Clause 2

Welfare Reform Bill – in a Public Bill Committee on 24th February 2009.

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Work-related activity: income support claimants and partners of claimants

Amendment proposed (this day): 11, in clause 2, page 6, line 12, leave out “in prescribed circumstances”.—(Mr. Clappison.)

Question again proposed, That the amendment be made.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

I remind the Committee that with this we are discussing the following: amendment 91, in clause 2, page 6, line 29, after “which”, insert

“the person is willing to undertake and which”.

Amendment 92, in clause 2, page 6, line 30, at end insert—

“( ) an action plan shall include details of any sanction that can be applied under the Act if the person, without good cause, fails to comply with any of the activities in the action plan.”.

Amendment 84, in clause 2, page 6, line 31, leave out “may” and insert “shall”.

Amendment 85, in clause 2, page 6, line 32, after first “the”, insert “reasonable”.

Amendment 86, in clause 2, page 6, line 34, leave out paragraph (a).

Amendment 93, in schedule 1, page 54, line 45, at end insert—

“An action plan shall include details of any sanction that can be applied under the Act if the person, without good cause, fails to comply with any of the activities in the action plan.”.

Photo of James Clappison James Clappison Shadow Spokesperson (Work and Pensions)

Having had an opportunity to reflect carefully, I find that the amendments tabled by the hon. Member for Rochdale are even more defective than I first thought, but I will confine myself to my original intervention. Liberal Democrat amendment 84 is going about things the wrong way round. Instead of saying that regulations “may” make provision for reconsideration and setting out the circumstances in which that will take place so that everyone knows what those circumstances are and there is clarity, and so that the claimant, in particular, knows what the circumstances are, the amendment would do away with that—and just about do away with paragraphs (a) to (e) of subsection (5)—because it would make it mandatory to have reconsideration. It would merely require that reconsideration shall take place at “the reasonable request” of the claimant without saying what amounts to reasonable. That seems to be the worst of all worlds.

Paul Rowen (Rochdale) (LD) rose—

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

Order. The hon. Gentleman cannot intervene on a Member making an intervention.

Photo of Tony McNulty Tony McNulty Minister of State (Employment and Welfare Reform; Minister for London), Department for Work and Pensions

I had much of the lunch break to reflect on the matter, and I broadly agree that the Liberal Democrat amendment, although I do not doubt its good intentions, would not achieve anything remotely similar to that described by the hon. Member for Rochdale when he spoke to it. It is perverse and would require mandatory reconsideration. Even if the adviser and the individual were as happy with each other as they could be, there would have to be reconsideration, which does not make much sense. The problem is worse than the hon. Member for Hertsmere suggested because putting in the word “reasonable” and agreeing to an action plan with all the terms on the side of the individual, and then saying further that any sanctions must already be agreed by the individual would, by accident or design, water down conditionality to the point of perversity and would offer nothing of substance to the Bill.

Photo of Paul Rowen Paul Rowen Shadow Work and Pensions Minister

Does the Minister accept that the Government made much in the Green and White Papers about personalised conditionality and a personalised agenda? Does he agree that lack of a legal right for a claimant to have their case reconsidered runs totally contrary to that? The Bill has 86 provisions for which regulations will specify what will be implemented. Does he accept that what might be defined as a reasonable request for reconsideration could be subject to yet more regulations?

Photo of Tony McNulty Tony McNulty Minister of State (Employment and Welfare Reform; Minister for London), Department for Work and Pensions

No. The hon. Gentleman misses the point, and the import of “made” versus “shall”. He would condemn everyone to reconsideration whether or not that was requested. We have said collectively until we are blue in the face that this is about rights as well as responsibilities, and about individuals establishing a relationship with their personal adviser that is in their mutual best interests. The direction is not one way, with imposition from the Jobcentre Plus personal adviser, nor is it one way in the other direction. Although it seems that using the word “made” would be radically different from using “shall”, I concur with the hon. Member for Hertsmere that that would not achieve what the hon. Member for Rochdale wants. The hon. Member for Rochdale can reconsider the matter and try to come up with something that gets to where he wants to be, but his amendment does not do that.

Given that interplay, I say as gently as possible that amendment 11, which was tabled by the hon. Member for Hertsmere, also would not do that. The amendment would remove the words “in prescribed circumstances”, but the prescribed circumstances do not refer to the individual, the relationship or anything that we have discussed. They refer to the prescription of those from the wider population of lone parents to whom the circumstances refer. I do not understand what the amendment would achieve.

