Clause 14
Welfare Reform Bill

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

Good morning, Mr. Amess. It is a lovely morning and I think that we can make progress today. However, as ever, it is important that we at least question some of the small print.

When I see the word “directions” in a Bill, instinctively I smell a rat—if that is not an inappropriate thing to say—and at least want to question Ministers about why they use that word. In the spirit of making progress, I shall indulge the Committee with a brief anecdote: as a Minister, I remember having to make final decisions on whether schools should shut and saying to my private secretary, “Stalin died in about 1952. Some 40 years have now passed”—at that time—“and here I am, a Conservative Under-Secretary, being required by fiat to strike out with a pen the existence of a school”, albeit after a lot of consultation.

That was merely the preliminary to a substantive point, which is that Ministers and their officers and officials, as they know, need to act in accordance with the principles of judicial review and in a reasonable manner at all times. However, I am not saying that the Secretary of State or his officials should have no powers to issue directions in certain cases and, to be fair, the rationale for what is envisaged is set out in the explanatory notes.

In effect, the clause provides for the power to strike out a work-related activity if it is thought to be inappropriate for a person’s circumstances. However, I suspect that by the time that happened, relations between the personal adviser and the claimant or customer would have deteriorated badly, if the claimant had not been prepared to listen or were acting in ill-faith—a matter that we explored earlier—and went wild, as it were, or refused to do what was suggested. It is appropriate that Ministers take a moment or two to explain to the Committee the circumstances in which they envisage such a situation arising.

Will the Under-Secretary explain the relationship between that and an action plan? The purpose of the iterative process of interview is to establish capacity for work and the employment allowance. If unable to work, the person would attend a health assessment for  work-related activity and an action plan would be drawn up. It would be useful if she could share with the Committee Ministers’ thinking on how divergences might arise, be monitored and then acted on under the terms of the clause.

I have some other administrative points to raisewith the Under-Secretary. First, I take it that the requirements would not apply to persons receiving the support allowance. I think that that is clear in the text because it is tied to clause 12, which I do not think applies to the support allowance, but it would be useful if she could clarify that. My second point is on the relationship with the payment of benefit. In effect, any direction under the clause would be saying, “Whatever the claimant is doing is not appropriate and does not count”. In normal circumstances, we cannot order people to stop what they are doing, but clearly the implied threat is the withdrawal of benefit. I am not clear on whether that would kick in retrospectively or only from the date of the notice.

Finally, in the spirit of my opening remarks, it is fairly clear that if that set of circumstances were to arise, relations already would have broken down. A formal notice of a decision by an officer on behalf of the Secretary of State would be a severe sanction in itself. It is quite important that if that then jolts people back to a sensible path forward, there is provision for advancing in a more constructive way. I presume that it would be possible at that point to rewrite the action plan or for the individual claimant to be able to make alternative proposals. I hope that, in normal circumstances, those will be considered in good faith and acted upon as soon as possible.

In conclusion, we have no absolute opposition to the principle of the provision; it may be necessary. It will, I suspect, be confined to a small number of cases, but it is important that any action taken under the clause is taken fairly. It should be properly documented and accompanied by the necessary input from the personal adviser into revising the action plan and involving the claimant in what they should be doing, as opposed to what is deemed to be inappropriate. However, the claimant should be able to make representations if they have not already done so and should be treated fairly throughout the process. I suspect that this can be done through regulations. Clearly it needs to be and we look forward to the Under-Secretary’s response.

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

It is good to be in Committee again, Mr. Amess. In the spirit of the remarks of the hon. Member for Daventry (Mr. Boswell), I hope that we can make some progress today. I certainly will be working to achieve that. I am sad to say that once again, while the weather in London may be clement, the weather in the highlands is rather inclement, as it has been over the weekend. I am not sure whether that has much bearing on our proceedings, but I thought that it was worth starting with that observation.

I shall be brief. The clause gives Ministers the power to direct that certain activity does not count as work-related activity. Presumably such a direction would have to be issued retrospectively. In other words, someone would be carrying out a certain activity and the personal adviser would, for whatever reason, decide that it was not work related.

