine. I am not convinced that it is sufficient, because the conditions are simply the very general ones of being available for employment and actively seeking employment.

I have had no answer at all to what is my very much deeper concern that the Bill is attempting to spell out in such detail what shall be taken as evidence of actively seeking employment and of being available for employment that the tests, just like performance indicators, take over from the real thing, that the shadow displaces the substance and that the things which are supposed to be evidence of actively seeking employment will themselves be elevated into conditions.

Clause 6(3) of the old Bill is a classic example of that, and I notice that no attempt has been made to change it in the new Bill. All the way through the Bill these tests and steps are being spelt out through regulation. They are going to be taken as evidence of the primary criterion—I think very often inappropriately taken as evidence; and, if inappropriately taken as evidence, if they appear to the Minister to be suitable tests when they do not appear to the rest of us to be suitable tests, they will appear to the rest of us to be new conditions of eligibility and, what is more, they will appear to the claimant to be new conditions of eligibility. I cannot let this Bill go until I can get some satisfaction on that point. I should be very grateful if I could have an answer to it.

Lord Inglewood: I shall begin by referring to the point raised by the noble Earl about Schedule 1. It will be used in very particular circumstances to adapt the JSA regime for groups who have access to benefit under special conditions who are given more favourable access in general. The two groups concerned will be share fishermen and temporarily stopped workers.

The general point which the noble Earl raised must be one of concern but it is certainly not the Government's intention that items which are evidence should by some process of osmosis or transmutation suddenly find themselves turned into items which are articles of principle and items of law. The noble Earl made that distinction and explained that he was concerned that this process may take place. All I can do, standing here at the Dispatch Box, is to recognise that there is at least a theoretical possibility that the distinction he makes could occur and explain that it is not the Government's intention that the distinction between evidence and law should be blurred in the manner in which the noble Earl describes.

Earl Russell: I am grateful for that reply. I am particularly grateful for the reply about paragraph 17 of Schedule 1. If that could be spelt out rather more clearly, it might save me from moving an amendment to delete

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that later on. The intention is one I can only welcome. But the words at present do not confine the Government to the intention the Minister stated.

On the question of evidence and intention, let me take a parallel case. Suppose one of our spouses should require as evidence that we love them that we present them with 12 red roses every day. We might think that there was a disjunction between the deed and the intention and that it was possible for one to exist without the other. The spouse would not think that. She would not think that she was creating any new test of love. She would simply think that if one loved her one would do what was required. The perception of those who are imposing the test is necessarily different from the perception of those who are receiving it. The Government really have to take that into their head. I understand that they do not think they are imposing new tests, but do they understand that the rest of the world, and possibly the courts as well, will not see it the same way?

Lord Inglewood: Perhaps it would be useful to talk about paragraph 17 of Schedule 1 on another occasion. The noble Earl was talking about the distinction between evidence and law and instanced the case of 12 red roses. The key to the process on which the Jobseekers Bill will proceed is that these things must be measured not subjectively but objectively—whether it is by the adjudication officer or ultimately by the Social Security Appeals Tribunal, the commissioner or the courts. In those instances they will have to act in accordance with the principles of natural justice. We have introduced concepts such as reasonableness and good cause—the noble Earl has referred to them and has expressed concern about the way in which they are bedded into the Bill—in order to give that objective standpoint from which these matters have to be judged rather than the purely subjective one which the noble Earl is concerned will find its way into the workings of the entire Bill.

Earl Russell: The Minister has spoken with the best of intentions but I think he has given vent to the deepest fallacy in Whitehall. That is the notion of the objective test. We are familiar with objective tests. The noble Lord, Lord Mackay of Ardbrecknish, and I have had many arguments about an allegedly objective test for incapacity benefit. The point about these tests is that they appear objective to the person who composes them but to anyone else they appear to be no such thing because they represent what appears to be objectivity to one particular mind with one particular outlook.

It really is not convincing. The desire to be objective is of course fine but it results in a search for outward and visible signs which may in fact be quite irrelevant to the criteria we are really trying to get at. It is the same with the whole Whitehall machinery of performance indicators. In my own professional field a good score on the performance indicators and a good performance are absolutely totally different. The one may totally inhibit the other.

