Jimmy Hood (Lanark & Hamilton East, Labour)

I would like to inform the Committee that given the wide-ranging amendments, it is not my intention to allow a clause stand part debate after we have discussed the amendments.

John Robertson (PPS (Dr Kim Howells, Minister of State), Foreign & Commonwealth Office; Glasgow North West, Labour)

I beg to move amendment No. 180, in clause 2, page 2, line 20, at end insert

‘irrespective of the age of the claimant’.

Jimmy Hood (Lanark & Hamilton East, Labour)

With this it will be convenient to discuss the following amendments: No. 181, in clause 2, page 2, line 25, at end insert—

‘(1A) The total amount payable under subsection (1) above may not be less than the relevant rate or rates of benefit payable under paragraph 2A of Part 1 and paragraph 2 of Part 2 of Schedule 4 to the Social Security Contributions and Benefits Act 1992 which would have been payable to the claimant on the day immediately before section 2 of this Act comes into effect had he made a claim for and otherwise been entitled to those amounts.’.

No. 182, in clause 2, page 2, line 35, at beginning insert ‘subject to subsection (1A)’.

No. 177, in clause 2, page 2, line 40, leave out paragraph (c).

John Robertson (PPS (Dr Kim Howells, Minister of State), Foreign & Commonwealth Office; Glasgow North West, Labour)

May I, too, welcome you to the Chair, Mr. Hood? I know that your words of wisdom about temptation will be taken on board by every Member, even myself. There are three kinds of MP in the Room today—the good, the bad and the weak. I might be weak, but I am never bad, so I shall do my best to adhere to your instructions.

I tabled my amendments in order to probe the Government and to tease out some more information from them. Clause 2(1) deals with the amount of contributory allowance. The amount of the contributory ESA is not set out in the Bill, but will be set out in regulations. Page 42 of the Green Paper states that the additional amount for the work-related activity group

“will fix the total received by a claimant at a rate above the current long-term rate”.

In respect of the support group it continues:

“After the assessment phase, they...will receive more money than they do now.”

It is important that while we are asking people to take part voluntarily, we look after them to ensure that they are not worse off and that we protect the most vulnerable at all times. Under the IB scheme, additional amounts can be paid if conditions are met. They are age-related and adult dependent additions. The intention is that the ESA will not contain those additions.

To ensure that people on ESA are not worse off than on the current scheme and taking the statements in the Green Paper to mean that no one will lose out financially, the amount of contributory allowance must be at least equal to the stated rate of the IB scheme, including any additions to which they will be entitled; otherwise, the effect will be to push more people into the means-tested element of ESA. That might be the Government’s wish and unless someone has come up with a better way of assessing whether people need allowances, I appreciate that we must go down the road of means-testing. I hope that the Minister can assure me that the effect on those who most need help will be considered individually.

In conclusion, these amendments are small but the amount of money that people receive in cases of hardship must be looked at and taken care of. These are probing amendments because I want to hear from the Minister that the Government will always consider the people who most need help.

Jeremy Hunt (Shadow Minister (the Disabled), Work & Pensions; South West Surrey, Conservative)

I want to speak briefly because the hon. Gentleman has raised some interesting points. On the precise level of the benefit, can the Minister confirm  whether he intends that people who go on to ESA on an income-related and contributory basis will be given the same level of benefit? Obviously, the income-related basis will take them up to a certain level of income, but the intention is that that level should be the same. I am concerned about minimising complexity in a system that is already complicated.

On the level of benefits and ensuring that people do not lose out, I notice that the intention is that people on the support element of the package will receive slightly more than those on the work-related element. It is extremely welcome that people with the severest disabilities will be given additional help, but it is also the Government’s intention that people should transfer from the support element of the package to the work-related element. One case study in the regulations is of someone who transfers from one to the other. Was there any evidence in any of the pilots that people are deterred from transferring from the support element to the work-related element because of the small reduction in benefits? That would be of great concern as the purpose of the Bill is to move people towards the world of work.

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

In response to the brief points that have been fairly raised by my hon. Friend the Member for Glasgow, North-West (John Robertson), as he said, the amendments refer to the rate of benefit and we said throughout the process—in the Green Paper and since—that all existing customers will have their rate of benefit protected and new customers will have a higher rate of benefit than the current long-term rate of incapacity benefit.

Amendment No. 180 would introduce benefit rates into the Bill, but the Government’s commitment is about protecting rates for existing claimants and putting future customers on a higher rate than the current long-term IB rate.

There was an important concession on benefit rates in the Green Paper. We had initially intended to set a youth rate in the main phase. Not unreasonably, representations from the TUC and others said that that would be the wrong thing to do, so we announced that we would not be introducing a youth rate in the main phase, which has been welcomed as an important concession.

Three different rates will remain in the assessment phase—

Adam Afriyie (Windsor, Conservative)

On the issue of rates for ESA, can the Minister confirm that the level will be similar, not directly equivalent, to the ESA that has been available through the pathways to work pilot? Will it be at the same level?

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

We have announced our intention that the ESA rate will be above the current long-term IB rate. The hon. Gentleman would not expect me to go further than that today but I shall make a couple of points on the comments made by the hon. Member for South-West Surrey. There remain three different rates in the assessment phase: one for customers aged under 18; another for those aged 18 to 24; and another for  those of 25 and over. The reason for the assessment phase is to ensure that the rates line up with jobseeker’s allowance rates.

We do not want to make any assumptions during the assessment phase about a person’s capability, which is why we deliberately sought to align benefit rates with the JSA rate in the three-month assessment phase. That means that the customers who are not entitled to the employment and support allowance can move back on to JSA at the existing rate.

As the new age discrimination legislation shows, the Government are committed to combating unfair treatment on the grounds of age; in the case of benefit levels there are differentials because in general younger people are likely to have fewer demands on their income. For example, they are less likely to have dependants and more likely still to be supported by their family. I acknowledge that those are generalisations, but they have permeated the benefit system for many years.

We have said that no young people on incapacity benefit now will be worse off under the employment and support allowance. I go further: we will continue to make special provisions so that many young people can access the contributory allowance even without meeting the national insurance contribution conditions. That is a small measure in the Bill but it is very important as it removes any unforeseen penalisation of young people on the basis that they are unable to qualify for the contributory allowance because of their age.

We are introducing an entirely new structure for the ESA which moves away from a system where benefit rises with the length of incapacity, which we believe undermines incentives to return to work. We have made it clear that existing customers’ benefit will be fully protected and the new structure ensures that new customers will gain after the end of the assessment phase. The allowance has a two-tier structure because it is important to distinguish between those whom we would reasonably expect to participate in work-related activity and those whom it would not be reasonable to encourage to do so.

I assure my hon. Friend the Member for Glasgow, North-West that we are determined not to write anyone off but we recognise that some people on ESA will have severe health conditions and disabilities, and they will need our support. The existence of the support component will enable us to provide extra financial support to those who suffer the most severe conditions.

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

I was on the verge of drawing my comments to a conclusion, having offered reassurance to my hon. Friend the Member for Glasgow, North-West that the benefit rates of current customers will be protected. In respect of new ESA customers the commitment will be above the present long-term IBA rate, as I said.

I want to turn briefly to two specific questions: the first was about the income allowance and whether the contributory level will be the same. It is our intention to set the contributory level and if a person on the income allowance has no other income, it will of course be at the same level. However, with the income allowance, as with other benefits, the state will take additional income into account in any assessment. In general, what was suggested was correct.

We will discuss the second point on the existence of a support group a little later, but the hon. Gentleman asked about the evidence provided by pilot schemes. We had not set up the structure when we started the pilots, so the structure will not be used with the new benefit until 2008, but our manifesto stated that we would provide additional financial support to those with the most severe disabilities. We have to structure that carefully so that we do not write anyone off. It is important to ensure that that when creating a support group to support those for whom there is no conditionality—they will get a higher level of benefit—that we do not reintroduce a version of incapacity benefit for a relatively small but important group of people.

For example, we are now considering how to ensure that those in the support group—it is based on a limited capacity of work, with assessments being made through the severe disablement allowance—can nevertheless say that they do not want to be written off; we are seeking to ensure that those folk can volunteer for, and not be forced into, the support that is available to others. We have worked through the details, but it is important to set out the principle. Although there is no conditionality and people get a higher rate of benefit, we also wish to say clearly to each individual in the support group that they can volunteer for the appropriate support. That is an important distinction when compared with incapacity benefit. I hope that I have reassured the Committee.

