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Lord McCarthy: My Lords, does not the Minister agree that the average period of disallowance is 20 weeks, which must mean that quite a lot of people suffer the sanction for 26 weeks?

Lord Mackay of Ardbrecknish: My Lords, my recollection—I accept that it is only a recollection—is that the average disallowance is fewer than 20 weeks. I do not have the figures to hand, but my recollection is that the period is more like 13 weeks. As I am not entirely sure that I am right, I shall check because I do not like to be wrong. I believe, however, that the noble Lord vastly overestimates the situation when he refers to 20 weeks. I think that my recollection of 13 weeks is nearer the case.

My point remains that, as I have clearly said, many of the points that my noble friend raises will be placed in regulations. However, I believe that claimants who have either failed to meet the necessary conditions for benefit, who have made themselves unemployed or who have failed to pursue an opportunity to take themselves off benefit should not automatically have access to benefit. People who are able to show that they would suffer hardship will be eligible for the hardship payments. I have made that position clear on a number of occasions and I do so again.

Lord Swinfen: My Lords, I thank my noble friend for that reply. My noble friend Lord Campbell of Alloway did not like the drafting of the amendment. I assure him that all parts are relevant to seeking work. The point is that the more restricted incapacity benefit makes less severely disabled people, people in poor health, need even more protection.

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The noble Lord, Lord Boyd-Carpenter, did not like to see "examples" in amendments. I suggest that he looks particularly at Clause 6(3) which begins:

    "The following are examples of restrictions".

Therefore, I am only following the Government's lead. I am sure that my noble friend would always expect me to follow the Government's lead although there are times when I try to improve the direction in which they are going.

Lord Boyd-Carpenter: My Lords, I am naturally very impressed by the noble Lord's loyalty to the Government and his indication that if the Government have provided something, it must be right. Personally, I do not accept that.

Lord Swinfen: My Lords, I could not agree more with my noble friend. I was only saying that in this amendment I was following the Government's lead. Perhaps they have taken me down a dead end.

I am tempted to seek to divide the House on this amendment, particularly given the fact that if these provisions are not included in the Bill, the only chance now of the Bill being improved or amended would be in the other place. However, bearing in mind what happened on my last amendment, I think that it would be kinder to the House if I was to seek leave to withdraw it.

Amendment, by leave, withdrawn.

6.15 p.m.

Clause 6 [Availability for employment]:

Lord McCarthy moved Amendment No. 9:

Page 5, line 43, at end insert:
("( ) Regulations shall provide that entitlement to a jobseeker's allowance is not lost without the claimant being given reasonable notice in writing of the grounds for such loss and a reasonable opportunity to comment on or challenge those grounds.").

The noble Lord said: My Lords, we return to the issue of the warning notice and to the point at which the employment officer suspects—he or she does not know, but merely suspects—that the applicant may not be actively seeking work. Warning notices used to be issued. There is some argument that warning notices may still be out there somewhere. Indeed, we were told during previous debates that there might be two notices or at least two letters, but that sometimes there would be no letters at all. This is an attempt to clarify the situation and to provide that there should be a warning notice.

The amendment states:

    "Regulations shall provide that entitlement to a jobseeker's allowance is not lost without the claimant being given reasonable notice in writing of the grounds for such loss and a reasonable opportunity to comment on or challenge those grounds".

It is not exactly the same as the amendment that was moved in Committee on 25th April because the noble Lord, Lord Inglewood, did not like the last part of that amendment which referred to "an opportunity to establish". The noble Lord felt that that would give too much strength to the applicant, so we are merely suggesting that there should be

    "a reasonable opportunity to comment on or challenge".

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Therefore, this is a somewhat weaker amendment, the object being to try to take the Government with us.

In that debate, I and other noble Lords both on this side of the House and the other tried to make four points. The first was that, as we understand it, before 1992 it was normal for employment officers to send warning letters to unemployed persons who they had reason to believe, or thought or suspected, were no longer sufficiently available for and seeking work. That used to happen before any reference to the adjudication officer. The first point, therefore, is that that was the tradition.

Our second point is that that appeared to us to be a very successful practice. It was an effective way of checking up on the situation. In 1989-90 28,910 warning letters were sent out. That point was made in the debate and was not contradicted by the Minister. As a result of the sending of those letters, there were 23,000 satisfactory replies—in other words, 23,000 of those who were written to were able to establish that they were actively seeking work. As a result, there were only 6,000 references to adjudication and only 2,000 disallowances. In other words, the success rate was something like 93 per cent.—at least, it was a "success rate" if you are concerned with natural justice and if you believe that an applicant who is suspected of not actively seeking work ought to have an opportunity to justify himself. Claimants were able to do that in 93 per cent. of all cases.

Our third point was that for inexplicable reasons—perhaps I should say for reasons about which the Government had not been sufficiently frank—as far as we can see the number of warning letters began to decline after 1989. There is some debate about the figure to which they declined and to whom those letters were sent. Our figures for 1991-92, which were not denied by the Minister, show that they had declined to 25,000 and that they declined further to 9,000 in 1993-94. Meanwhile, disqualifications rose. According to some figures, they rose from 2,000 to 113,000—an increase of some 5,000 per cent. I do not know whether those figures are accepted by the Government, but what is certain is that the number of disqualifications rose.