I understand that the Minister thinks he is being objective. That really is not the human condition. The Minister is trying to be objective and that is a very, very different matter. I really must ask him to think a little more about this before the next stage of the Bill, when we must

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return to it and, I am afraid, return to it in a great many places. It really will not do as it is. In the meantime, I beg leave to withdraw the amendment.

Amendment No. 12, as an amendment to Amendment No. 4, by leave, withdrawn.

[Amendment No. 13, as an amendment to Amendment No. 4, not moved.]

Baroness Williams of Crosby moved, as an amendment to Amendment No. 4, Amendment No. 14:

Line 23, at end insert:
("( ) Notwithstanding the provisions of subsection (3) above, in the case of claimants suffering from a physical or mental handicap restrictions appropriate to a claimant's capacities shall be acceptable even if they do not offer a reasonable prospect of employment.".

The noble Baroness said: In this amendment I can follow fairly directly from the point made by my noble friend on a previous amendment and perhaps again cast some light for the Minister as to why there seems to be so many amendments on these lines from this side of the Committee.

The problem with the Bill—and the Government's amendment has gone some way to meet it and, again, we are very grateful for it—is that it leaves the issue of the determination of the definition which is now on the face of the Bill still subject to regulation. In many cases, although those regulations may be conceived and drawn in the most farsighted and imaginative way, this is a Bill which will turn into an Act and that Act will be on the statute book. Governments come and go with different Secretaries of State for Employment. One has to allow for the possibility that they may not all be balanced and fair in their approaches. Therefore one has to look at what is actually said on the face of the Bill.

Therefore, I particularly draw the attention of the Minister to two aspects. The first is the broad aspect and I believe that my amendment and the ones grouped with it address themselves to the issue that Ministers will know has concerned this Committee time and again in the course of this Bill. I refer to the worrying gap between people so disabled or otherwise affected by mental or physical problems, that they are unable to meet the disablement income benefit tests yet for reasons connected with those disabilities they are also unlikely to get employment.

I shall give one striking example. Someone may have a physical disfigurement like a birthmark. That might mean that it was very difficult for him to get a job, although he tried very hard to do so, in virtually any work that involved interaction with the public yet for the purposes of disablement income benefit he would certainly fail to satisfy the conditions laid down. It is this gap, described at one stage by the noble Baroness, Lady Hollis, as the gap or stools between which disabled or handicapped people might fall, that this amendment addresses.

Secondly, the amendment uses the verb "shall" instead of what is repeatedly in the Government's amendments, especially new Clause 6B; namely, the verb "may". "May" leaves it to the employment officer to decide whether to take notice of these conditions, but "shall" requires him or her to do so. Therefore, this amendment lays down that the employment officer shall take into

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account the restrictions that are appropriate to the claimant's capacities where they arise from a physical or mental disability.

The reason we have put in "shall" is that we want it to be a condition that has to be taken into account by the employment officer when he considers the position of the claimant and not one which is open to his or her discretion. Of course, for many claimants that is not relevant, but for those where it is relevant, we believe that it is part of the duty of taking into account genuine—and if I may use the Minister's own term—"objective difficulties"—and that shall be a requirement made on the employment and adjudication officer and not be simply something that he may or may not take into account.

The noble Lord may be able to assure me—to quote an earlier part of the Bill—that for 'may' we may read 'shall' and for 'shall' we may read 'may' which would go some way to comfort me, but not a very long way. Can the Minister address the main purpose of this amendment which is to deal with a particular group of our fellow citizens who, through no fault of their own, are disadvantaged in seeking employment? The terminology I have used is very close to that used by the noble Lord, Lord Swinfen, in Amendment No. 16. It tries precisely to indicate that work should be sought by a disabled person, that that disabled person should be available for work, but it necessarily must be within the terms of what his or her mental and physical capacities allow him or her to encompass. I hope that the Minister will take at least a sympathetic view considering the great difficulties in getting employment which already apply to this particular group of our fellow citizens. I beg to move.

8.15 p.m.

