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Earl Russell: My Lords, I am grateful to the Minister for the care he has taken in responding to the amendment. There is common ground on intentions. I understand why he has proceeded as he has, but I am still not happy. I think that he is trying to achieve something that would be very good if he could achieve it but which is impossible to achieve.

I understand why the Minister wanted an objective question, but I do not believe that amid the variety of people and jobs that might be concerned any such thing is possible. The noble Lord has chosen a question which appears to be objective. However, I do not believe that it is any such thing. Case law, regulation and confusion will make clear that it is not. I understand why it would be attractive to the Minister were it possible for the test not to be relative. That would make life a lot easier. So would a great many things make life easier which will not happen.

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To take the Minister's own example of his hypothetical nephew, which I much enjoyed, in general what he said about his nephew getting out of bed before noon may be perfectly reasonable and sensible. However, suppose, for example, that his nephew is seeking employment and is well qualified as a jazz drummer or a nightclub bouncer and regularly comes home late from any work he may get and goes to bed at 4 o'clock in the morning. In that case his getting out of bed at noon may not be altogether unreasonable. There is inevitably an element of relativity in the very nature of the whole question that the Bill asks. That is why I believe that this attempt to use compulsion and to set out the steps which people have to take is, at the end of the day, profoundly mistaken.

I do not believe that I shall change the Government's mind through the Division Lobbies, even were I to win a majority there. I shall come back to these questions in one form or another, but in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 30 not moved.]

Lord Swinfen moved Amendment No. 30A:

Page 6, line 30, at end insert:
("( ) Regulations shall provide that where a doubt arises as to whether a person is actively seeking employment or is to be treated as actively seeking employment, an income based jobseeker's allowance shall be payable pending a determination by the adjudication officer, where the person has placed reasonable restrictions on his availability as a result of illness or disability, and hardship would otherwise result if that payment were not made.").

The noble Lord said: My Lords, in moving Amendment No. 30A, I shall speak also to Amendments Nos. 31A and 31B.

The purpose of the first of the amendments is to enable disabled people who have placed some restrictions on the work for which they are available still to qualify for hardship payments and reduced income-related jobseeker's allowance if there is a doubt that they have not actively sought work in a particular week.

People who do not meet the basic labour market conditions of being available for and actively seeking work are to be disallowed jobseeker's allowance until such time as they change their intentions or behaviour to meet the conditions. That is set out in the jobseeker's allowance White Paper at paragraph 4.36. Where subsequently the Employment Service has some doubt about the conditions, there will be no hardship payment pending a final decision, unless the person is in a vulnerable group. The definition of "vulnerable" is therefore crucial in determining whether any payment is to be made at all.

The amendment seeks to do two things. First, it seeks to widen the proposed definition of disability to include people whose restrictions on their work availability resulting from a physical or mental condition have already been accepted as reasonable. That is an easily identifiable group of claimants who may otherwise be faced with no jobseeker's allowance payment at all. Secondly, the amendment only affects situations where there is a doubt about a claimant satisfying the condition of actively seeking work, not the availability condition.

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With an estimated 150,000 disabled people moving from incapacity benefit to jobseeker's allowance in its first year, it is important that a definition of sickness and disability should take account of the needs of that particular group of people, who may fail not only the incapacity test but also the labour market conditions of jobseeker's allowance.

An example from a citizens advice bureau shows that people who may not score enough points in the all-work test of incapacity may present problems in fulfilling the condition of actively seeking work. A bureau in eastern England reported the case of a client in his late 50s, who was living with his mother, whose benefit had been suspended for failing to show evidence that he was actively seeking work. The bureau said that he had trouble with reading, writing and communicating and became nervous when meeting strangers. The CAB described him as "slightly mentally retarded".

Unless classed as vulnerable, the claimant would have no access to any payments for at least two weeks and up to a maximum of 26 weeks. Furthermore, people who are not entitled to hardship payments have no recourse to social fund crisis loans for living expenses.

My noble friend stated that some people who are sick or disabled could fall within the definition of vulnerable and therefore qualify for hardship payments, but only where they have a serious medical condition (as reported in our proceedings for 25th April at col. 887 of Hansard) or are eligible for the disability premium (col. 873).

Regarding the phrase "serious medical condition", when my noble friend replies, will he clarify how that is to be defined, giving examples, and say what evidence will be required to verify the condition?