Photo of James Clappison James Clappison Shadow Spokesperson (Work and Pensions)

The purpose of the amendment is not to take out the power to prescribe circumstances, but merely to elicit information from the Government about how they propose to use this power. As such, it is a probing amendment.

Photo of Tony McNulty Tony McNulty Minister of State (Employment and Welfare Reform; Minister for London), Department for Work and Pensions

None the less, the amendment would not achieve what I think the hon. Gentleman wants it to achieve. I accept that the amendment is probing, but the prescribed circumstances refer specifically to individuals, and the thrust of the amendment is to make mandatory on all lone parents, regardless of their circumstances, a conditionality regime to which, as we discussed this morning, we are quite deliberately referring only specific subsets. This is almost Freud gone mad. Anyone with children would be caught, without prescription, under the clause as the hon. Gentleman would amend it, including those with young babies. I do not think that that is what he intends. We had this discussion in our previous sitting and I would ask that amendment 11, probing or otherwise, be withdrawn, and that the Committee gently ignores the others.

Photo of James Clappison James Clappison Shadow Spokesperson (Work and Pensions)

I am happy to accede to the Minister’s request. I hope that I made it sufficiently clear that amendment 11 was a probing amendment. We are not trying to take this out of the Bill; we wanted either to elicit more information or to speed the process along. With that in mind, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Paul Rowen Paul Rowen Shadow Work and Pensions Minister

I beg to move amendment 47, in clause 2, page 7, line 5, after ‘circumstances’, insert

‘including regard to that person’s mental health and any specific mental health needs that person may have’.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss the following: amendment 50, in schedule 1, page 53, line 30, after ‘failure’, insert

‘including demonstrating that failure was caused by a long-term or fluctuating mental health problem’.

Amendment 51, in schedule 1, page 59, line 18, at end insert

‘and circumstances where it can be demonstrated that a person has left employment voluntarily because of an employer’s failure to make reasonable adjustments concerning their mental health problems.’.

Amendment 52, in schedule 1, page 60, line 39, after ‘account’, insert

‘, including that person’s mental health and any specific mental health needs that person may have’.

Amendment 78, in clause 8, page 14, line 11, at end insert

‘including regard to that person’s mental health and any specific mental health needs that person may have.’.

Amendment 87, in clause 24, page 34, line 28, after ‘cause’, insert

‘(which shall include situations where the failure was caused by a long-term or fluctuating mental health problem)’.

New clause 5—Entitlement to tailored employment and career support

‘(1) All new ESA claimants and existing Incapacity Benefit claimants who are migrated to ESA, who have a diagnosed mental health problem which impacts on their ability to undertake work, will be entitled to an assessment carried out by, or linked to, Access to Work to determine what reasonable adjustments may improve the likelihood of retention should they find employment. This assessment must be carried out before the claimant may be compelled to undertake any compulsory work-related activity.

(2) The assessment will include evidence gathering from agencies responsible for a person’s employment support and for the provision of health services where appropriate and must include at least one interview with the claimant themselves.

(3) Any reasonable adjustments, recommended by the assessment, will be funded through Access to Work and will be available to any employer wishing to employ the claimant. Available funding for reasonable adjustments will be communicated to employers by a claimant’s employment adviser and will be transferable to a new employer in the event that the claimant moves jobs or employers.

(4) The assessment will be reviewed regularly and/or when the claimant moves jobs or employers to identify any changes to the adjustments required by the claimant.’.

Photo of Paul Rowen Paul Rowen Shadow Work and Pensions Minister

I wish to speak to amendments 47, 50, 51 and 52, all of which I tabled. They deal with certain categories of people with mental health needs.

Any direction relating to specific work-related activity should take account of a person’s mental health and concurrent needs. This relates to our issues with the qualifications of Jobcentre Plus staff and the way in which they will make directions when making decisions regarding work-related activity. Employment advisers should take a person’s mental health into account when drawing up action plans or programmes of activity, and amendment 47 has been designed to protect claimants with mental health problems from being asked to undertake an activity that might be harmful to their health.

Amendment 50 relates to schedule 1. Although we had this discussion earlier, it is clear that mental health illnesses fluctuate for many people. It would be wrong if an individual’s fluctuating mental health was not treated as a good cause for not attending a work-focused interview. We wish to put protection for people in that position in the Bill. Were such a person to fail to attend an interview, one of the good causes accepted without argument should be that that person has a fluctuating mental health illness—we think that that is reasonable. We would expect the personal adviser to accept that and thus not to consider applying sanctions.

