Clause 17
Welfare Reform Bill
5:00 pm

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

I beg to move amendment No. 53, in clause 17, page 14, line 41, leave out ‘this section’ and insert ‘subsection (1)’.

Jimmy Hood (Lanark and Hamilton East, Labour)

With this it will be convenient to discuss Government amendment No. 54.

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

The amendments enable a person to be disqualified from receiving payment of a contributory employment and support allowance if they are absent from the UK or in prison, unless regulations provide otherwise. Although they will be disqualified from receiving payment, they will still be treated as being entitled to benefit, and we need to be clear about the difference between entitlement and payment. The flexibility to make exceptions in regulations would allow us to continue to pay someone a contributory allowance where they were, for example, absent from Great Britain only temporarily.

The clause and the regulations will allow people who are absent from Great Britain for short periods, and prisoners who receive short custodial sentences, to continue to be entitled to ESA while disqualified from payment of ESA, so they will keep the underlying entitlement. That will enable us not to stop and start claims unnecessarily, wasting the time and resources of claimants and staff. We intend to make provision through regulations to limit the period of disqualification to six weeks, after which a person will be treated as no longer being entitled to the benefit.

The policy intent for prisoners is clear: the state should not maintain someone who is in prison through benefits. The provision allows us to disqualify such people for payment purposes for short periods, rather than to disentitle them. In that way, we will not waste resources by stopping and starting claims when people serve only a short sentence. Where someone is in prison for longer, however, we will use powers in paragraph 1(a) of schedule 2 to remove their entitlement to benefit altogether.

Once the period of disqualification ends, as set out in regulations, entitlement to ESA will cease altogether if the claimant is still abroad or imprisoned. However, if they are no longer abroad or in prison, the provisions will enable benefit to resume without the need for a fresh claim. Exactly the same provision applies to incapacity benefit, and it has been a feature of the contributory benefits system for many years.

We strongly believe that the benefit system should not support people who are in prison or abroad, except in specific circumstances, as they should be supported by other means. The ability to disqualify the payment of benefit when entitlement is retained is important to protect public funds.

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

I am sure that the Committee will be relieved to hear that I do not object to the principle of the amendments, and that I shall not advise my hon. Friends to oppose them. However, I would like a moment of the Under-Secretary’s time. First, I make the point that apparently, or overtly, the provision on prisoners has been omitted. That may have been purely a technical oversight, but she should acknowledge the role of my hon. Friend the Member for Runnymede and Weybridge in drawing attention to the fact that many of the issues involving prisoners and their benefits have been rather overlooked by the Department. It is obviously unacceptable for prisoners to receive benefits when they are in Her Majesty’s custody.

That issue prompts a slightly more substantive point, because, as the Under-Secretary made clear when moving the amendments, we are talking about short periods of incarceration. What is the position regarding available support services and the pathways to work programme? Clearly such services are not geared towards people who are resident in prison and may not be extendable to people who are in prison, but there may be cases in which they could be used—for example, with someone who has a fluctuating, explosive condition, who has been put in the cells and charged with some public order offence. There may be sensible reasons, to do with rehabilitation, for the pathways programme to continue at that point. If the Under-Secretary cannot give me a pat answer, will she consider whether that should not be ruled out? I am interested in this not in relation to the moral approbation of a crime that has been committed, but as a realistic pathway to rehabilitation. Many of us are interested in prisoners in that wider context.

I pause on only one other matter now, although we may have some comments to make in the stand part debate, which is the reference to Great Britain. The hon. Member for Inverness, Nairn, Badenoch and Strathspey has tabled amendment No. 201 to schedule 2, which raises the same issue. As we will debate that amendment later, I do not wish to anticipate or rehearse any of the comments that he might make, but I am genuinely puzzled about one point.

This country is the United Kingdom, with Great Britain and Northern Ireland. We know, and clause 60 reminds us, that we are not legislating for Northern Ireland in the Bill. That may happen either by an Order in Council or through a procedure of the devolved Assembly if it is reconstituted and takes up its powers. I simply make the point that moving to another part of the United Kingdom is not the same as moving to a UK dependency such as the Isle of Man or Guernsey; it is not leaving the UK. It is odd, therefore, that the structure of devolved government, or otherwise, seems to preclude Northern Ireland. There may be a perfectly innocent explanation for that, but I am genuinely puzzled by it. I raise this issue only for completeness, and do not make any suggestion that I wish to oppose this particular amendment, which seems entirely sensible.