Lord Swinfen: Grouped with the amendment of the noble Baroness, Lady Williams, are my Amendment Nos. 15 and 16. The purpose of Amendment No. 15 is to allow people appealing against a decision that they are not entitled to incapacity benefit nonetheless to be treated as available and actively seeking work until the point at which their appeal is heard. In the first year of the jobseeker's allowance at least 150,000 people are expected to be considered capable of work and therefore to leave incapacity benefit or income support and disability premium to sign on for the jobseeker's allowance. The Government have stated that in the year 1996-97 they expect about 190,000 appeals to be lodged against a decision that someone is capable of work, as reported in the Official Report of the other place on 28th March at col. 556.

Most of those 190,000 people will have little choice but to sign on as unemployed pending their incapacity appeal. They will have little choice because many people may want to protect their national insurance record by registering as unemployed. If they lose their incapacity appeal they will not be entitled to any national insurance credit for the period between the withdrawal of their incapacity benefit and the date of the appeal. As appeals are taking some 26.6 weeks, as reported at col. 745 of the Official Report of the other place on 17th March this year, that means that someone could lose half a year's national insurance credit if they lose their incapacity appeal.

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The introduction of the 20 per cent. reduction in income support payments for people who do not sign on pending appeal, is not only an appeal penalty, but may result in additional numbers believing that they have little choice but to sign on for the jobseeker's allowance. Where the person's capacity for work is at the heart of their appeal, it makes sense, in my view, to treat the person as available for and actively seeking work just for the period pending their appeal. It makes sense because it is futile to make Employment Service staff assess someone's entitlement to the jobseeker's allowance when they may not qualify for it after a matter of weeks. It is likely to be time-consuming to assess what restrictions someone may need to place on their availability and to check on the steps that they are taking to actively seek work. It should not be forgotten that the employment staff will have the additional work load of disabled people coming from incapacity benefit and income support, whether appealing or not. If the staff have to spend their time chasing disabled people to ensure that they are really looking for work, they will have less time to assist other long-term unemployed people into jobs which, of course, is the whole point of the Bill.

Treating people as available and actively seeking work also makes sense because the individual is not placed in the position of having to show that they are available and actively seeking work when they may be ultimately considered incapable of all work. Already there is evidence from the citizens advice bureaux and disability organisations that Jobcentres do not consider that someone is really available and actively seeking work pending an incapacity appeal. That is hardly surprising given the logical inconsistency in a claimant being asked to present as being both capable of work and incapable of work at the same time. It does not sound logical.

If people fail the availability and actively seeking work conditions, they may be shunted back to the Benefits Agency for reduced rate income support. Such a person could also appeal against the decision that they were not available for, or actively seeking work, thus having two appeals in progress at the same time, one on incapacity and the other on the jobseeker's allowance. Surely that is not the Government's intention. It would be costly in terms of distress to the individual and to the department in terms of administration.

With regard to Amendment No. 16, which is also in my name, its purpose is to place on the face of the Bill the current law which allows for disabled people to restrict their work availability and not have to show that they have a reasonable prospect of finding work. The statement made by my noble friend during the Committee stage earlier on this Bill indicated that the intention is to carry forward current provisions about restricting work availability in the jobseeker's allowance. These appear in part in the Government's new clause.

Despite statements that the availability rules are to be carried forward, there remains some confusion about the precise position of disabled people who place reasonable restrictions on their availability. In Committee on 25th April, my noble friend was asked to explain his response (in the Hansard record of the debates on 20th April) when he stated that the acceptability of restrictions on availability would depend on the individual

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demonstrating a reasonable prospect of securing work, as reported in col. 626, which is the reverse of the current rules. This issue does not appear in the Government's new clause. When answering, can my noble friend please clarify that point?

As already mentioned, with at least 150,000 more disabled people having their incapacity benefit withdrawn and therefore signing on, the Employment Service will be faced with an unprecedented number of disabled people who need to restrict their availability. Disability organisations remain concerned that the current law should be reproduced in full and that there should be clear guidance to Employment Service staff about the interpretation of these conditions. Placing the conditions on the face of the Bill will go some way toward ensuring that staff, claimants and advisers are clear about the conditions of entitlement.

There is already evidence that the system is failing to provide. I am sure that my noble friend will appreciate that the amendment will ensure that disabled people will be able to restrict their availability without consideration being given to their prospects of work, given these restrictions. It merely reproduces current law and will clarify the present position.

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