Photo of John Mason John Mason Scottish National Party, Glasgow East

Although I anticipate that the Minister will say that we cannot put anything extra in the Bill to cover issues such as mental health, because there are so many other things that we could put in, does the hon. Gentleman agree that health and mental health issues are really worth underlining in the Bill?

Photo of Paul Rowen Paul Rowen Shadow Work and Pensions Minister

I agree. As I said this morning, concerns have been raised about various aspects of the Bill and its overarching scope. It is important to place safeguards in the Bill so that it is clear to both the claimant and the personal adviser what is a just cause. It is reasonable that we should do that.

Amendment 51 would insert a provision about reasonable adjustments into schedule 1. We support the fact that more and more people who were previously consigned to incapacity benefit will be supported back into employment. However, there must be an onus on the employer to take into account that person’s needs. There have been circumstances in which someone has returned to work and found that the support that they were promised did not materialise. We believe that it is reasonable for someone not to continue an activity because of an employer’s failure to provide the support that was promised. That might happen because the employer did not, in all good faith, appreciate what the support might involve. If we are considering people with a fluctuating mental illness, it is difficult to prescribe the support that someone will need, because that will vary over time and due to  circumstances. If an employer is not willing to accept that, it might be a reason why a person is unable to continue an activity. We believe that it is reasonable to accept that that can be a reason why a person has had to withdraw from an activity, which is why I tabled amendment 51.

Amendment 52 would insert into schedule 1 the words

“including that person’s mental health and any specific mental health needs that that person may have.”

Again, decisions to access sanctions against the claimant should take account of a person’s specific mental health needs. The Bill allows employment advisers to sanction claimants who have failed to comply with their requirements by withdrawing benefits. There needs to be a very specific safeguard to ensure that a person will not be penalised if they fail to comply because of a particular illness. That comes down to the fact that there needs to be an understanding of the fluctuating nature of mental illness and how although, in an ideal world, we can set up one set of circumstances, a person might need a totally different level of support two or three months down the line. We want to get some sort of commitment from the Government that if it is not possible to take account of mental illnesses that may affect someone’s ability to undertake tasks, there will not necessarily be a sanction and a loss of a benefit. We believe that that is the right way forward.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 4:15 pm, 24th February 2009

I shall speak in support of amendment 78 and new clause 5. Amendment 78 largely covers the same ground as that addressed by the hon. Member for Rochdale. It would insert into clause 8 a provision with regard to someone’s

“mental health and any specific mental health needs”.

Clause 8 is titled “Power to direct claimant to undertake specific work-related activity”. It specifically relates to the reasonableness of directions that may be given by the Secretary of State and says that, when judging whether such a direction is reasonable, the Secretary of State or someone acting on his behalf should take into account the person’s mental health or their mental health needs.

We tabled the amendment to probe the extent to which the Government’s regulations on work activity will adequately cover someone’s health requirements. It was also tabled specifically to consider the ability of Jobcentre Plus staff and to determine whether, following the training that they will get, they will have the skills necessary to take into account someone’s mental health needs themselves, or whether they would refer them to a professional who was able to do so. I should like some clarification on that.

Mind kindly supplied a briefing note in which it suggested new clause 5, which I thought was worth tabling. I do not propose to press it to a Division, but I want to explore Mind’s ideas about Access to Work. The Minister will know that Access to Work may be used by someone once they get into work, when their employer can have an assessment done to see what help they need. However, under the new clause, prior to getting employment, a new ESA claimant, or an existing  incapacity benefit claimant with a mental health problem who had moved to ESA, would be able to get an assessment through Access to Work to determine what reasonable adjustments they might need to improve their ability to get a job and, importantly, to retain it. That assessment would have to be carried out before that claimant was compelled to undertake any compulsory work-related activity. It would be possible to fund any reasonable adjustments recommended in the assessment through Access to Work, and that would give an employer the confidence that the cost attached to taking on a person with adjustments to their working routines, which might affect the way that they were going to employ them, would be funded. That would be a change to the way in which Access to Work works. I want to test the Government, to see whether they think such a proposal is worthy of exploration, and to find out the direction in which they might be going.

Access to Work recently had its budget doubled, which we welcomed. The present Minister for disabled people, the Under-Secretary of State for Work and Pensions, the hon. Member for Chatham and Aylesford, and his predecessors have said that Access to Work is one of the Government’s best-kept secrets and that they do not want it to be so. New clause 5 might be a way to improve the situation.