As regards the disability premium, it is likely that few people signing on following withdrawal of incapacity benefit will continue to receive the premium. In order to qualify for the disability premium in the first place, the disabled person has to be registered as blind or in receipt of disability living allowance care or mobility components. Research into invalidity benefit claimants indicates that fewer than one in five receives the disability living allowance or equivalent benefits for care and mobility needs. If a similar proportion is replicated in the numbers coming off incapacity benefit to sign on, less than 25,000 could qualify as vulnerable for hardship payments.

Restricting the definition of a disabled person to someone who is eligible for the premium is therefore likely to miss out many vulnerable people with ill health or disabilities, many of whom may have other needs which do not fall neatly into the qualifying conditions for the premium. Using as a definition people who have restricted availability on health grounds would be easier administratively as it is using a definition which has already been accepted and would include a wider group of people who would certainly be vulnerable. It would provide a much needed cushion for those disabled people who may have been moved from incapacity benefit on to jobseeker's allowance, many of whom would be likely to have to place some restrictions on their availability for work. Such people may be in

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danger also of losing jobseeker's allowance in the event of just a doubt—not proof—that they have not been doing enough to seek work.

The purpose of Amendment No. 31A is to treat as actively seeking work someone who is appealing against withdrawal of incapacity benefit. Amendment No. 31B treats as actively seeking work someone who is appealing against the withdrawal of incapacity benefit when scoring at least five points in the all-work test of incapacity.

The amendments seek to tackle the issue of people appealing against the withdrawal of incapacity benefit who may not be in a position to fulfil the labour market conditions for jobseeker's allowance. The amendments seek to treat such people as actively seeking work pending their incapacity appeal. It means that they would still have to show that they were available for work, albeit with some restrictions on their availability, but they would not be required to take steps actively to seek work until after their appeal has been heard.

The second amendment is a narrower version of the first as it would be limited to people who had attracted at least five points in the all-work test of incapacity, suggesting some significant disability. People scoring over five points could include someone who "sometimes cannot rise from sitting without holding onto something" and "sometimes cannot bend or kneel as if to pick up a piece of paper from the floor and straighten up again". That would score a total of six points. Situations where "strangers have some difficulty in understanding his speech" would score eight points.

In earlier debates on the Bill the Minister confirmed that signing on will not prejudice an incapacity appeal. However, he failed to answer the point that an incapacity appeal can prejudice a claim for jobseeker's allowance. There is already evidence that people appealing an incapacity decision are regarded by Jobcentres as not being capable of, or available for, or actively seeking, work, pending an appeal hearing.

I have recently had brought to my attention the case of a disabled person with polio. Because of his subsequent condition he was told that he would not be able to get work in any event and could not be considered capable of seeking work even though he wished to do so. If the Minister cannot concede the point about exempting such people from the labour market test, can he give some assurances that all incapacity appeals will take no longer than four weeks to be heard so that if people are stuck in a twilight zone between benefits it occurs only for a limited period of time. I beg to move.

6 p.m.

Lord Carter: My Lords, I am pleased to support this group of amendments from these Benches. The arguments have been extremely well marshalled by the noble Lord. There is no need for me to be other than brief.

We had a somewhat similar debate at a previous stage of the Bill. The amendments deal with a problem that we all recognise from different angles. It will be interesting to see how the Government reply to the cogent arguments of the noble Lord.

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Amendment No. 30A is carefully worded. It refers to "reasonable restrictions" on availability and the "hardship" which would result. It is important that the Minister answers the question put by the noble Lord, Lord Swinfen, and gives some estimate of those whom the Government consider will qualify for hardship payments. The amendment deals with the special situation of sick or disabled people and we have already discussed this at earlier stages of the Bill. The situation has been set out clearly. I hope that when the Government reply they will say how the situation regarding sickness and disability is to be taken into account, how hardship and vulnerability are to be defined, and so on. If the rules do not look after that group of people which is particularly hard hit, we believe it important that the Government make the position regarding sick and disabled people absolutely clear. Delays in determination by adjudication officers will be a specific problem for sick and disabled people who have enough problems seeking and finding employment.

A number of later amendments deal with different aspects of the problem. However, this group of amendments is intended to deal with one of the aspects, as the noble Lord, Lord Swinfen, explained. It is exemplified in Amendments Nos. 31A and 31B.

Amendment No. 31B refers to a person who scores five or more points in respect of one or more descriptions in the all-work test. That is clear. The amendments deal with a specific problem which the rules should deal with. We are pleased to support the amendment from these Benches.

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