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

I am sure that the hon. Gentleman is right in his interpretation, although we must wait for the Under-Secretary’s confirmation. One would hope that there was something of an iterative process in which the personal adviser rang up and said, “Are you sure that that is the right thing for you to be doing?” There would then be something of a dialogue and this directive procedure would be used very much as the last resort.

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

That is the burden of the point that I was coming to. Clearly, the process of engagement that is set out in this Bill involves work-focused interviews, action plans being drawn up and a great deal of conversation and engagement with the claimant. The circumstances in which a direction would have to be issued to an individual—presumably such directions would be issued only in individual cases rather than generically, stating that a certain class of activity would not count as work-related activity—suggest that the previous steps in the process, for whatever reason, had not worked. There had been a breakdown in communication, a misunderstanding or the personal adviser or the contracted-out organisation would simply have chosen to issue such a direction. It would be helpful if the Under-Secretary could set out in a wee bit more detail the circumstances in which she foresees this power being used.

I would also welcome clarification on what rightsthe claimant has in response to such a direction. Presumably if someone has engaged in something that they consider to be work-related activity, made it clear to the officials that they regard it as work-related activity and are then told that the Secretary of State does not consider it to be work-related activity, they will have to do something else. In passing, I note that it seems that the powers here in relation to directions are quite different from the directions under the jobseeker’s allowance. Under the jobseeker’s allowance, directions can be made that the claimant must do something specific, whereas this direction is only to say that they must not do something specific, or if they do, it is not to count as work-related activity. I should be grateful if the Under-Secretary could clarify that.

There is thus the question about a claimant’s right of appeal or how they can challenge such a decision. Presumably if a claimant has carried on in good faith in the belief that such an activity is work-related, there must be a process by which they can engage in a discussion about the reasoning behind a decision notice being issued and the consequences of it. I look forward to the Under-Secretary’s response.

Adam Afriyie (Windsor, Conservative)

I have three or four brief points to raise with the Under-Secretary, which relate to the mandatory nature of work-related activity. The notes on the Bill state that when mandatory work-related activity is introduced, it will apply to most claimants in the work-related activity group. I want reassurance that we are not returning to the days of the workhouse when people were instructed to undertake certain types of work-related activity. I would be concerned about the state of mind of people in that position, especially those in vulnerable groups who have mental health challenges but who are not in the long-term support group.

My second concern is that the requirements placed on claimants will be further developed in the light of the pathways to work experience. Without the final report on that programme, which I think will be published next year, how confident can we be that the interim results will deliver the right types of new requirements that will be suitable for people in the work-related group?

Thirdly, I seek clarification on clause 14(3), which seems to allow the Secretary of State to vary or revoke retrospectively a determination of what is a work-related activity. I am always slightly wary of retrospective directions or determinations and I hope that the Under-Secretary will be able to reassure me in that respect or perhaps give an example of why the clause is in the Bill.

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

My hon. Friend has healthy instincts about the arbitrary exercise of powers by Ministers. Does he also agree that officers or officials acting on behalf of the Secretary of State also need to be very competent in making those judgments and to seek the advice of others, including medical specialists, before jumping to conclusions?

Adam Afriyie (Windsor, Conservative)

My hon. Friend makes the point very well indeed that if a retrospective decision is made and it concerns a health-related matter, the experience and skill of the person making that judgment, which may be outsourced to a third party, must be considered very closely.

My final query relates to the last line of the notes, which states that it is envisaged that the proposal would be used only in very limited circumstances where a given activity was wholly inappropriate to the claimant. Could the Under-Secretary give an example from the existing pathways to work pilots of what those very limited circumstances may be, and what she would consider to be wholly inappropriate for the claimant?

Anne McGuire (Parliamentary Under-Secretary (Disabled People), Department for Work and Pensions; Stirling, Labour)

I am pleased to be here again on a Tuesday morning under your chairmanship, Mr. Amess.