With those comments, and given the tone in which my hon. Friend the Member for Glasgow, North-West moved the amendment, I encourage him to consider withdrawing it.

John Robertson (PPS (Dr Kim Howells, Minister of State), Foreign & Commonwealth Office; Glasgow North West, Labour)

I thank my hon. Friend for his words. Needless to say, I am convinced by his argument; however, I shall keep an eye on future matters. I beg to ask leave to withdraw the amendment.

Danny Alexander (Shadow Minister and Disability Spokesperson, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

I beg to move amendment No. 184, in clause 2, page 2, line 21, leave out ‘support component or the’.

Jimmy Hood (Lanark & Hamilton East, Labour)

With this it will be convenient to discuss the following amendments: No. 185, in clause 2, page 2, line 22, leave out ‘are’ and insert ‘is’.

No. 186, in clause 2, page 2, line 26, leave out subsection (2).

No. 187, in clause 4, page 4, line 16, leave out ‘the support component or’.

No. 188, in clause 4, page 4, line 21, leave out subsection (4).

Danny Alexander (Shadow Minister and Disability Spokesperson, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

My intention is to probe the Government about the rationale and structure of the two-tier benefit and the support group, the criteria for  including people in the support group and how it is intended to work in practice.

Conceptually, at least, it is an important point. In the context of our brief discussion on the longer-term objective of simplifying the benefit system, serious questions have to be asked about the justification for having a higher rate of benefit for the support group. Is the Minister’s justification that it will replace some of the income lost because of the likelihood of someone being on benefit for longer? Is it trying to meet the extra costs that such a person might have because they suffer a more severe impairment or condition? If it is the latter, might it not make more sense simply to have one rate of ESA, and to provide the additional support through the mechanism of the disability living allowance? That would have the further benefit that the additional amounts would be provided on an extra-cost basis and would not necessarily be withdrawn when the person receiving them found work.

If the longer-term objective is to move to a single working-age benefit, having the two different rates will be an additional complication that might not be necessary. The objective—it is a good one—of meeting the extra costs of people who are more severely impaired or disabled might better be met through the disability living allowance system. That is food for thought for the Minister, and I invite him to explain in full the rationale behind the two components.

Jeremy Hunt (Shadow Minister (the Disabled), Work & Pensions; South West Surrey, Conservative)

Does the hon. Gentleman not share my concern that having the support level at a higher rate could have an unintended consequence? Those who get on to the support level will want to protect their position and will not want to risk going on to a lower level by transferring to the work-related part of the package. Is that a cause that drives him to move his amendment?

Danny Alexander (Shadow Minister and Disability Spokesperson, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

There are two different unintended consequences. The first is that which the hon. Gentleman describes, but the difference between the support component and the work-related activity is not only the level of benefit, but the level of obligation or conditionality of that benefit—the exchange for undertaking or not work-related activity. Both could provide an incentive.

David Ruffley (Shadow Minister, Work & Pensions; Bury St Edmunds, Conservative)

Is not there another difference? If a man or woman were on the work-related component, they could access cognitive behaviour therapy through condition management programmes and so on. There would be a difference in the level of active support.

Danny Alexander (Shadow Minister and Disability Spokesperson, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

The hon. Gentleman anticipates a point I was going to make. There are questions to be answered. The Minister said that those people in receipt of the support component will have the opportunity to opt in to employment support and other pathways aspects. That is welcome, but will the Minister guarantee the same opportunities for those who go into the support group, given the concern I expressed this morning about the finance for the introduction of pathways to work?

The provision is calculated on the basis of assisting principally new claimants, not necessarily “the stock”—a ghastly term used in such proceedings—of claimants.  Taking one step back, with new claimants in the support group, will the Minister describe how it will work in practice? Will he assure the Committee that resources will be available for those people in receipt of the support components, so that they can take part in those opportunities?

Tim Boswell (Shadow Minister, Work & Pensions; Daventry, Conservative)

As I interpret the hon. Gentleman—and I shall be grateful for his confirmation—he fears that, with reference to any point decision, Ministers might find it more convenient to park persons in the support group and pay them off with a higher allowance, rather than commit resources to their re-engagement in the labour market. Ministers might also find it more convenient to do similarly with new entrants, who would go on to the employment and support allowance, leaving substantially untouched the historic cases who are on incapacity benefit. Other members of the Committee might share the hon. Gentleman’s fears.

Danny Alexander (Shadow Minister and Disability Spokesperson, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

I am not so fearful about the first point. From the Minister’s tone, I genuinely do not think it his intention to try to park people in the support group. When so many provisions are left to regulations, however, there is the risk that a future Minister—from another party perhaps—might see the convenience of the point that the hon. Member for Daventry outlines.

On the other hand, there is great uncertainty about the “stock” of claimants, and how people from that group who end up in the support group will access help, given the restricted funding on offer. First, what is the conceptual basis for that distinction and the justification for the different rates? Secondly, I should be grateful if the Minister could flesh out the way in which the provision will work in practice.

The criteria for inclusion in the support group have not been provided, so the Committee is being asked to endorse a division or distinction that has not been outlined in detail, let alone rationalised. Will, for example, the distinction between the support group and the work-related activity group be determined principally on medical grounds, or by other criteria? Will the Minister say something about that? With reference to my earlier point, will other labour market disadvantages, such as the refusal of employers to provide employment opportunities for certain categories of people, be taken into account? I know that several hon. Members have expressed particular concern about the exclusion from the labour market of people with mental health problems. Will other factors such as child care and care responsibilities be considered when making the distinction?

The question that still has to be answered is how easy will it be in practice to draw a clear dividing line through the operation of the revised personal capability assessment. The decision as to whether someone qualifies for the support group rather than the work-related activity group will be taken very quickly in the PCA. That will determine whether someone has to come back 10 minutes later for their work-related, health-focused assessment to establish the amount of work-related activity that they can  undertake. If we could hear a bit more, therefore, about the dividing line and how it will be established in practice through the PCA, it would be gratefully received.

Perhaps the Minister could also say a bit more about the difference in income for the support group, as against other ESA recipients. Will the increased amount be determined on the basis of the likely duration of benefits or extra support requirements? Importantly, how will the dividing line work as regards people with fluctuating conditions? Several hon. Members have mentioned such conditions and, depending on how the dividing line is drawn in the PCA, it would be quite possible for someone to be assessed one day and put in the support group, but to turn up another day, when their condition was going through a better phase, and end up in the work-related activity group. Clearly, that would have substantial implications for the conditionality regime in which that person might be engaged and for the income that they would then receive.

For a number of reasons, therefore, I am concerned about whether the distinction is needed and, if it is, about how it will work in practice. I would be grateful for the Minister’s response before I decide how to proceed on the amendments.

Adam Afriyie (Windsor, Conservative)

I have just one point to make, which is of great concern to me. It relates to those who suffer a mental health challenge and, in particular, to mainstream sufferers with bipolar depression or one of the various flavours of depression that are around, of whom there are approximately 2 million to 3 million at any one time. There is an enormous number of people in the variable groups that we are discussing, and some within them—particularly those with depression—are among the most vulnerable people in society. Will the Minister clarify how the Bill will give due heed to the needs of those people, whose conditions vary from day to day? That is my primary concern in relation to these provisions.

Jeremy Hunt (Shadow Minister (the Disabled), Work & Pensions; South West Surrey, Conservative)

I support several of the sentiments expressed by the hon. Member for Inverness, Nairn, Badenoch and Strathspey. If we stand back from the Bill, we see that there are some general themes. It is important to think not only about the Government’s intentions in the Bill—Conservative Members share many of them—but about what will happen in practice, when the Bill is implemented. When we step back and take a helicopter view of the Bill, we see that there is one group of people whom the Government consider it reasonable to ask to look for work and then to work, and another group of whom they do not consider it reasonable to make that request.