Photo of Tony McNulty Tony McNulty Minister of State (Employment and Welfare Reform; Minister for London), Department for Work and Pensions

I would not necessarily include new clause 5 in what I am about to say, but, in essence, we are being asked to provide for things that are already provided for. We already have provisions to ensure that a person’s health is always considered, so there is no need for that to be prescribed in the Bill. We say clearly that a person’s circumstances have to be taken fully into account, and I am at a loss to know what definition of “person’s circumstances” would preclude a consideration of either physical or mental health.

It is important that the array of conditions is taken into account. However, I caution the hon. Member for Rochdale about—I hesitate to use the phrase “undue specificity” again—specifying what he requests in the Bill. People might feel good if they get those words into the Bill, but they would not do the individuals on whom the policy is focused any favours. Allowing the flexibility for a broad range of definitions of people’s circumstances to be put in regulations will afford the greatest possible breadth of definition. I am comfortable with the Bill as it stands, because we want that flexibility in regulation, not least because regulations can be adjusted far more easily than primary legislation. If we went down the road of undue specificity and put too much in the Bill, but later found that we had left something out, we would have to wait for another legislative vehicle before we could alter the primary legislation.

Paul Rowenindicated dissent.

Photo of Tony McNulty Tony McNulty Minister of State (Employment and Welfare Reform; Minister for London), Department for Work and Pensions

The hon. Gentleman shakes his head, but that is a matter of fact, unless he wants a social security Bill every year, regardless of the circumstances, with all that would mean for what we are trying to do to reform and simplify this area. Things should be as straightforward as possible. There is broad consensus among Committee members about the need for flexibility, but we cannot have flexibility while we are trying to define such things in the Bill.

I accept the comments made by the hon. Member for Glasgow, East about mental illness, and I accept what others have said about having due regard to people’s experiences of domestic violence, or their need to help members of their family, and the barriers that such circumstances might present to work-related activities or any part of the journey. There are, quite deliberately, a host of personal circumstances that can and should be taken into account, but we do future users no favours by over-defining things.

I am glad that the hon. Member for Forest of Dean has recognised that we have doubled the Access to Work moneys. He will know that we are piloting flexibility around Access to Work—in London, in the first instance. I agree with my hon. Friend the Under-Secretary that it is one of our best-kept secrets, but going down the road of new clause 5 would be a tad impractical simply because it would be impossible to determine what reasonable adjustments someone might need until one knew what job they were going to do, so there is almost a circular deficiency to the argument. Do I accept that there should be some greater flexibility regarding Access to Work? Yes, I do, and we will look with interest at what the London pilot comes up with. For such a potentially vulnerable group, we should, in all practical circumstances, do what works. New clause 5 might create extra bureaucracy and add significant costs, so while the idea and sentiment behind it are certainly worth exploring, I would not put it in the Bill. I shall therefore rather tediously—I might change the record once or twice at a later stage—ask hon. Members not to press their amendments.

Photo of Paul Rowen Paul Rowen Shadow Work and Pensions Minister

In saying that we are trying to over-specify, the Minister has not understood the problem. The Bill gives jobcentre staff huge powers, but does not specify the limits of those powers. We might get regulations that set some limits, but, if experience is anything to go by, much will be left to discretion. The amendments do not seek to prescribe the definition of mental health, a person’s circumstances in relation to mental illness, or the circumstances that might involve them having to leave employment. They say merely that those things should be accepted as just causes under the Bill. I make no apologies for tabling such amendments. In our view, recognising such things in the Bill would be a vital protection for vulnerable people.

We are not saying that the amendments would define everything—they would not. I fully accept that regulations will specify the circumstances under which mental illness will be accepted as a just cause, but it is dangerous not to include such provisions in the Bill.

Photo of Tony McNulty Tony McNulty Minister of State (Employment and Welfare Reform; Minister for London), Department for Work and Pensions

With the greatest respect, the hon. Gentleman is defining things. If he were to put something in the Bill that was separate from regulations, with all that that implies, it would prevail over all other personal circumstances. That is precisely why we need to leave things general and flexible, which would be in the interests of the vulnerable people whom the hon. Gentleman seeks to help.