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

I shall deal first with the Northern Ireland issue. The hon. Gentleman may have helped the whole Committee by raising this point, because it can be confusing when we talk about Great Britain, the United Kingdom and Northern Ireland. He makes the point that we are a country of union, and that Northern Ireland, Scotland, Wales and England are all part of the United Kingdom. I thought, however, that he realised that for some significant years, Northern Ireland has had its own social security system, which often mirrors—if not exactly mirrors—the provisions of our own social security system. However, the actual powers have resided in Northern Ireland. I think that I am right in saying that we have a reciprocal agreement. I know that that sounds like peculiar terminology in the context of the United Kingdom, but that is just the way it is. We have had that agreement since 1976, so it is not something new or innovative that we are imposing in the Bill to link in with the current situation. I hope that that addresses some of the issues raised. It is long held in legislation that Northern Ireland has a slight  separation, but the situation often mirrors, and may well exactly mirror—I do not want to be caught out on a technicality—the social security system in the rest of the UK.

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

I am grateful to the Under-Secretaryfor that explanation. I suspected that it might be something along those lines, but the amendment is intended to maintain the entitlement to a benefit, not the actual payment of it, for the comparatively short period of six weeks, not least for administrative reasons. She has been slightly unclear as to what would happen if, perhaps for no more reason than taking a therapeutic holiday or staying with a sister in Northern Ireland, a claimant was to move over there. Would the benefit be maintained or lost? What would happen for the weeks spent in Northern Ireland? Would the claim not fall and be replaced with a Northern Ireland claim? We do not seek to trap the Under-Secretary, but she might like to reflect on that at length or at her leisure.

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

I reassure the hon. Gentleman that, because of the agreement between the social security system in Northern Ireland and that of the other parts of the UK, which I called a reciprocal agreement, people moving from one jurisdiction to the other do not lose out on any non-means-tested benefit. The situation is, in a peculiar way, unified in terms of the individual’s right to be protected.

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

I shall not detain the Committee long, but there are important questions to be answered about a number of the provisions of the clause. It is worth noting in passing that, under previous clauses, we have discussed a number of different rules. Failure to follow them will mean that people can have their benefit sanctioned. This clause makes provision for circumstances in which someone can be disqualified from receiving benefit at all. It mentions the power to disqualify someone from receiving employment and support allowance on the grounds of misconduct,

“the failure without good cause to follow medical advice”,

which is loose phrasing, or the failure without good cause

“to observe any prescribed rules of behaviour.”

That means that someone who has gone through the assessment process and been identified as having limited capability for work, and is therefore entitled to receive the employment and support allowance, could nonetheless be disqualified from receiving it and therefore receive no benefit at all for up to six weeks. That could happen to someone who had become of limited capability for work or who remained in that category, through their own misconduct.

The Under-Secretary has rightly made the point that provisions to disqualify someone from benefits already exist in incapacity benefit legislation. She said that the Government were seeking to repeat those provisions in the context of the Bill. I do not wish to be thought of as a pedant, but I should point out that under IB rules someone can be disqualified where

“he fails without good cause to attend for or submit himself to such medical or other treatment as may be required in accordance with the regulations”.

Clause 17 replaces that fuller wording with the term “medical advice”. Will the Under-Secretary spell out what is meant by “medical advice”? Does it mean that someone who has had a work-focused health-related assessment and refused to follow the suggestion to seek further medical help or condition management, or advice from their GP to go for a counselling session, could be disqualified for ESA?

The term “prescribed rules of behaviour” is also worryingly vague. What do the Government envisage by it? The matter was brought up in an earlier amendment. I hope that, in applying the clause, the Under-Secretary and the Government will take into account the possible effect of such rules on those with behavioural problems or other mental health conditions that might affect their behaviour. Any prescriptive sense that certain forms of behaviour are required in order to qualify for benefits could have worrying implications for people in those categories. I would welcome any further information that she could provide on that point.

There is a further question on the point about medical advice. If someone is to be disqualified for benefit for a failure without good cause to follow medical advice, to use the Bill’s language, what is likely to count as “good cause”? Who will provide the evidence that someone has failed to follow medical advice? Will it be their GP, or the doctor or other medical practitioner who is required to carry out the medical assessment?

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

Would the hon. Gentleman not also like to reflect on the difficulty of what happens if the person’s GP and the doctor examining on behalf of the Department take a different view about the appropriate course of medical action?