In the Bill, the Government aim to solve the problem of those whom it is reasonable to ask to look for work, and that is what the work-related component of the ESA will do. The trouble is that the same opportunities do not appear to have been made available to those whom it is not reasonable to ask to look for work. The Bill is a huge opportunity not only for those with milder disabilities, but for those with more severe disabilities who are looking to it to give them the opportunity, perhaps for the first time, to be included in the world of work. For example, people with learning disabilities might require a huge amount of coaching, and there  might need to be a huge amount of employer support. That is exactly the kind of thing for which a pathways adviser would be perfect. We must be careful that those kinds of people do not get parked.

There is something good and something bad about what the Government have done. The good thing is the statement by the Secretary of State that people in the support group

“will be able to volunteer to participate in work-related activity and access all the appropriate support available, but it will not be a condition of their entitlement to any part of their benefit.”—[Official Report, 24 July 2006; Vol. 449, c. 623.]

In addition, the explanatory notes to the Bill state:

“the Government’s intention is that those receiving the support component should be able to volunteer to take part in these if they wish to do so.”

That is excellent but it is stated as being the Government’s intention only; that people in the support group should have a statutory right to involve themselves in the work-related component is not part of the primary legislation. That is important. We are talking about people with severe disabilities, so it is not just a question of saying, “Here’s the programme, volunteer for it if you wish.” For the programme to be meaningful for them, it is likely to have to be a different type of programme from the ones being set up for people with less severe disabilities. Such a programme is also likely to want to draw on the resources of such specialist organisations as Mencap, which have expertise in dealing with people with more severe disabilities.

If the programme is set up with contractors who are geared up towards the larger group of people who are nearer to the labour market and if that is all the funds will stretch to, there is a risk of the people in the support group being what the hon. Member for Inverness, Nairn, Badenoch and Strathspey described as “parked”. Unintentionally, that could be exacerbated by people in the support group getting a higher rate allowance than people in the work-related component. It might be sensible to consider giving that extra help through other channels. I would be grateful if the Minister would reflect on that.

Tim Boswell (Shadow Minister, Work & Pensions; Daventry, Conservative)

I agree with the argument that my hon. Friend is making. Is he not also concerned that if the nature of the contracting process into the private sector or voluntary providers is such as to have a limited number of very large providers who are, as it were, generalists, some of the specialist services for particular kinds of disability, for example those in mental health, which may be required by members of the support group will simply not be available through the contractors who win the particular contract in that area?

Jeremy Hunt (Shadow Minister (the Disabled), Work & Pensions; South West Surrey, Conservative)

As ever, my hon. Friend’s experience shines through his comments. He is right to say that there is a possible danger in the way that these contracts are awarded. In the most lucrative contracts, particularly if they are operated on a payment-by-results basis—whereby contractors get paid when they manage to place someone in full-time employment—the most attractive client group from a financial point of view will obviously be those nearest the labour market: that is, those with the less severe disabilities. It is important that the structure of the contracts is set up so that it does not inadvertently discriminate against people with more severe disabilities.

Kali Mountford (PPS (Rt Hon Des Browne, Secretary of State), Ministry of Defence; Colne Valley, Labour)

I am worried about the hon. Gentleman’s suggestions on two grounds. The first is that, as he has just described, people who are usually described as “difficult to reach” are difficult to reach. One difficulty is people not being, and not willing to be, work ready. That must be dealt with. A group of people who are not only not work ready but who perceive themselves as never being work ready because of the nature of their illness, and who are in addition fearful that we might interfere in the living arrangements that they have established for themselves, would be even more difficult to reach.

One of the things that perhaps makes a person more capable of moving from one group to the other is their willingness to change their circumstances. I understand what the hon. Gentleman is saying about being parked—

Jimmy Hood (Lanark & Hamilton East, Labour)

Order. I am afraid that the hon. Lady will have to make her comments a little shorter than that.

Jeremy Hunt (Shadow Minister (the Disabled), Work & Pensions; South West Surrey, Conservative)

I am grateful, Mr. Hood. The hon. Member for Colne Valley (Kali Mountford) makes an important point; we must examine the motivations of individuals. One of my concerns is that, by setting the support level slightly higher than the work-related level, we inadvertently create a major disincentive for anyone in the support group ever to want to transfer out of that group. Opposition Members fully support giving more generous support to the people with the most severe disabilities, but we ask whether this is the right mechanism by which to do so.

I put it to the Government that if we go for the big goal—making the world of work more accessible even to the people with the most severe disabilities—and we have to have two groups of people, we need a seamless transition between the two. The difference between the two might be the conditionality—the requirement to participate in the programme, which is decided at the outset—but at every stage we want to encourage people in the support group to be willing to transfer themselves into the work-related category so they do not feel scared that they will lose £5 a week or whatever from their benefits if they do so.

All I am asking the Government to do is to be as bold in their ambitions for the support group as they are for the work-related group, because there is a real opportunity to transform the lives of people with severe disabilities. I accept that the Government have excellent intentions in respect of this Bill, but there might be an unintended consequence whereby that transformation does not happen.

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

Again, we have heard a very interesting set of contributions from a variety of hon. Members and again, with the Committee’s indulgence, I will save my excellent speech for another time and simply respond to many of the points that were raised.

The hon. Member for Inverness, Nairn, Badenoch and Strathspey asked why we were taking this approach. I alluded to this earlier. Again, it is a generalisation but the people in the support group would be more likely to be out of the labour market for a longer period, and the statistics show that the longer people are on incapacity benefit, the less likely they are, in general, to get into work.

Adam Afriyie (Windsor, Conservative)

The Minister points out that people who may move into the support group have historically been supported for longer by the state, but is that not partly because of the lack of treatments available for people with mental health challenges? About 1 million people on incapacity benefit have depression or anxiety disorder and it is clear, with regard to the treatment recommended by the National Institute for Health and Clinical Excellence, that cognitive-based therapies would possibly lift half of them out of that predicament, so I am just a bit concerned about the assumption that the Minister is making that that situation cannot change.

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

That is not the impression that I gave or sought to give, as I think the hon. Gentleman, when he reflects on the record of the debate in Hansard, will realise. It is just an assessment of the reality of the unfortunate nature of incapacity benefit to say that it rewards people financially for being on the benefit longer. The hon. Gentleman scowls, but it does. It should not, but it does. That is an inherent weakness in the system.

Adam Afriyie (Windsor, Conservative)

I scowled because the issue is not that the people suffering with mental health difficulties feel incentivised to stay on benefit; it is that they find themselves incapable of running their lives in the way that they would choose.

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

The weakness in the current system is that it pays people for being on the benefit longer, there is no parallel level of support and, until now, there has not been pathways. We can have a conversation about whether pathways is effective, as we would all like it to be, and we will of course have that conversation as we go through Committee, but I say gently to the hon. Member for Windsor (Adam Afriyie) that pathways is the first initiative of its type that has achieved the scale of success that it has for this group of customers, who have had so many different and complicated experiences in their lives. It is the first such initiative to deliver in that way that any Government have managed to introduce.

The hon. Gentleman has not been in the House long enough to make this mistake, but it is my understanding that, when these issues arose in relation to the Finance Bill and elsewhere, not everyone in his party supported the additional investment that pathways has brought about, the other labour market interventions that have brought about the effectiveness of pathways, the new deal for the disabled, which goes alongside that, or, indeed, all the new deal labour market interventions. They are part of an overall strategy that can, if everything is put together co-operatively across government, deliver the success that all of us in Committee today seek, in principle, to achieve.

All I say again gently to the hon. Gentleman is that although it is fair to say that not everything has been achieved, and we all acknowledge that, there has been a remarkable increase in investment and real determination in policy structure, sometimes in the face of fierce opposition from other parties. That is simply a statement of recent parliamentary history.

David Ruffley (Shadow Minister, Work & Pensions; Bury St Edmunds, Conservative)

I wish to put it on record that, as evidence of our support on Second Reading, the principle of pathways and its objectives and its results have so far received the unambiguous support of my party. There are, of course, issues the Minister has alluded to about how pathways can be made more effective but it is, as he would be the first to admit, a work in progress. We agree the principle, but how can we all make it better in the future?

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

I accept and welcome what the hon. Gentleman says. However, pathways is, of course, part of the support available to people from different backgrounds and experiences, and those with different disabilities are partly supported through the new deal for disabled people. The Conservative Front-Bench team only recently described the new deal as an expensive flop.