Photo of Paul Rowen Paul Rowen Shadow Work and Pensions Minister

I refer the Minister to amendment 47, which would provide for having regard to a person’s mental health. I accept that that regard will come from a health professional. The amendment would not define mental illness in the Bill, but say that that must be taken into account. Regulations can set out the conditions  under which a mental health condition would be regarded. I would have thought that reference to advice from a mental health professional should be the way forward.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The hon. Gentleman and the Minister are talking at cross purposes. This discussion has been helpful because the Minister has been able to explain to the Committee the direction that will be taken when his officials draft the regulations and he introduces them. To that extent, it has been helpful that the Liberal Democrats and Conservatives have tabled these amendments, because the Minister has been able to explain that mental health will be one of the important factors taken into account in the regulations. We are comfortable that that has been encompassed.

The Minister is right when he says that specifying in the Bill one set of circumstances, but not all of them, would create the danger of putting one ahead of the other, which I would not want. I would not want mental health needs to take precedence over other circumstances that might be equally important, and I think that that is how we square the circle.

Photo of Paul Rowen Paul Rowen Shadow Work and Pensions Minister

I understand what the hon. Gentleman is saying, and we have tabled amendments that deal with other areas of concern. However, on this issue, it is worth pressing the amendment to a Division.

Question put, That the amendment be made.

The Committee divided: Ayes 2, Noes 9.

Division number 1 Nimrod Review — Statement — Clause 2

Aye: 2 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Meg Munn Meg Munn Labour, Sheffield, Heeley 4:30 pm, 24th February 2009

I beg to move amendment 75, in clause 2, page 7, line 5, at end insert—

‘(aa) must be reasonable, having regard to whether the person has a learning disability and the nature of that learning disability;

(ab) must be reasonable, having regard to the adequacy of the support available to be provided to the person if they have a learning disability;’.

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss amendment 76, in clause 8, page 14, line 15, at end insert ‘; and

(d) must take into account—

(i) any misunderstanding of the requirements to participate owing to the nature of a participant’s learning disability, and

(ii) the adequacy of support provided to any participant with a learning disability to ensure they understood the requirements placed upon them.’.

Photo of Meg Munn Meg Munn Labour, Sheffield, Heeley

I am about to make the point that my right hon. Friend the Minister made quite well in relation to undue specificity by raising another area that I think is enormously important. I am doing it because I specifically want to probe that the relevant regulations will take into account the specific needs of people with a learning disability. I would also like to welcome, in some respects, the document, that the Minister has provided for us, on the use of regulation-making powers. Some of the issues that I am raising are set out within that, which is reassuring. I also want to note the helpful exchange which took place at the third sitting of the Committee with the Minister and his officials. I will not, therefore, be going over that ground.

However, I am seeking reassurance that the needs of people with learning disabilities will be properly taken into account when directions are given about work-related activity. Along with their needs, proper consideration should be given to their need for support, whether support is in place, and whether it is adequate to enable them to undertake that work-related activity.

I am very supportive of the concept of personalisation, although not the use of that term. It needs to mean helping people in the way that is most helpful to them. That is complex in regards to people with learning disabilities; it means recognising their capabilities, alongside areas where they need help. In responding to these amendments, can the Minister for the South East, my hon. Friend the Member for Chatham and Aylesford give me the reassurance that personal adviser will indeed be properly trained to identify those issues, to make proper assessments and ensure that people with learning disabilities are only directed to work-related activities that are reasonable as far as their own particular circumstances are concerned, and that they get the appropriate support that that individual needs to undertake those activities.

Photo of Jonathan R Shaw Jonathan R Shaw Parliamentary Under-Secretary (Disabled People; Minister for the South East), Department for Work and Pensions

I welcome my hon. Friend’s amendments.

Following on from the previous set of amendments regarding people with a mental health issue, we are now talking about people with a learning disability. It is quite right that this Committee probes and asks questions about particular people for whom we want to ensure that we provide the support. We do not want to be in a position where people are unduly penalised for the wrong reason because someone, in working with them, misses their particular condition or is not particularly sympathetic. I am thus grateful for the opportunity to hopefully provide some words of reassurance to the Committee and to those following our proceedings.

We will set out provisions. There will be a thorough set of provisions in place to protect people with learning disabilities. That will ensure that the claimant understands the requirement of them and it will provide safeguards—if it emerges later that the claimant has misunderstood the requirement. A direction can only be issued as a last resort and must be suitable and achievable for the individual concerned. That is especially important if someone has a learning disability and requires specific support in order to undertake it.

As further reassurance for Members on this point, I have set the safeguards around making sure that the requirements of a person with a learning disability are  appropriate. Jobcentre Plus advisers have a thorough training in dealing with customers with a range of diverse health conditions, including learning disability. Advisers working with employment and support allowance claimants are also provided with specialist advice from Department of Work and Pensions doctors, about the kinds of activities that would be appropriate for a person to undertake through the work-focused, health-related assessment.