Therefore, we thought that there was a case in natural justice for the restoration of the warning letters. Clearly, they are of use and are a way of discovering whether or not the suspicions of the employment officer are justified. I should have thought that issuing such letters was only reasonable and fair on the ground of natural justice. Unfortunately, the Government's answers on that point were inexplicable. Four different grounds were given. I am merely trying to ask the Government which one they want tonight.

In the first place, the Minister went back on an understanding or statement which we thought had been made by the noble Lord, Lord Henley. In a debate in this House initiated by the noble Countess, Lady Mar, the Government appeared to us to be saying that, yes, they had abandoned the letter, but that that had not had any disadvantageous consequences in terms of disallowances or disqualifications. The noble Lord, Lord Henley, said:

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    "if there were further evidence that these regulations are catching those whom it is not intended to catch and are not dealing with those who consciously and deliberately fail actively to seek work, obviously we would then reconsider".—[Official Report, 1/12/92; col. 1332.]

That is why we thought that the Government might say that they were going to reconsider the position, as had been promised by the noble Lord, Lord Henley. The first problem was that they did not. They seemed to be saying that the letter had been abandoned but that that was not a bad thing.

Secondly, at col. 848 on 25th April, the noble Lord, Lord Inglewood, seemed to be saying that the letter was still being sent. He said:

    "Let me assure the Committee that under the JSA the jobseeker will receive full information about his or her position. The amendment is therefore unnecessary. Under current practice when a doubt is identified on a claim for unemployment benefit the claimant is notified in writing"—

so it is still there—

    "that the claim is being referred to an adjudication officer for a decision. The form explains the adjudication process in general terms. A further leaflet is available containing more details of each of the benefit rules. The claimant is invited to ask at the ES office for help with points not covered in either leaflet. We shall be following similar practices in JSA".

The trouble is that subsequently the noble Lord seemed to take a third position. He then seemed to suggest, to us at least, that they had stopped the letters and that they were justified in stopping the letters, and the stopping of the letters and the effect of our amendment in restoring the letters was a reason for not accepting the amendment. It was not now that it was unnecessary; it was that it was unacceptable. The noble Lord said again:

    "We must be careful about the perverse effects of the second part of the amendment. If it is intended to enable a jobseeker to be given a second chance"—

which of course it is—

    "to be available or to seek work actively in a given period, that would significantly weaken the incentive effect of the available and actively seeking work condition".

The Minister continued:

    "If a jobseeker does not take the necessary steps or has not been available for employment in any week, the employment officer must be able to refer the question on the facts of the case. He should not be hindered by considerations of what the jobseeker might do in the future, before the adjudication decision".

He seems to be saying that the Government believe that people who received the letter suddenly went out and started work—actively seeking, actively looking—and somehow the employment officer and the adjudication officer could not take into account what such people had done in the past. They had to take into account what they were then doing and because of that they were able to obtain their allowance in circumstances in which they were not entitled to it. That is why the Government do not send the letters.

I believe that that is all the following passage can mean, because the Minister seemed then to think that he had not referred to any letter at all. He said halfway through the debate:

    "I should have referred to the letter at the outset of my remarks. The letter merely enabled the claimant not actively to seek work until he was warned to do so. Active seeking is a clear condition of

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    benefit. The required steps are made clear to the individual at the start of his claim. Such a written warning in that regard should therefore be unnecessary".

We were—we are still—confused at that point. That was not helped when the noble Lord said:

    "There are two separate letters here. We do not send a warning letter to people telling them to start active seeking, but we send a letter to the claimant advising him that the matter is being sent to the adjudication officer".

The result of all that was that the debate in Committee began to be affected by arguments not merely about the letters—whether there was one or two letters—but whether during the period of one or two letters the individual claimant was still receiving his allowance. That is another matter which I should like the Government to clear up, because the Minister seemed to say (col. 850) that during the period of suspension the applicant was still receiving the allowance, whereas he seemed to be saying later that he was not. He said:

    "I am afraid that I honestly do not know. Perhaps I may deal with a point raised by the noble Baroness, Lady Williams, about people who might have difficulty in speaking English".

To try to bring the debate to a close we asked the Minister a number of questions. We have had no answers to any of those questions. So I put them at this late stage on Third Reading: are the letters still being sent? Are there 9,000 or 28,000 of them? Are there some letters or no letters? Are there two letters? If they are not sent to all applicants, on what basis are they sent? Whenever they are sent—if some are sent—when does the benefit stop? What do the Government think they are doing? When all this was put to the Minister he said he did not know the answer to all the questions, but he stated:

    "Needless to say, I shall write to the noble Lord having made sure that I am right in my description".—[Official Report, 25/4/95; cols. 848-853.]

I have to say that so far as I know I have received no correspondence from the noble Lord about any of those questions. The questions remain to be answered. There still seems to us to be an overwhelming argument for restoring the warning letter in the way that it operated before the Government cut it down. I beg to move.

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