David Ruffley (Shadow Minister, Work & Pensions; Bury St Edmunds, Conservative)

I do not know the shadow spokesman to whom the Minister is referring. However, in March, as Hansard shows, I made an intervention in which I said that the Conservative policy at the last general election of scrapping all new deals and putting nothing in their place was no longer our policy and was not something the Department for Work and Pensions shadow team supports. There are active market interventions that we support, but we just might not call them new deal.

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

Thank you, Mr. Hood, for allowing us this latitude and this gentle boxing—and it is gentle compared to what has happened before. Before I move on to something more specific, I can tell the hon. Gentleman that the Front-Bench spokesperson I have in mind is someone he knows: it is his boss, the shadow Secretary of State for Work and Pensions, the hon. Member for Runnymede and Weybridge (Mr. Hammond).

Danny Alexander (Shadow Minister and Disability Spokesperson, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

I hate to break up this debate about what the policy of the Conservative party is today, entertaining a diversion though it is, but before that diversion was entered into, the Minister said something I agreed with very much. He said that on the one hand, one of problems of the current structure of incapacity benefit is that it offers people incentives to be on benefit for a longer period. On the other hand, he said that the justification for having a higher rate for the support group was that those people are likely to be on the benefit for a longer period. Does the Minister think that is entirely consistent?

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

I wonder whether I might be encouraged to make a little progress because I am still trying to answer the first of the many questions that were raised. My hon. Friend the Whip will I am sure scowl shortly because we are not making as much progress as he anticipated.

The rationale is simply that the longer someone is out of the labour market, the greater the preponderance of poverty. We know that that is the nature of people’s experiences in this country. It is our assessment that, in general, those people who go through the PCA and are assessed as having the greatest limited capability for work should be in the support group, and we should not  demand any conditionality of them or force them to do something that in many circumstances may indeed make their condition worse. We should not force them even to go to interviews or into work-related activity, but we should allow them time, if appropriate. Simply, we should not be adding to the challenges that they face. However, neither should we write them off, and that is why we have said that we will enable those in the support group to volunteer.

I reassure the hon. Member for South-West Surrey and others who raised this matter: if a customer in the support group was to volunteer but say, “I acknowledge what you’ve said about my condition, but I don’t want to be written off and treated the way people used to be treated when they were on incapacity benefit. I want to volunteer for some of the support that’s available”, we would say, “Good.” Not only that, but we would say that the person could keep the higher rate of benefit so that there were no perverse incentives to stay in the support group: they can keep the higher rate of benefit without going through the conditionality. It is important that, when someone is objectively assessed and goes into a support group, no additional hurdles to leaving that group voluntarily should be placed in their way. Those two concessions are very important.

Jeremy Hunt (Shadow Minister (the Disabled), Work & Pensions; South West Surrey, Conservative)

I am reassured by the Minister’s comments, but why, if that is so, does the primary legislation not mention that people in the support group will have the right to volunteer for the pathways programme?

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

We will, of course, make that clear in the regulations. However, perhaps I can make some progress, with the Committee’s indulgence—and in response to points that have been made—because there are various outstanding issues that I have not had a chance to address yet.

The hon. Member for Windsor asked about the safeguards that would be put in place. Some of the safeguards are identified on page 6 of the draft regulations and supporting materials, and we can discuss those as the Committee progresses. The hon. Gentleman also asked quite reasonably why the assessment cannot be a snapshot but has to be about understanding someone’s condition through a period of time. He is entirely right. We will ensure that that is how we will give effect to the reformed PCA. We will continue to provide work-focused interviews and so on, which are not based on one moment of one day of one week. The new PCA will try to capture, much better than the current PCA does, the range of people’s experiences, and it should reflect how every day—and for many people, every hour—is often different. Our approach has to be reflected in the way we treat people in those circumstances.

The hon. Member for Daventry was uncharacteristically negative—although he is entirely entitled to be so—in suggesting that we will structure a system that will allow people to be parked in the support group. I know that that is what used to happen. People who were unemployed used to be parked on incapacity benefit. That is why incapacity benefit numbers trebled and why in two years in the 1980s 1 million people went on to incapacity benefit.  For a Government, and a government system, incapacity benefit was seen as an alternative to the unemployment claimant count. There is a general acceptance that that is so. We can, if hon. Members wish, have a conversation about whether or not that happened, but in structuring this new benefit we do not want to recreate the sort of system that led to what happened throughout large parts of the 1980s. We will ensure, through the way we structure contracts and advice and through the way the PCA operates, that people cannot be pushed into and get trapped in the support group, as the hon. Member for Daventry rather uncharitably described it.

Other points were raised about contracts and how we ensure that private and voluntary sector providers are not incentivised simply on outcomes. Not all pathways will be provided through the private and voluntary sectors; at least one third will be provided through Jobcentre Plus, as in the first roll-out. I have had conversations with those who have expressed interest in providing this private and voluntary sector support to ESA customers in future, and officials continue to discuss the matter with them. We will structure the contracts so that people and organisations are not just able to support those people who are easiest to support. We will ensure that that does not happen, and it is appropriate that we do so.

In passing, there was an exchange in the Chamber about how we intend to structure the contracts and the outcomes. I think we have settled on about 70 per cent. outcomes-based funding in terms of reward for the private and voluntary sector. Those on the Conservative Front Bench were arguing for 100 per cent. outcomes-based funding.

Mr. Ruffleyrose—

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

Of course, because I made that comment I shall allow the hon. Gentleman to respond.

On balance, we thought that 100 per cent. outcomes-based funding would not enable smaller organisations, charities and the voluntary sector to get the necessary investment to set up the infrastructure to provide these contracts. Frankly, 100 per cent. outcomes-based funding would provide unreasonable advantage to those established, large private voluntary sector organisations, although they have an important part to play. It would be a mistake and would prevent smaller organisations from being able to provide the niche support that we all wish to be provided.

David Ruffley (Shadow Minister, Work & Pensions; Bury St Edmunds, Conservative)

We will make a fuller announcement on that point, but—I hope that hon. Members will take at face value my good faith on this—our proposition was never for a 100 per cent. payment-by-results system. I do not have time in an intervention to set this matter right, but we will discuss this later in our debates. The 30 per cent. guaranteed fee, which I believe the Minister has spoken to contractors about, will clearly be necessary for a lot of niche and smaller providers.

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

I welcome another new policy—[Interruption.]

Jimmy Hood (Lanark & Hamilton East, Labour)

Order. I do not want to have to start telling Members off for being disrespectful to those who are addressing the Committee.

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

Mr. Hood, this Committee has 16 sittings; I wonder whether we will have 16 separate policies from the Conservative Front-Bench team. Like my hon. Friend the Member for Glasgow, North-West, I wonder how many will last the entire 16 sittings.

All I can say to the hon. Gentleman—again gently—is that it was his boss, the shadow Secretary of State for Work and Pensions, who pushed me on 100 per cent. outcomes on the Floor of the House not long ago. That was certainly the impression that was then created. I will look again at Hansard, and we will, I am sure, return to this point in future sittings.

David Ruffley (Shadow Minister, Work & Pensions; Bury St Edmunds, Conservative)

I think that Hansard will demonstrate that the shadow Secretary of State was talking about a 100 per cent. system tied to existing claimants, and that he was talking about a very specific part of the target audience. It will be my pleasure to discuss the Hansard report.

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

I am not sure that Mr. Hood will allow that.

Jimmy Hood (Lanark & Hamilton East, Labour)

Order. I advise Front-Bench Members that I do not want us to go over history, previous speeches and what is in Hansard. I ask the Minister to return to the Bill and address the amendment that we are debating so that we can let the business proceed.

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

Of course, Mr. Hood. I am drawing my remarks to a conclusion, but I want first to respond to a couple of the points raised by the hon. Member for Inverness, Nairn, Badenoch and Strathspey. I know that he is concerned about pathways and funding for pathways, and I seek to reassure him. We have made it clear that the future contracting model for the roll-out of private and voluntary sector pathways will, to a large extent, be based on the current contracting model. It will not be pathways on the cheap, because that investment in pathways and the national roll-out of pathways by 2008 is absolutely essential if the measures we are considering are to be made a reality on the ground. It is a fundamental principle of the Bill that it will be underpinned by the national roll-out of pathways properly funded in a way that can provide support to people with learning disabilities, which the current system does not, and with mental or physical health conditions. I hope that that reassures the hon. Gentleman and that I can tempt him to withdraw his amendment.