Advisers working with employment and support allowance claimants are also provided with specialist advice from Department of Work and Pensions doctors, about the kinds of activities that would be appropriate for a person to undertake through the work-focused, health-related assessment. This assessment is completed as part of the medical assessment process at the start of the ESA claim. Every customer has the right to be accompanied to interviews by a carer or an advocate, to help them interpret and understand the advice and requirements being set out to them. It is also an important point that we would expect personal advisers, when assessing someone, to suggest or ask the individual if they wanted to bring along an advocate, a carer or adviser, if the personal adviser thought that individual would benefit in terms of understanding what was required.

As stated in both clauses 2 and 8, any direction to an activity would have to be reasonable, and must have regard for a person’s circumstances. Therefore, any activity that is directed by the adviser has to be appropriate to their capabilities and the circumstances in which they find themselves. If, for any reason, the claimant was directed into an activity which was felt to be inappropriate, or where they had not understood the requirements fully, the claimant could ask for the direction to be reconsidered. Again, I can anticipate my hon. Friend thinking “well, how would they know that this activity was inappropriate?” I refer back to the previous set of amendments which we discussed and say we are piloting these proposals. It is important that we review them and have regard, particularly, for people with learning disabilities, to make sure that they have the support and understand what we are trying to do to assist them.

All members of the Committee will endorse the sentiment I expressed in earlier remarks—we want to see a transformation. There is a pool of talent among people with learning disabilities who want to get a job, and we want to help them. It is reasonable for us to say that we need people to engage with us in order to make that possible. My hon. Friend will know that if someone is on ESA, then they obviously have had an assessment and support, but there are those people on JSA, where perhaps the learning disability will not be so profound—someone could miss that particular issue. We will keep that under review but we believe there are safeguards built in.

I do not think, as my right hon. Friend the Minister for Employment and Welfare Reform has said, that it is appropriate to have such detail on the face of the Bill. We will—as he has said and I will say—provide that in regulations. I am pleased that my hon. Friend the Member for Sheffield, Heeley has found the document commissioned by my right hon. Friend helpful. Indeed, we hope all Committee members do. We do not want to stipulate support because, as we say, it is about tailoring to individual needs. I hope I can send a very clear signal  about what the Government’s intention is, to help these particular people in finding employment—not having a punitive regime, that actually trips people up, rather than one that assists people to engage with someone. Ultimately, that is what we want. The sanction will be there, but we do not anticipate it being used a great deal. Certainly, from the pilots and the pathways to work programme it was used very infrequently. However, it does provide, in the right circumstances, a carrot-shaped stick in order for some people to engage.

Photo of Meg Munn Meg Munn Labour, Sheffield, Heeley

I thank my hon. Friend for his words. It has been enormously important to get that information on record, so that it is clear what the Government’s intention is in relation to people with learning disabilities. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of James Clappison James Clappison Shadow Spokesperson (Work and Pensions)

I beg to move amendment 12, in clause 2, page 7, line 10, leave out subsection (3).

Proposed new section 2F of the Social Security Administration Act 1992 provides that by direction, the Secretary of State may specify what is and what is not to be regarded as work-related activity in any individual case. Can I say at the outset that we welcome a personalised approach, tailoring directions to the individual concerned? We hasten to add that we need to see what this will mean in practice. That is the important question, as far as we are concerned.

However, subsection (3) of the proposed new section, relating to directions about work-related activity, contains a retrospective power for a direction of this nature—what is and what is not to be regarded as a work-related activity. It is a retrospective power to have effect from a time before the giving of the direction in the case where it varies or revokes a previous direction. I think I am on reasonably firm ground in saying that this is a retrospective power, because the notes on clauses admit that it may be so. Were a retrospective power to be granted, it would be important to pause for a moment.

That is not to say that we are opposing this tooth and nail, or are seeking a Division on it. We would be doing less than our duty of parliamentary scrutiny, though, if we were not to raise the question of a retrospective power, given the general approach toward those powers in the line long of authorities on them, and a possible European dimension on such powers as well.

We do feel that it is important, wherever a retrospective power is granted, to at least ask questions and seek to elicit more information. In this case, what we need to know from the Government is just how this retrospective power would be used. We note that it would be retrospective in an individual case. Under the terms of this power, it would be possible for an individual who had been carrying out what they believed to be work-related activity, to have a later direction made saying that it was not work-related activity after all.

