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Baroness Seear: Does not the Minister now see what a great advantage it is to have a professor of history sitting on one's Benches?

Lord Mackay of Ardbrecknish: I might do better with a lawyer from some of the questions that the noble Earl asks, but that is another matter. I am reminded by my noble friend that I have one. My doubts about the noble Earl's question on the Magna Carta is that I am not entirely sure that it encompasses the whole of the UK. I suspect that it does not. My part of the UK was not involved in the Magna Carta, but that may be a subject upon which I shall have to take further legal aid. I suspect that I would not receive legal aid if I tried to get a definition of that!

Earl Russell: The Minister is quite correct on that.

Lord Mackay of Ardbrecknish: Perhaps I may return to the serious matter before us, not that I am suggesting that the Magna Carta was not and is not serious.

I understand the concerns that lie behind these amendments. The easiest way to deal with them is to take them in turn. Amendment No. 14 seeks to recognise that the circumstances of people who have a disability need special consideration. I would like to assure the Committee that we have most certainly taken the needs of people with disabilities into account in drawing up the JSA labour market rules.

I cannot accept the amendment because it would add an unnecessary level of detail to the face of the Bill and it is also technically deficient, since it refers to "restrictions" offering reasonable prospects of employment. I shall address the intention behind it, with which I can agree. I hope to be able to show that the fears expressed in putting forward the amendment are not justified.

I have given those assurances before to the Committee. Déjo vu occurs to me when I think about the answer I have to give. I have given assurances, and I give them again. We intend to carry forward into JSA the current provisions in unemployment benefit and income support which allow a person with a mental or physical condition which limits the work he can do to place restrictions on the nature, hours, rate of remuneration, locality or other condition of employment which he is prepared to accept where those restrictions are reasonable in view of his

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condition, and with no requirement that such restrictions should be inhibited by any variation in the prospects of securing employment

There is an important principle here. We wish people with disabilities and others with a mental or physical condition to be able to participate as fully as possible in the labour market. The noble Earl, Lord Russell, made that point in his intervention. Many people with severe physical and mental disabilities can and do participate successfully in the labour market. But we recognise that for some, though by no means all, jobseekers the reality will be that their condition will mean that there is necessarily some reduction in their job prospects because of their condition. That is the reality and we accept it. Provided that jobseekers in those circumstances remain available to the extent that their condition permits, we want to ensure that they may be entitled to JSA and to offer them all the general and specialist facilities which the Employment Service has available.

On one of the Committee days I outlined some of the extra money that we were going to make available to the Employment Service to deal in particular with those people who are likely to come off invalidity benefit and not receive incapacity benefit in response to questions similar to those my noble friend has asked again tonight. This formulation will in fact be more generous than the amendment, as it is quite possible that jobseekers may have a physical or mental condition which limits their availability but that does not classify as a mental or physical handicap. I suspect that the disfigurements mentioned by the noble Baroness might come within the scope of that phrase. I hope that the positive statement I have just made helps to reassure the noble Baroness and other Members of the Committee who have spoken on this point.

We want to include, not exclude, people with disabilities from JSA. But the amendment could mean that anyone dissatisfied and appealing against the incapacity test could get JSA even though they were not available for work or looking for it. I cannot agree with that. JSA is for jobseekers, and no matter how many conditions or limitations have to be put on because of mental and physical disability, fundamentally it is still for people who can work, who are looking for work and are capable for work. People who are not capable of work will receive incapacity benefit. I do not know how many times I shall have to repeat the point about the two stools, but I draw the Committee's attention, as I have done on a number of occasions, to Schedule 1, paragraph 2(1), which states:

    "The question whether a person is capable or incapable of work shall be determined, for the purposes of this Act, in accordance of the provisions of Part XIIA of the Benefits Act".

That, I have said on a number of occasions, should ensure that the two stools problem does not arise.

Where a person appeals against a decision that they are capable of work, they will be able to claim JSA pending the outcome of their appeal if they make themselves available and look for work.

I appreciate that Members of the Committee may be concerned that this will prejudice their appeal. As I have made clear —and I repeat it—the adjudicating authorities have made it clear in their judgments, and the chief

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adjudication officer confirmed in his published guidance, that making themselves available for work should not prejudice their appeal. There may be some people who do not wish to make themselves available for work pending their appeal. Existing IVB claimants, those in receipt of severe disability allowance and others who have been incapacitated for 28 weeks as of 12th April 1995 will be able to receive their full income support personal allowance pending their appeal if found capable at their first all-work test.

Any other person who first claims incapacity benefit on or after 13th April 1995 can also claim income support pending the appeal, although their personal allowance will be reduced by 20 per cent. because we do not believe that it would be reasonable to pay the full rate of income support for people who do not satisfy the normal conditions of entitlement.

I turn Amendment No. 16. I reassure the Committee that we are fully aware of the important role that disabled people can play in the labour market and of the difficulties which they can face. As I have said previously—and I am happy to say it again—we intend to carry forward the current provisions in relation to unemployment benefit and income support which allow a person with a mental or physical condition which limits the work that they can do to place restrictions on the nature, hours, rate of remuneration, locality or other condition of employment which he is prepared to accept when those restrictions are reasonable in view of his condition. Such people will not be required to show that they have reasonable prospects of securing employment. I believe that in that way our proposals already meet the concerns of my noble friend Lord Swinfen.

However, we prefer not to use the terminology in this amendment for two reasons. First, disability is not a term defined in the Bill and, secondly, people who are ill will be deemed available for work only for limited periods. There is, however, a difference between the two categories, since a person with a disability claiming JSA will be capable of and available for some work, but a person who is ill may not be capable of or available for work. Under JSA, we will introduce a specific easement in the treating provisions which will give people who are sick the chance to stay on JSA and be treated as available for work for up to two consecutive weeks. That will avoid the need for people to terminate and start claims within short periods of time, while ensuring the JSA is focused on the labour market.

Our proposals to set out in regulations that jobseekers can restrict their availability in line with their mental or physical condition should cover all jobseekers, including those who are disabled, who wish to restrict their availability on those grounds, depending on their particular circumstances. That is an example of why these matters, which are complicated and detailed if they are to cover the many situations that all Members of the Committee wish them to cover, are best left to regulation.

We shall also ensure that people's skills, qualifications, abilities and any physical or mental limitations will be taken into account in considering the steps that they have

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taken to look for work. This formula has been tried and tested in current legislation and we believe that it is the right basis for JSA.

Those points aside, I acknowledge the anxieties of Members of the Committee about the balance between primary and secondary legislation. The regulations to which I have referred, and which are included in the new clauses that I have been discussing, will be dealt with by the affirmative procedure. Therefore, Parliament will be in a position to give a view on what we bring forward. However, I have made it crystal clear, and I know that words from Ministers at the Dispatch Box have gained slightly more importance as regards courts of law and so forth. I hope that the fact that I have been prepared to try to outline in detail the way in which we envisage the system will work as regards disabled people and those found to be insufficiently disabled to qualify for IB will reassure the Committee. I hope that the noble Baroness, Lady Williams, and my noble friend Lord Swinfen will withdraw their amendments.

8.45 p.m.

Baroness Hollis of Heigham: The Minister said that he believed that his answer would cover all jobseekers. How does he explain the fact that people who were refused invalidity benefit were, on the grounds that they were partially disabled, refused unemployment benefit? The RADAR case was more than one-third. How does the Minister explain the matter if what he says is correct?

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