I can reassure hon. Members on all the points that they have raised in the debate. I was fascinated to hear that when the hon. Member for Daventry was a Minister, he immediately thought of Stalin; socialists tend not to think of Stalin.

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

We could have a very interesting discussion outside the Committee on the psychology of whether people really found Stalin warm, caring and generally supportive. For the purposes of this argument, I need to put on the record that being a Stalinist was not in my view a term of approbation and certainly not for any Conservative Minister of the Crown and, I dare say, not for any Labour Minister of the Crown either, which is the point of my remark.

Anne McGuire (Parliamentary Under-Secretary (Disabled People), Department for Work and Pensions; Stirling, Labour)

I am so glad I raised that point, so that we heard that explanation. It was a fascinating image and it sits at odds with the hon. Gentleman’s image, both in and outside this Committee.

I hope I can give hon. Members comfort on the points that they have raised because the clause permits personal advisers to rule that certain kinds of activity do not count as work-related activity in circumstances that will be set out in the regulations, when they are published. Those regulations will be subject to a separate vote in the House.

May I give the hon. Member for Windsor (Adam Afriyie) definite reassurance that we are not inventing either the workhouse mentality or the ethic of the workhouse? We cannot and will not direct a claimant to do a specific type of work-related activity. It is about getting the right support in place for the individual and, while I am sure Victorians may have thought they were providing the right support for those who went to the workhouse, I am sure many of us would agree that that was not the case.

I also reassure the hon. Member for Inverness, Nairn, Badenoch and Strathspey (Danny Alexander) that it is not a generic instruction. It is not about taking out of the equation a whole range of activities. It is very specifically related to an individual. I will come to some of the circumstances in order to give an indication of the sort of examples we think the clause may need to cope with.

We do not anticipate that the provision will be widely used or widely needed. As my hon. Friend the Minister for Employment and Welfare Reform and I have indicated throughout the Committee proceedings, and has been accepted by the Committee, we are seeking to take a collaborative and consensual approach with the claimant. We have proved through our pathways approach that by working with people we get more out of them in terms of the support they are willing not just to accept but to relate to. I think that that is very important.

The hon. Members for Windsor and for Daventry raised the issue of retrospection. I can confirm that subsection (3) of the clause enables a direction to be revoked or changed so that an activity that was designated as not being a work-related activity can subsequently be so designated. It is a positive subsection that is designed to recognise that work-related activity will be part of the action plan that will be agreed between the personal adviser and the customer. It may well be, however, that the customer does something outside the action plan that meets the requirement. It would be unfair to not give the credit for that work-related activity. The direction is separate.

Under what circumstances can the power be used? As I have said, we anticipate that the use of directions in practice will be rare. To give an example, a graduate in English may decide that a work-related requirement could be a basic English skills course. That would be totally inappropriate for someone with that level of qualification. It would perhaps have more to do with attempting to tick a box than to embrace work-related activity. Somebody may decide that they want to become a personal trainer. Again, given the individual circumstances, their qualifications and so on, that may not be appropriate and may be a recreational view of work-related activity. This is what I mean when I say that it is very specific to the individual and it is not about excluding all sorts of activity. I also confirm to  the hon. Member for Daventry that clause 14 will not apply to the support group and I am pleased to put that on the record.

Many interim reports have been published on the pathways evaluation. We are learning all the time about pathways, but the predominant message we get from them is that if we work with individuals as individuals, we get a greater response rate, which means getting more people into work. The pathways approach may require some tweaking as the evaluations are produced, but it is recognised as an individual-focused support for people who are long-term unemployed or who may never have been employed at all.

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

We all agree that there are circumstances in which the work-related activity programme needs to be varied, but I do not understand why it cannot be varied under the regulations in clause 12(1). Will the Under-Secretary provide specific examples of situations in which work-related activity could not be varied under clause 12, thus making clause 14 necessary?