As always in cases of retrospective legislation, there is an individual aspect to it: what individuals knew at the time, what they believed to be the case and subsequent variations, and the question of how fair that is to individuals. I do not want to make too much of that because it is a general point about retrospective legislation. I just feel that we need to give pause for a moment and ask the Government for more information about it.

Photo of Tony McNulty Tony McNulty Minister of State (Employment and Welfare Reform; Minister for London), Department for Work and Pensions

I dislike undue retrospectivity as much as I do undue specificity. I do take the broad thrust of what the hon. Gentleman is saying, but if we are to be, as we declared, as flexible as possible, then we need 2F(3) to sit with 2F(1) and 2F(2). There may be occasions where a person’s circumstances have changed, and the work-related activity they have been directed to undertake cannot be completed—because of the illness of a child, for example, or because the childcare has fallen through. Without the catch-all of proposed new section 2F(3), there could be an interpretation of the law that such a person should be sanctioned regardless. So, this is positive retrospectivity rather than negative. As a norm, the UK legal system would decry retrospectivity in the law.

Another example would be where, because of a change in circumstances, a person has agreed with their adviser to engage in activity that is not exactly the same as they were directed into, but which nevertheless was acceptable to the adviser as a suitable alternative. Again, without proposed new section 2F(3), the person could be penalised. This amendment would prevent a personal adviser issuing a revised direction to fit the acceptable activity already undertaken.

So by definition, and to keep up with potential changes in someone’s circumstances, there has to be that degree of retrospectivity. As the Under-Secretary of State for Work and Pensions, my hon. Friend the Member for Chatham and Aylesford, has already said, we do not want to sanction or punish people unduly, and we will want to use those powers in the Bill for sanctions as sparingly as possible. The process is much more about the help and support we can afford people rather than rushing to sanctions. Notwithstanding the hon. Gentleman’s points about retrospectivity, which I agree with, in this instance it is important to have that catch-all to afford the adviser the degree of flexibility which we all seek.

Sitting suspended for a Division in the House.

On resuming—

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

The Minister was reaching the conclusion of his speech.

Photo of James Clappison James Clappison Shadow Spokesperson (Work and Pensions)

As I hope that I have indicated already, this is a probing amendment and I shall seek the Committee’s leave to withdraw it on the basis that I have drawn some reassurance from the Minister’s entirely appropriate remarks. Having heard the Minister’s two examples, however, I am not entirely convinced by the aim. In the first example, he said that somebody’s ill health might prevent them from carrying out their original direction, but I am not entirely convinced that the aim of doing justice to that person could not be achieved by a simple variation rather than by a revocation—varying the terms of the order, so that the completed part stood but was varied to something more suitable to the person’s current health conditions. I am not sure that variation would not be a better way of dealing with it than revocation, when what was directed  in the first place would no longer count because it would have been revoked. However, I draw reassurance from the Minister’s explanation of the intention—that, as far as the individual claimant is concerned, the provision is intended to be positive. In the light of his helpful remarks about that positivity and its effect on any subsequent interpretation of the provisions, should it come to that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Clappison: I beg to move amendment 13, in clause 2, page 8, line 27, leave out paragraph (a).

Photo of Jimmy Hood Jimmy Hood Labour, Lanark and Hamilton East

With this it will be convenient to discuss amendment 21, in clause 23, page 33, line 11, leave out paragraph (a).

Photo of James Clappison James Clappison Shadow Spokesperson (Work and Pensions)

Again, amendment 13 is a probing amendment, whereby we simply seek clarification of some possible legal issues. The provision concerns contracting out to welfare to work providers and their legal position—where the Secretary of State has contracted out functions to an external provider.

Amendment 21 raises the same issues in relation to contracting out in jobseekers cases. Amendment 13 deals with contracting out of work-related activity matters. Broadly, proposed new section 2G of the Social Security Administration Act 1992 will enable the Secretary of State to authorise providers to carry out functions on his behalf, while proposed new subsections (7) and (8) concern the legal position of the Secretary of State and the provider. Proposed new subsection (7) appears to provide that anything done or omitted to be done by an authorised person is to be treated as being done or omitted to be done by the Secretary of State, so it appears that legal liability for what the provider does will rest with the Secretary of State. However, proposed new subsection (8) provides that that does not apply

“for the purposes of so much of any contract made between the authorised person and the Secretary of State as relates to the exercise of the function”.