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

The hon. Gentleman makes a pertinent point. There might be a disagreement about medical advice. We know from our earlier discussions about the clause on work-focused health-related assessments that the attendance at such an assessment could be subject to a sanction—in other words, someone’s failure to turn up could lead to their benefit being sanctioned.

It was made clear by the Secretary of State in a letter to me, and by other Ministers, that any particular course of medical action or treatment is not subject to a sanction, yet the Bill provides that simply failing to follow medical advice will potentially be grounds for disqualification from benefit altogether. We are not simply talking about someone having their work-related activity premium sanctioned, but about their being disqualified from benefit overall.

I am sure that the Government do not intend to reverse the undertaking given on work-focused health-related assessments in the context of this clause.None the less, the rather vague language used about the severe penalty of disqualification from benefit warrants a little more of the Committee’s attention, so I look forward to the Under-Secretary’s response.

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

I think that the Under-Secretary will probably shortly be telling us that the clause is again about delinquency or a wilful refusal to follow the rules. In that, we can be sympathetic to the Government’s position. Equally, I find my notes on the clause in sympathy with the comments by the hon. Member for Inverness, Nairn, Badenoch and Strathspey. I suppose that the answer to both is that we need to strike the right balance with the right kind of consultation to ensure that the rules work.

I, too, have some points that I would like to emphasise. First, we should check the coverage because it appears that the disqualification rules are not confined to those on the employment component and could apply also to those on the support allowance. I think that Ministers might need to reflect on that because once somebody has limited capacity for work, they are within the frame, and if they are unable to participate in work-related activities, they would move on to the support component. I cannot see how that sensitive route is excluded by the clause.

My second concern relates to serial disqualification. The Minister has made it perfectly clear that the intention is to deal with a short-term situation, but as far as I can see, there is nothing in the clause to stop an officer taking the view that somebody should be disqualified and then disqualified again, as it were, indefinitely. Will she respond to that point?

Following on from that, I am concerned about the definition of misconduct, particularly if relations with the claimant are bad or, to be honest, if the official has a bee in their bonnet. It would be arguable, although I would think not in this Committee, that somebody with a condition induced by smoking or the misuse of drugs such as cannabis might well have a psychotic condition that has resulted in their limited capacity for work. We can all take different views about the balance between deploring or even trying to sanction such behaviour and being understanding, but the general spirit of the Committee is to try and take people as they are and to work with them to get them back into the labour market.

I am genuinely concerned that somebody might within the rubric of the clause be able to say, “It is your own fault that you have got yourself into this position of being unable to work”. Let us take obesity: “You are a very fat slob and should not be in that position, but now you cannot work.” I do not think that that is what the Under-Secretary is targeting in the clauses, but I would like her assurance that that is the case.

I shall move on to the underlying concerns of the hon. Member for Inverness, Nairn, Badenoch and Strathspey, which I too have flagged up. Let us consider people with conditions that are somewhere between the medical and the social. I am thinking about addictions, whether to alcohol or drugs, or—I make a distinction  between these—mental health conditions that might well fluctuate. Those are certainly medically relevant conditions, but they concern the person’s behaviour as well as medical condition. It would be quite wrong to think about disqualifying, because of misconduct, people who had a serious drink or drugs problem and whom one is trying to help through pathways. The references to “medical advice” and “without good cause” might make that easier, although it is difficult to know how we tie that down or determine how far it is being complied with.

In all seriousness, the Under-Secretary will be aware that many people who have got into such a situation might lead pretty chaotic lives. In the great scheme of things, it might be their fault, or they might have contributed to their own difficulties. That might well be true and the origins or the pattern of difficult behaviour might go a very long way back, but to remove a benefit for six weeks because of misconduct might not be the most fruitful thing to do, or the fairest.

I hope that the Under-Secretary will reflect on that balance and respond to the concerns that have been expressed. In no sense does anyone here wish to subvert the intention to stop delinquency, but it is important that the provisions are tied down to that and not to wider considerations.

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

I am pleased that the issues have been aired, because that allows us to deal with some of the concerns that have been raised. I hope that I can, once again, give some comfort to Committee members.

The hon. Member for Daventry (Mr. Boswell) asked whether people with mental health conditions would feel as though they were being victimised by the clause. I reassure him, and other colleagues too, that we will not disqualify any claimant without taking into account all the relevant factors, such as the likely impact of an illness on their ability to understand and comply with advice and evidence from their own medical practitioner, or without giving them the opportunity to explain their position. I must reiterate the words “good cause”. Disqualification takes place where there is no “good cause”. I hope that the hon. Gentleman will have appreciated, as we have progressed through the Bill, that we recognise the seriousness of people’s fluctuating mental health conditions.