Danny Alexander (Shadow Minister and Disability Spokesperson, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

I am grateful to the Minister for that response. He explained his justification for having a higher rate for the support group. I am not convinced that that necessarily justifies paying the higher rate of benefit through the ESA system, but I accept the justification for paying a higher rate of benefit to people in the category that he described. I am not sure that the disability living allowance system might not be a more effective way of doing that, but I do not want to press that point.

The Minister did not address my points about how the division between the support group and the work-related activity group would work through the PCA. I know that we do not have the regulations before us, but I would be grateful if he would say a bit more about how that distinction will work in practice when someone goes into the assessment. How will it be decided whether someone is in one group or another? That is crucial. Subject to receiving that assurance, I will, of course, be happy to follow the Minister down the tempting line he offered and withdraw the amendment.

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

Committee members have the details of the revised PCA, which sets out how we would deal with the important issues raised by the hon. Gentleman. The new PCA discusses in great detail mental health descriptors and how it will take account of learning disabilities; the current PCA does not take account of them.

I hope that I shall reassure the hon. Gentleman by telling him that we intend to pilot the reformed PCA alongside the existing one. We are starting that work now, over a two-week period. Current customers will be assessed against both the existing and new draft PCAs to ensure that we have the details right, that we have not inadvertently created unintended consequences or perverse incentives and that there is not an entirely divergent outcome; the existing customer will be sitting in front of an Atos Origin doctor. Our intention is to ensure that the revised PCA delivers the outcomes that we want in respect of learning disability and mental illness. At a later point, we shall consult further on how the PCA will operate.

Danny Alexander (Shadow Minister and Disability Spokesperson, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

I beg to ask leave to withdraw the amendment.

John Robertson (PPS (Dr Kim Howells, Minister of State), Foreign & Commonwealth Office; Glasgow North West, Labour)

I beg to move amendment No. 174, in clause 2, page 2, line 27, leave out paragraph (a).

Jimmy Hood (Lanark & Hamilton East, Labour)

With this it will be convenient to discuss the following amendments: No. 222, in clause 2, page 2, line 29, leave out paragraph (c).

No. 3, in clause 2, page 2, line 29, after ‘conditions’, insert

‘relating to health, disability or capability for work-related activities’.

No. 175, in clause 2, page 2, line 31, leave out paragraph (a).

No. 4, in clause 2, page 2, line 34, leave out paragraph (c).

No. 176, in clause 2, page 2, line 36, leave out paragraphs (a) and (b).

No. 202, in clause 2, page 2, line 39, after ‘backdated’, insert

‘to the date of claim, or to another such date as may be determined by the Secretary of State’.

No. 50, in clause 2, page 2, line 41, at end insert—

‘(d) prescribe circumstances in which paragraph (b) of subsection (2) is not to apply.’.

No. 178, in clause 4, page 4, line 22, leave out paragraph (a).

No. 223, in clause 4, page 4, line 24, leave out paragraph (c).

No. 6, in clause 4, page 4, line 24, after ‘conditions’, insert

‘relating to, health, disability or capability for work-related activities’.

No. 179, in clause 4, page 4, line 26, leave out paragraph (a).

No. 7, in clause 4, page 4, line 29, leave out paragraph (c).

John Robertson (PPS (Dr Kim Howells, Minister of State), Foreign & Commonwealth Office; Glasgow North West, Labour)

I am still trying not to be weak, Mr. Hood, although it was difficult during the last contributions.

Amendments Nos. 174 to 179 are to do with the assessment phase. They are probing amendments; I intend to tease from the Government more information about how we can help those who most need it. The amendments would ensure that young people were not discriminated against during the assessment phase and that sick and disabled persons received the appropriate support from the beginning of their claim, rather than from the end of the fixed assessment phase.

The issue of the 13-week assessment period and the problems that would ensue during it was raised by a number of hon. Members on Second Reading. In their Green Paper and consultation report, the Government accepted that they did not intend to penalise young people by aligning the basic rates of main-phase ESA with jobseeker’s allowance rates. That was mentioned previously, and it is reflected in the Bill. However, young people appear to be penalised during the assessment phase, as the holding benefit is paid in line with JSA rates. That discrimination will leave some sick and disabled people with inadequate incomes for three months, simply because of their age.

The amendments would also remove the requirement for the assessment phase to have ended before the work-related activity or support component is paid. The Bill proposes that those who can be immediately identified as severely disabled and eligible for the support group will receive only JSA rates for the first three months of their claim—substantially below what might be their real entitlement.

The amendments would enable all claimants who subsequently pass the personal capability assessment to go on to the main phase of ESA and receive the appropriate financial support from the start of the claim, rather than from the end of the 13-week period. The Bill proposes that such people will be paid only JSA rates for those 13 weeks; they are well below the financial support required by sick and disabled pensioners and could increase poverty and social exclusion. As I said earlier, many colleagues raised the 13-week assessment period on Second Reading. It is of concern not just to them but to many of the groups that have aided and abetted us. It is time that I mentioned some of them. The Child Poverty Action Group, Disability Alliance, Citizens Advice, Citizens Advice in Scotland, CPAG in Scotland, Barnardo’s, Poverty Alliance and Margaret Blackwood Housing  Association all associate themselves with the amendments. A broad range of concerned bodies have made these suggestions.

Is it not unfair that people who will be rewarded should have to wait 13 weeks for an assessment as to whether they are entitled to money that they should get? They may experience payment problems or have to live in poverty for that length of time only because of their age and disability. What kind of help or assistance will be given to those who find themselves in debt because of their age or the assessment? I hope that my hon. Friend will answer those points.

Jeremy Hunt (Shadow Minister (the Disabled), Work & Pensions; South West Surrey, Conservative)

Briefly, I believe that the hon. Member for Glasgow, North-West makes an important point. Has the Minister done any analysis of whether it would be expensive to set up an assessment process that took only four weeks rather than 13? Given the number of claimants, getting people through the system more quickly might not involve any extra cost, and then we could avoid some of the problems that the hon. Gentleman described. I should be grateful if the Minister would comment on that.

Danny Alexander (Shadow Minister and Disability Spokesperson, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

I would like to express my support for the amendments that the hon. Member for Glasgow, North-West tabled and the points that he made. They are important, particularly in respect of the younger group of claimants.

The group also contains amendments that my hon. Friend the Member for Yeovil (Mr. Laws) and I tabled to get further clarification on some related issues. I shall take a couple of minutes to describe them and to ask the Minister for further reassurance or clarification.

On amendments Nos. 3 and 6, I should be grateful if the Minister would explain a bit more about the scope of the powers given in clauses 2(2)(c) and 4(4)(c) to prescribe conditions for qualifying for income and contribution-based employment and support allowance. What qualifying criteria will and will not be set beyond those

“relating to health, disability or capability for work-related activities”,

if any? For example, will replacement of the PCA take into account labour market disadvantages? Is the power that is set out in the clauses intended to be used in that way?

On amendments Nos. 4 and 7, I should be grateful if the Minister would say a little more about the use of delegated legislation. Will it be limited to the regulations made under clauses 10 to 15, which deal with conditionality? If not, what else is intended by the powers?

With amendment No. 202, we are trying to provide an opportunity for backdating ESA payments to the start of the claim. This follows on from the point made by the hon. Member for Glasgow, North-West that the Bill allows backdating to a maximum of the 13-week period, but if someone’s case has taken longer than 13 weeks to process, for whatever reason, there is no provision to allow backdating to the date of the claim. Amendment No. 202 would provide powers to allow the Secretary of State to specify a date earlier than the 13-week period in cases where that is necessary. That  backdating power does not provide any additional incentive for people to apply for the benefit over jobseeker’s allowance, because the backdating takes place only once a decision about a person’s eligibility for the benefit has been made. The intention is merely to ensure that someone who has perhaps been subjected to a delay in the assessment period of longer than 13 weeks is not disadvantaged unduly by how the Bill is currently phrased.

In amendment No. 202 we deal specifically with the contributory allowance, but similar points could be made in relation to the income-based allowance too. I hope that the Minister can set my mind at rest on those points, particularly in relation to amendment No. 202, which the Government might wish to bring forward themselves, to ensure that the point is taken into account.