We would like some clarification of the provision’s implications. For example, is it the Government’s intention that the Secretary of State can, by contractual terms, exclude himself from liability for the actions or omissions of the provider? Can he thus exclude himself from liability under the civil law? We raise that issue to seek clarification from the Government about what proposed new subsection (8) means. Proposed new subsection (7) says one thing but proposed new subsection (8) appears to cater for an entirely different circumstance and to go in the opposite direction. In case there is any question, this is a probing amendment, however. We seek clarification, we think it right to do so when there may be a legal issue and I wait with interest to hear what the Minister has to say.

Photo of Tony McNulty Tony McNulty Minister of State (Employment and Welfare Reform; Minister for London), Department for Work and Pensions

I understand the confusion. The Committee will know that these laws are written in something approximating English, but not quite English—we have to allow for appropriate distinctions. The hon. Gentleman is right to suggest that proposed new section 2G(7) provides that anything done or omitted to be done by an authorised person, or an employee of that authorised person, is to be treated as if done by the  Secretary of State. It is terribly clumsy, but we still have to afford the Secretary of State the right to sue those who contract out for breach of contract, or any other aspect of contract law. The clumsy way of doing that is to say in subsection (7) that all of what can and should be done is actually the Secretary of State’s duty, and rightly and properly so, save for those contracted out subsequently and passed on to a contractor to do on behalf of the Secretary of State. That is terribly clumsy, but I think the import of them is to have the Secretary of State fully responsible for what are clearly his duties under a raft of previous social security legislation. Where, as in the two instances that the hon. Gentleman has alighted upon, there is a clear contractual obligation on a third party—where duties have been contracted out—there must still be scope for the Secretary of State, notwithstanding what subsection (7) says about his duties, to afford the proper contractual relationship with that other body in what is the normal contracting practice.

It is saying that here is the sum of the Secretary of State’s responsibilities and the Bill makes provision for part of that to be contracted out. We must reinvent and rebuild under contractual law the ability of the Secretary of State and the Government to sue or challenge, at the very least, the outside contractor for those elements that have been contracted out subsequently. Even the explanation is clumsy, which I understand, but the interplay between subsections (7) and (8) is important.

Photo of James Clappison James Clappison Shadow Spokesperson (Work and Pensions)

The Minister is doing a good job of giving an explanation of this. I invite his attention and, perhaps appropriately, his reflection, because it raises legal issues, on another aspect of this. That is the possible liability of the external provider to a claimant where the external provider may have been negligent in discharging his duties to the claimant. Would this serve to exclude the Secretary of State from liability for the same negligence where the external provider had been negligent to the claimant? While the claimant may have an action against the external provider, issues could arise if the external provider, through any circumstances, came to be in a position to be unable to meet any claim that was brought against him by the claimant. In those circumstances, would the claimant have a right of action against the Secretary of State, or does this serve to exclude it?

Photo of Tony McNulty Tony McNulty Minister of State (Employment and Welfare Reform; Minister for London), Department for Work and Pensions

Just to add to the confusion, I am told by this magical process that enlightens Ministers every now and then that the claimant, even in those circumstances, would sue the Secretary of State, who, because of the interplay between subsections (7) and (8), could then go on to sue the provider.

I am grateful that the hon. Gentleman has afforded me time to reflect on these matters, but I think that the original position that I presented of subsections (7) and (8) and their interplay being a clumsy way of making sure that the Secretary of State is still afforded appropriate contractual rights under contract law for those bits that have been contracted out. I believe that the circularity still endures—I will get back to the Committee if that is not the case—the duties lie with the Secretary of State. The circumstances described by the hon. Gentleman would mean, I think, that the individual would sue the Secretary of State and if there was any scope to, not least because of the existence of the part we are referring to, that would afford the Secretary of State the ability to sue the provider.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

The Minister has said several times that this is a clumsy way of achieving this particular outcome. Is there a particular reason why it has been done like this, or is there some elegant way of achieving this that has somehow escaped him?

Photo of Tony McNulty Tony McNulty Minister of State (Employment and Welfare Reform; Minister for London), Department for Work and Pensions

In my limited experience of this place, I have rarely found that English law will go for an elegant route when a clumsy route could take precedence.

Photo of James Clappison James Clappison Shadow Spokesperson (Work and Pensions)

I am grateful to the Minister for his words. I was not trying to engage in any guessing game. My purpose was to raise a reasonable question for further reflection. The Minister has approached the matter in a reasonable way. I invite him to go away and reflect on it further. I am particularly thinking of the position of the claimant and the rights that they may have when they have suffered from negligence. On the basis that the Minister has said that he will reflect on this, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.