Medical advice and treatment has been a part of IB for many years. The IB legislation contained the words “medical treatment” and that has never caused any great concerns. I hope that hon. Members recognise that we would not anticipate using this power in any overwhelming way.

I think that the hon. Member for Daventry was backing up comments made by the hon. Member for Inverness, Nairn, Badenoch and Strathspey about whether people could be disqualified if they did not take advice to give up smoking or lose weight. If that were so, a lot of Committee members would not qualify for our jobs. No names, no pack drill. We are not anticipating using the power in that way; we would use it only where, for example, a claimant disregarded without good cause advice from their general practitioner or hospital specialist regarding generally accepted, reasonable and non-invasive treatment that  would significantly improve their condition. The GP will determine the medical advice, although it will be an issue for Jobcentre Plus advisers to decide about whether there is good cause to disregard that advice.

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

I welcome that clarification. However, if someone failed to follow medical advice offered by a GP or another medical practitioner on a work-focused health related assessment, which is considered reasonable as Ministers have described it, would their GP then have to make an assessment? How would it work in those circumstances?

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

To a certain extent, perhaps we are talking at cross purposes. The powers under the clause are intended specifically to deal with those people who wilfully or intentionally try to get round the regulations relating to the new employment and support allowance by not following standard medical advice. For example, someone may not take their medication to manage their condition, which would put them in a worse medical condition than if they had followed standard advice.

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

The Under-Secretary of State has made it clear that the basic responsibility for medical advice lies with the claimant’s GP. As I understand it—she will disabuse me if I am wrong—that advice is privileged between the GP and their patient who is, for this purpose, the claimant. Therefore the personal adviser, or the person who has conducted a work-related health-focused assessment, has no locus in the matter. It would be an entirely private matter if the GP said, “You should no longer take these drugs or you should take more of these drugs,” and the person failed todo it.

I fully understand the Minister’s assurance that this may be a precedence in IB and may never have given rise to any problems, but there is the potential of a confidentiality problem. Of course, if someone conducting an assessment on behalf of the Department sees an acute medical condition, they have a professional duty to draw that to the attention of any medical adviser in the patient/claimant’s best interests. There is at least a sensitivity there. The Minister may like to reflect on how this will be tied up and who best will carry it out.

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

I thank the hon. Gentleman for his comments. As usual, he makes an important point. I am please to be able to give him the reassurance that obviously there is an issue of confidentiality. There is the issue of customer consent to information. It has to be informed consent. I appreciate that that is one of the issues that I mentioned earlier about whether someone fully understands what they are giving consent to. It is for the general practitioner to send Jobcentre Plus the information relevant to the benefit entitlement, not some of the wider issues that may affect the individual. Just for the record, I point out that for the work-focused health-related assessment, non-participation is equated to a sanction, not a disqualification. It would be best to get the terminology right.

Adam Afriyie (Windsor, Conservative)

Will the Minister give way?

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

I had hoped to make slightly more progress.

Adam Afriyie (Windsor, Conservative)

I appreciate the Minister’s generosity in giving way. I seek reassurance on one small point. If a disqualification is forthcoming under the clause, is the claimant entitled to appeal and, if so, under which legislation?

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

I can reassure the Committee that where there is a sanction or a disqualification, there is always the right to an independent appeal. That is just the way the system operates. I should reiterate for the sake of clarity that this is about non-participation without good cause in the prevailing circumstances. The hon. Member for Inverness, Nairn, Badenoch and Strathspey was worried that if someone came in and was obstreperous or did not appear to be following the normal modes of behaviour that would somehow lead to a disqualification.

This is about misconduct that leads to an injury or refusal to follow health and safety advice, for example. That is what is intended under the clause. Although a number of organisations have expressed some concerns, I hope that the Committee will accept my reassurances that there will be adequate training for staff and safeguards will be put in place so that customers are always given the opportunity to explain their actions before any disqualification occurs.

We will use the power in the clause to disqualify benefit where a customer persistently fails to follow acceptable rules of behaviour, for example, where they fail to provide their address so a review of benefit entitlement cannot be undertaken. It has been a feature of incapacity benefit since 1996 when the incapacity benefit rules were initially drawn up. We want to maintain confidence in the system and protect it from abuse. The clause allows us to do that. I recognise the concerns and I hope that I have allayed some of the fears.