David Ruffley (Shadow Minister, Work & Pensions; Bury St Edmunds, Conservative)

I support amendments Nos. 222, 50 and 223, which stand in my name and those of my hon. Friends, and amendments Nos. 4 and 7, which stand in our names and those of the Liberal Democrats.

Amendment No. 222 is designed to simplify and clarify the conditions to entitlement for the support component of contributory ESA and would delete subsection (2)(c). The conditions of entitlement for the support component of contributory ESA are set out in clause 2. They are that a claimant has been assessed and found to have

“limited capability for work-related activity”,

which would seem to be sufficient. From the claimant’s point of view those conditions are pretty transparent and fairly easily understood, one hopes.

However, subsection (2)(c), which amendment No. 222 would delete, refers to additional conditions, but it is difficult to envisage what additional conditions the Secretary of State might wish to prescribe in relation to the support component and claimants of it. It is not possible to assess the desirability of any such conditions referred to in subsection (2)(c) without a better idea from the Minister of exactly what those conditions might be. What do Ministers potentially intend? Amendment No. 222 therefore invites the Minister to clarify what additional conditions may be prescribed. Because of its importance, we would press amendment No. 222 to a vote if such clarification was not forthcoming from the Minister.

In the interests of dispatch, I can say that corresponding deletions on the same logic that I have outlined would be made by amendment No. 223 in relation to income-related ESA for those on the support component, by amendment No. 4 in relation to those claimants of the work-related components of contributory ESA, and by amendment No. 7 in relation to work-related component claimants who have income-related ESA. The point in those four cases, which are all analogous, is to seek clarification and elucidation from the Minister.

Amendment No. 50 stands in my name and that of my hon. Friend the Member for Daventry, and nobody else. It would insert a new subsection (4)(d), to the effect that regulations may

“prescribe circumstances in which paragraph (b) of subsection (2) is not to apply”.

The purport of amendment No. 50 is so great that I am sure the Minister and his colleagues have thought about it. It is to allow ESA claimants to move from the work-related activity component to the support component after a period during which they have not progressed toward work through work-related activity. Let us say that for all the best efforts of those who have been lending support, the condition management programme—or the training or voluntary work, or whatever the work-related activity might be—has not resulted over a long period in a placement in full or part-time work, as the claimant and all of us would wish, and the person realises that they are—

Alison Seabeck (PPS (Rt Hon Geoff Hoon, Minister of State), Foreign & Commonwealth Office; Plymouth, Devonport, Labour)

I have a question. You refer to a long period of time. Do you have a particular fixed period in mind?

Jimmy Hood (Lanark & Hamilton East, Labour)

Order. The hon. Lady should not be asking me questions. She should be asking the hon. Gentleman questions.

David Ruffley (Shadow Minister, Work & Pensions; Bury St Edmunds, Conservative)

I hope that the hon. Lady will not think that I am avoiding the question by saying that I do not have a number in mind, but it would be a long period, as judged by the personal adviser and by the claimant themselves, in which work-related activity was not likely to get that person into work. It could be a year, 18 months or two years in which the condition was not susceptible to work-related activity. In that hypothetical case, the higher rate of the support component would be judged by the personal adviser and the claimant to be a more appropriate part of ESA.

I am advised by the Child Poverty Action Group, the Royal National Institute of the Blind, Action for Blind People and other groups that departmental officials have briefed them this year that claimants who have not progressed toward work after undertaking work-focused activity for some time—I shall not put a number on it—could be moved into what is described as a self-managed phase of ESA. I should be grateful for the Minister’s elucidation of what that might mean in practice. We tabled the amendment because we share the fear that those with disabilities might be sidelined after time, with serious help and support re-prioritised to newer claimants who might be nearer the labour market.

Were that to occur, it would mean that claimants would be stuck, for want of a better word, at the lower rate of benefit in the work-related component, even if it were understood that that would not work for them. Even worse, they might be sidelined from getting the higher rate in the support group, where they should be and where they and the personal adviser felt that they should be.

Tim Boswell (Shadow Minister, Work & Pensions; Daventry, Conservative)

Is it clear to my hon. Friend—it is not completely clear to me—whether there is a free-standing right to apply for a fresh capability assessment? Even if that were established, would it not be a rather long-winded way of making the entirely reasonable changes he is advancing, as against an agreed and consensual change of status?

David Ruffley (Shadow Minister, Work & Pensions; Bury St Edmunds, Conservative)

My hon. Friend anticipates me. The Minister could well have a good answer. Logically, based on the clauses that we will come to in the next few days, there could be a reassessment on the request of a personal adviser and a claimant. It is not clear to me that rights in the Bill will meet the case of the hypothetical recipient of the work-related activity component who believes that it will not work for them, that a route back into work will not happen through work-related activity and that they need higher support. But how will they get it? Will they not be between two worlds? How do they access the support component without getting a rapid assessment and, I suggest, a right to self-assessment, when all agree that the support component is likely to be the more appropriate one for them?

I do not know whether the answer is the prescription of circumstances, which is the meat of the amendment and is for Ministers to outline, or whether provision is made elsewhere in the Bill for a rapid reassessment for someone in that situation. I ask in a spirit of good faith and general inquiry, even though the problem might not apply to many people. It is more than a theoretical possibility and it would be useful to hear the Minister’s thoughts on it.

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

A number of points have been raised, and I shall again seek to address as many of them as possible. The amendments cover various matters relating to clause 2 and also touch upon the provisions in clause 4 on the structure of the contribution allowance.

Some of the amendments are on the conditions of entitlement to work-related activity and the support components of the allowance. They would either remove our ability to prescribe further conditions of entitlement, or limit the conditions to those relating to the health or disability of a customer. We currently have no specific intention to prescribe further conditions of entitlement, but the power to do so in future is essential to enable us to respond to new developments and to make changes in light of the operational experience of ESA and the success and lessons of the national roll-out of pathways. That flexibility will be crucial as we learn from the experiences of pathways, build on what has worked in the ESA system and identify what has not worked as well as we had expected. We need to be able to take account of societal changes and changes in the make-up of the ESA customer base. Failure to do so could result in entitlement to the support component for customers for whom it was not designed. Conversely, the benefit could be denied those to whom we wish to make it available.

David Ruffley (Shadow Minister, Work & Pensions; Bury St Edmunds, Conservative)

I hear what the Minister is saying, but will he give more examples of circumstances that he believes might require flexibility on the part of the Secretary of State? I understand his point on the need for flexibility, but in relation to what is it needed?

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

I seek to make no party point, but I imagine that if we had had this conversation only five or 10 years ago and were designing regulations and benefit entitlements, we would not have foreseen the growth that there has been in fluctuating mental health conditions, which have become common among  incapacity benefit claimants. Some 40 per cent. of claimants are now coming into the incapacity benefit scheme as a consequence of such conditions. There have been societal changes such as the introduction of the Disability Discrimination Act 1995, which places employment in a different legal context. There has been a change in the governmental and cross-party perception of the role that those with learning disabilities can have in the labour market. We would not have been able to predict the extent of such changes 10, 15 or 20 years ago. We therefore need flexibility in the Bill to enable us to take account of any further changes in family structure, trends in health and poverty and all sorts of other trends such as those in the past 15 years that we could not have anticipated. I offer that as a reasonable point without apportioning party political blame or responsibility for changes. I hope that that addresses the hon. Gentleman’s point.

The second set of amendments in the group is on the assessment phase. As I said on clause 1, that phase is key to the structure of the new allowance. It is important to assess all customers, not just those in the younger age bracket. We want to avoid making assumptions about any individual until they have been through the personal capability assessment. I know that my hon. Friend the Member for Glasgow, North-West offers us a probing amendment to tease out the Government’s thinking, but someone should be entitled to the ESA not at the point of application but at the end of the assessment phase. We have set that at 13 weeks—three months—based on our experience of what we think has worked in the pathways to work programme and the way in which we have been able to support people.

We think that that assessment phase is important and we also believe that it should be a standard length. We have returned to the second basic principle of ESA, which is that there should be a national set of rules and regulations. It would be unfair for some people to move to the higher rate of benefit earlier than others because of a geographic or postcode lottery based on how quickly the assessment can take place.