Anne McGuire (Parliamentary Under-Secretary (Disabled People), Department for Work and Pensions; Stirling, Labour)

I hoped that I indicated that clause 14 should act as a backstop in situations where people are not prepared to engage in activities that are supportive of their search for employment. Clause 12 deals with all sorts of other circumstances. Clause 14 will allow us to deal with specific and, I hope, very rare situations: I gave the example of someone with an English degree thinking that they could tick the box by doing a work-related activity that would not be appropriate for them, although it may be for another individual.

Various hon. Members asked for reassurance on directions and whether there will be a right of appeal. I can confirm that any directions made under the clause will be subject to an independent right of appeal. Furthermore, if a customer were sanctioned for undertaking an activity that was not treated as a work-related activity under clause 14, they would have a separate right of appeal under clause 12.

Clause 14 is necessary to ensure that there is flexibility on the ground to deal with customers undertaking inappropriate activity. It is not intended to force people into a specific activity, but rather to retain the right to deem a particular activity non-work-related, due to the circumstances of the individual and his or her action plan.

Adam Afriyie (Windsor, Conservative)

On a point of clarification, does the hon. Lady have an example from the pathways to work pilot of something that would have been outlawed or was determined as a non-work-related activity?

Anne McGuire (Parliamentary Under-Secretary (Disabled People), Department for Work and Pensions; Stirling, Labour)

The hon. Gentleman may have to be patient until we have seen some of the final evaluations of the pilot. If I come across an example during our proceedings that would meet his requirements, I will advise him of it. I hope that I have indicated the type of example that we would expect to occur. I reiterate that we do not anticipate using the clause to a great extent, but it is important to deal with any situation that may arise, although we hope that it will not.

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

I am grateful to the Under-Secretary for her response; its spirit is impeccable. Just as my hon. Friend the Member for Bury St. Edmunds banished the term “scroungers” from the Committee, we may thank her for encouraging us to banish the term “Stalinism”. We will put them in the same category.

There are two points that I would like to come back to. The first is supportive of the Under-Secretary and relates to the helpful exchange that she had with the hon. Member for Inverness, Nairn, Badenoch and Strathspey. It is important that officers are qualified to take decisions and offer advice where appropriate. She did not mention advice but I will take it as being implicit—I see that she is nodding. However, officers must not fetter their discretion in any particular case.

The Under-Secretary gave the example of an English graduate. It might be regarded as inappropriate if such a person decides that they must do an English foundation course. However, I can imagine a circumstance in which such actions might be entirely appropriate, such as if, say, the person had suffered a stroke and needed to recover. That is the kind of flexibility that we need. We are not arguing about that.

One specific issue that the Under-Secretary did not cover—I do not want to press her into making an immediate decision—relates to the interaction between clauses 12 and 14. Clause 14 is, as it were, dependent on clause 12. If a person were deemed not to have been carrying out work-related activity, and then a direction was issued, would that person’s benefit be impaired for any time before formal notification? A person may have been acting in good faith. The personal adviser may even feel that what is being done is harmful to the interests of the individual and that it ought to stop as soon as possible. Assuming that there is not some dumb insolence at work, it seems to me that there is a potential disadvantage in somebody suddenly getting a note slammed on their desk saying, “What you are doing is inappropriate, and you have lost your benefit from the start.” Bad relations with the personal adviser may further complicate such a case.

My reading of clause 12(1) is that it relates to “continuing to be entitled” to benefit “to the full amount”, and that before a direction is issued, it would therefore be impossible to dock that benefit retrospectively, although that may happen after the event. However, the Under-Secretary will need to pay attention to that matter before the regulations are defined.

Anne McGuire (Parliamentary Under-Secretary (Disabled People), Department for Work and Pensions; Stirling, Labour)

I obviously recognise the point made by the hon. Gentleman. In many respects, he answered his own question by referring to the development of the regulations, which will be subject to a vote in Parliament.

I also thank the hon. Gentleman for his supportive comments. The example that he used finessed mine. He pointed out circumstances in which it would be wholly appropriate for an individual to take on a work-related activity that may not, on paper, appear to be so. However, through the approach of the personal adviser, such a course of action could be deemed wholly appropriate.