I wonder whether by offering that assurance to my hon. Friend I can tempt him to withdraw his amendment. If the assessment phase takes longer than 13 weeks, not because of the actions of the customer but because of problems at DWP, Atos Origin, or the health service, or because of any other circumstance outside the reasonable control of the claimant or customer, we will backdate to that point. So, if the assessment phase were to last 16 or 17 weeks because of pressures in the health service or a lack of availability of other advice, we would certainly backdate to the 13-week limit so that people would not be punished through a postcode lottery. It is important to put that on the record.

In respect of amendment No. 50, our general approach is that people should be in the support group based on an objective assessment through a PCA. We have had the conversation about labour market disadvantage. The PCA should be a medical assessment of their functional capability and what they can still contribute to the labour market. It would not be right to put an arbitrary time limit on that commitment and to say that, after a certain point, we will allow, in some instances, the reinvention of incapacity benefit. We are determined  to ensure that people should not be written off wholesale. We should not say, “You should not be written off—unless we have tried really hard for six, nine, 12 or 18 months. Gosh, we have not been able to help you. You have been passported, now enter the support group”. That is not the right way to go about things.

There is an alternative, however, which is to allow additional PCAs. If the condition changes, the revised PCA is a much better way of dealing with the matter. It will primarily be based on medical advice that the circumstances have changed. At that point, someone in the work-related activity group could be assessed in their revised PCA so that they go into the support group, and, to be truthful, that could happen the other way round.

Tim Boswell (Shadow Minister, Work & Pensions; Daventry, Conservative)

Will the Minister hazard a guess as to the proportion of such cases that is likely to come along, and the amount of resources that will be required in order to conduct the repeat PCAs?

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

Gentle as the hon. Gentleman’s encouragement is, I shall not be tempted to hazard a guess at the specific number or the cost. It should be based not on an arbitrary Government target, but on the objective medical assessment of each individual. For us to set an arbitrary target nationally and to say that Atos Origin must ensure that 4 per cent., 7 per cent., 11 per cent., 1 per cent. or any percentage of folk should go into the support group, be taken out of it or be put into it from the work-related activity group after a second PCA is a wrong-headed way of looking at it. It is about an individual objective assessment of someone’s capability, and that is the way in which people would change between one and the other.

David Ruffley (Shadow Minister, Work & Pensions; Bury St Edmunds, Conservative)

On amendment No. 50, although not on amendment No. 222 and the related amendments, the Minister is satisfying me. Will he nail this point down for me? In the example I gave of someone who is in the work-related activity component but wishes to try to move onto the support component, what would be the mechanics of getting a new assessment? Would there be a right to it and how quickly could it be done? In other words, how could a new PCA be done and what rights would the individual have?

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

One of the weaknesses in the incapacity benefits system is that the gap is far too long. We say that it is about three years, but in truth there is great variation across it. In saying that I mean no disrespect to the folk at Atos Origin, who are working very hard and who have improved their operations in recent years.

I do not wish to disappoint the hon. Gentleman, but my response is similar to the one that I gave his hon. Friend the Member for Daventry: we do not wish to set an arbitrary target. If, based on a medical assessment, someone’s condition is considered to have improved, or deteriorated, it is then that it is appropriate to have a new PCA, rather than after nine months, or 14 months and three days, or anything of that nature. It should not be time limited—it should vary based on the individual.

The hon. Gentleman warmly welcomed the idea of focusing on people as individuals, and I know that he still warmly supports that.

Wayne David (Caerphilly, Labour)

Is the Minister in a position to give a categorical commitment that anyone who has been diagnosed with a terminal illness will automatically be included?

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

I think that we are about to have a conversation about that in relation to certain amendments that have been tabled by my hon. Friend the Member for Glasgow, North-West, and I shall happily respond during that debate.

I hope that I have reassured the hon. Member for Bury St. Edmunds (Mr. Ruffley) on clause 50. We recognise that there are some customers who may not demonstrate the level of functional limitation that would place them in the support group, but for whom the support group is still the most appropriate group. That is why we have taken the powers in paragraph 9(a) of schedule 2, so that in prescribed circumstances we can treat people as having limited capability for work-related activity. That brings us to the point that was raised by my hon. Friend the Member for Caerphilly (Mr. David), which we shall discuss with the next set of amendments.

The power to prescribe such circumstances is similar to the power that we have taken in other legislation. For example, the Child Support, Pensions and Social Security Act 2000 incorporated section 44A into the Social Security Contributions and Benefits Act 1992. It was used in 2001 and it came into force in 2002. It is important to have the power to implement flexibly, in the light of circumstances—whether concerning the workplace or societal or legislative attitudes—so as not to have to revisit primary legislation within a very short time in the light of changes and trends in society. Given those comments and that rationale, I encourage Opposition Members not to press their amendments.

David Ruffley (Shadow Minister, Work & Pensions; Bury St Edmunds, Conservative)

I take on board the Minister’s remarks about amendment No. 50, and I am happy not to press it. Nevertheless, I know that there is concern among Opposition Members about having such open-ended powers. Societal changes happen, but the prospect of Ministers having powers in their hands without having to come back to the House of Commons to justify what is a sensitive area of public policy means that I shall seek to press amendment No. 222 and the related amendments.

Jimmy Hood (Lanark & Hamilton East, Labour)

Mr. Murphy, I believe that you were about to ask Mr. Robertson if he would withdraw his amendment.

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

I thought that I had already done so, Mr. Hood. I invite my hon. Friend to do that on the basis of the reassurance that I offered about backdating payments if the assessment period is exceeded through no fault of the customer.

John Robertson (PPS (Dr Kim Howells, Minister of State), Foreign & Commonwealth Office; Glasgow North West, Labour)

I thank my hon. Friend for his words on flexibility and backdating. I shall read what he has said with care and deliberate on it between now and Report. For the present, I beg to ask leave to withdraw the amendment.

John Robertson (PPS (Dr Kim Howells, Minister of State), Foreign & Commonwealth Office; Glasgow North West, Labour)

I beg to move amendment No. 142, in clause 2, page 2, line 43, at end insert—

‘( ) he is undergoing or recovering from treatment for a serious or life-threatening illness or is terminally ill as prescribed through regulations, or’.

Jimmy Hood (Lanark & Hamilton East, Labour)

With this it will be convenient to discuss amendment No. 140, in clause 2, page 3, line 2, at end insert—

‘(6) For the purposes of this Part, the assessment phase for a person who is terminally ill as prescribed through regulations will be no longer than one month.’.

John Robertson (PPS (Dr Kim Howells, Minister of State), Foreign & Commonwealth Office; Glasgow North West, Labour)

These are emotive amendments and the issues are always difficult to deal with, but they are extremely important. The amendments are possibly more important than any others I have spoken to today. They are in my name, that of my hon. Friend the Member for Dumfries and Galloway (Mr. Brown) and others and their aim is to include in the support group patients undergoing cancer treatment and those with terminal illnesses. We want those undergoing active treatment to be included in the support group for a minimum of 12 months.

At this point, I want to thank Macmillan Cancer Support and many others who have assisted, including the Disability Benefits Consortium. There are too many names to read out, but I particularly want to thank Macmillan Cancer Support, not simply on a personal level for the help that it has given many members of my family who unfortunately had cancer but for its help in drawing up these amendments.

I welcome the inclusion of terminally-ill people in the support group and the commitment to achieving that through paper-based assessment rather than requiring a face-to-face medical assessment. Not all patients undergoing active debilitating cancer treatments are included in the support group. I also welcome the inclusion of the majority of people  undergoing chemotherapy treatment in the support group. However, I am concerned that the regulations as drafted do not cover all patients undergoing active seriously debilitating cancer treatment. In particular, I feel that it would be of value to ask the Minister whether the Government intend to treat patients undergoing oral chemotherapy as having limited capability for work as they are not included in the draft regulations on certain persons to be treated as having limited capability for work-related activity.

Will patients undergoing radiotherapy be treated as having limited capability for work-related activity? Will patients undergoing or recovering from major surgery for a serious or life-threatening illness, such as cancer, be treated as having limited capability for work-related activity? It is not clear for how long people undergoing active treatment would be included in the support group, so it would be valuable to clarify for how long people would be included in the support group before being subject to review. The wording of the draft regulations suggests that they would be included during chemotherapy treatment and it is felt that 12 months to allow for several months of treatment and a period of recovery is a reasonable fixed period after which to review support group status for these claimants. It may be helpful to note that our support for inclusion in the support group for a fixed period of 12 months of someone undergoing or recovering from chemotherapy or radiotherapy or major surgery is based on advice from clinician Professor Jane Maher, chief medical officer at Macmillan Cancer Support and consultant clinical oncologist at Mount Vernon cancer centre at Hillingdon hospital, where she has worked for the past 20 years with Dr. Gareth Tuckwell, medical director of Hospice in the Weald, Kent and a member also of the Macmillan board of trustees.

Further evidence, if it is needed, of the distress caused by the current poor implementation of discretion, comes from Macmillan benefit advisers who have encountered a number of cases in which Jobcentre Plus staff have imposed inappropriate attendance requirements or conducted focus interviews with seriously ill patients. I believe that Macmillan has provided the DWP with some case studies. I shall read out only one so that members understand its train of thought.

In September 2005, a Macmillan benefits adviser in the west of Scotland was advising a terminally ill client attending a hospice and receiving disability living allowance under special rules. The client needed to make a new claim for IB so the adviser telephoned the Glasgow Jobcentre Plus office on their behalf to say that the client was bed bound, but the official refused to waive the interview. Instead, the official sent out a visiting officer. On arrival at the hospice, it quickly became obvious to the officer that the client was seriously ill, and unfortunately the client has since died.

Amendment No. 140 concerns fast-tracking those with a terminal illness. The aim is for all people with a terminal illness, including new claimants, to be fast-tracked to the support group through a swift and simple paper-based assessment. There are concerns about the draft regulations. We welcome the inclusion of terminally ill people in the support group and the commitment to achieving this through paper-based assessment rather than face-to-face medical  assessments, as is currently the case. However, it is not clear whether terminally ill people will be able to access the support group quickly.

Furthermore, it is not clear from the draft regulations and support material whether the DWP intends to fast-track the claims of terminally ill people. We feel that that would be valuable in clarifying certain matters. For instance, how long will a new, terminally ill claimant have to wait before being included in the support group? As stated previously, we feel that one month is a realistic and appropriate length of time. They should not have to spend 13 weeks on a low-rate JSA. Furthermore, how long will an existing claimant, receiving the work-related activity component who then becomes terminally ill, have to wait before being included in the support group?

I know that my hon. Friend the Minister is sympathetic to my amendments and my concerns, and I ask him on this occasion to accept them, or at least to draft his own to satisfy the points that I have raised.

Danny Alexander (Shadow Minister and Disability Spokesperson, Work & Pensions; Inverness, Nairn, Badenoch & Strathspey, Liberal Democrat)

I would like to speak briefly in support of the amendments and the remarks by the hon. Gentleman on the inclusion of terminally ill people in the support group and the introduction of the fast-tracking procedure for them. The fast-tracking procedure exists for terminally ill people—those with six months to live—to be fast-tracked to the higher level of disability living allowance or attendance allowance under the special rules process, so it ought to be fairly straightforward for a similar process to be put in place for the employment and support allowance as well.

Likewise, the idea that someone who is terminally ill might be placed in the work-related activity component and therefore be expected to attend work-focused interviews and, potentially, other activities related to that component, under the possible threat of conditionality, simply does not bear thinking about. In that spirit, I hope that that Minister will accept the amendments.

Wayne David (Caerphilly, Labour)

My apologies for jumping the gun earlier, Mr. Hood. I want to reinforce what has been said. This is a difficult, sensitive issue, but many people understandably feel strongly about it, and I want to make one additional point. At present, where the prognosis is that someone is likely to live for six months, there is a fast-track procedure under the special rules process for the higher level of disability living allowance or attendance allowance. A precedent has therefore been set, and it would be extremely useful and well received if a similar principle were applied to the new allowance. Many people are concerned about the present situation, and it would be helpful to have some clear indications from the Minister. If he is not able to accept the precise wording suggested by my hon. Friend the Member for Glasgow, North-West, I hope that he will be able to suggest alternative wording that would be acceptable.

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

I thank my hon. Friends for the way in which they have made their case. As my hon. Friend the Member for Glasgow, North-West said, this is a highly sensitive issue and he was not deprecating his previous  amendments when he said that these are the most important amendments that he has tabled thus far. Hon. Members on both sides of the House know that there is hardly a family that has not been touched by cancer at some point, so it is quite appropriate that my hon. Friends have raised this important issue.

On the amendments, our general view is that an individual who is found to have limited capability for work-related activity will be placed in a support group, as we have said. People in the support group will not have to participate in work-focused interviews or undertake work-related activity as a condition of receiving ESA. However, we accept that there are circumstances in which it would be sensible to allow entry to the support group, even if the individual did not have limited capability for work-related activity.

Paragraph 9 of schedule 2 allows us to set out in regulations provisions to treat certain groups of people as automatically having limited capability for work-related activity. Our draft regulations include provisions for people who are terminally ill and those who are undergoing certain forms of invasive chemotherapy—intravenous, intraperitoneal or intrathecal—which have very disabling side effects on those who undergo them. It would be entirely unreasonable to require people to take part in work-related activity in what could be the final few months of their life. Equally, it would be wrong to require people undergoing treatment that, in itself, had very disabling side effects to take part in such activity.

Amendment No. 140 would also shorten the assessment phase for people with terminal illness. Macmillan Cancer Support has raised the issue, and I have met its representatives myself. Many members of the Committee, including my hon. Friends, have raised this issue, and I am sure that they have followed it up in correspondence. Indeed, my hon. Friend the Member for Aberdeen, South (Miss Begg) raised it on Second Reading. As I have previously stated, I would like to consider the options proposed in Committee, as well as the observations of others, including my hon. Friend the Member for Aberdeen, South and Macmillan, about how the principle before us could be implemented in practice. Perhaps I can reassure my hon. Friend the Member for Glasgow, North-West that to achieve the effects that he and others seek, there is no need to amend the Bill, because the regulations are sufficiently flexible. For example, we have taken powers in clause 21 which mean that we can prescribe when the assessment phase will end. We can make different provisions for different cases, if we wish, using the standard powers in clause 22.

Although I agree absolutely with my hon. Friend about how folk with terminal illnesses, in particular cancer, are treated through employment and support allowance and personal capability assessment in the Bill, I ask him to withdraw his amendment, not because I disagree with it, or because he has the wording wrong, but for two reasons: first, the power is already in the Bill; and secondly, we are determined to get the specifics right. I am happy to meet and correspond with him and others to ensure that we do exactly that.

Russell Brown (PPS (Rt Hon Douglas Alexander, Secretary of State), Scotland Office; Dumfries & Galloway, Labour)

I hear what the Minister says, and he reassures me somewhat. At the end of the day, I am sure he accepts that  Members in Committee are considering the Bill in detail, and from what he says, he will consider it further. The Bill is fine, but I remind him that when it is implemented and dealing with people who are severely and terminally ill, or recovering from invasive treatment, those good words should become good deeds.

Jim Murphy (Minister of State (Work), Department for Work and Pensions; Renfrewshire East, Labour)

My hon. Friend is absolutely right. We have discussed how cancer affects families, but one reason—although not the main reason—why we want as much assessment as possible on paper is so that there is never a need for people in those circumstances to come face to face with someone to try to persuade them of their condition and prognosis. We all know from family experience that people in those circumstances do not need the Department for Work and Pensions to call them for interviews, or encourage them to take work-focused interviews or work-related activity.

I agree with all that has been said, but I invite my hon. Friend the Member for Glasgow, North-West to withdraw his amendment. We have included the power in the schedules and in clauses 21 and 22 so that we get right the detail of the way in which we frame the regulations and shape implementation throughout the country.

John Robertson (PPS (Dr Kim Howells, Minister of State), Foreign & Commonwealth Office; Glasgow North West, Labour)

I thank my hon. Friend for his words. Under his guidance, I shall withdraw the amendment. I shall take a close look at the regulations and what transpires, and I shall happily take up his offer of a meeting. I know that Macmillan will be happy to discuss the finer points, too. I beg to ask leave to withdraw the amendment.