Jobseekers (Back to Work Schemes) Bill

Baroness Lister of Burtersett Excerpts

Monday 25th March 2013 Lords Chamber

[Lord McKenzie of Luton]

My Lords, in moving Amendment 4 I will speak also to Amendments 5A and 6. I look forward to hearing from my noble friend Lady Lister on Amendment 5 and what appears to be a very worthy extension of the scope of the promised review and report, which we can also support. Amendment 4 relates generally to the criteria for Clause 2, and Amendment 5A has been tabled with the strong support of the shadow Secretary of State following press revelations of the existence of sanctions targets and league tables operating in London. It insists that the review specifically report on this matter.

Clause 2 brings some redemption to what is otherwise a deeply unsatisfactory Bill. The clause exists because of the perseverance of my right honourable friends Stephen Timms and Liam Byrne in another place and gives us the hope that at least something positive may yet come from this débâcle. The clause requires the appointment of an independent person to prepare a report on the operations relating to the imposition of penalties. The sanctions which are in scope for the review are those imposed for failures in the period from June 2011, when the defective regulations were first introduced, until February 2013, when the Court of Appeal judgment was delivered. We are told that the sanctions involved amount to around 25% of all JSA sanctions, which is clearly a minority of such sanctions. For those both delivered and withheld, covering the ESE and MWA programme, this amounts to in excess of 300,000 sanctions, mostly relating to those assigned to the Work Programme. The huge growth in the number of sanctions and the amounts involved—on average some £600 for ESE sanctions and £800 for MWA sanctions—are real causes for concern. There are suggestions that the growth of sanctions is a significant cause of the proliferation of food banks.

Recent revelations about targets and league tables are deeply worrying and reinforce concerns that the sanctions regime is being used to control benefit expenditure rather than for its proper purpose of supporting conditionality and changing behaviour. Ministerial denials will cut no ice until these matters have been fully and speedily investigated. We would be appalled if the reports of the suggested behaviour were true, as they would demonstrate not only that a climate of fear is being created within jobcentres but that staff are being actively encouraged to refer customers for sanction, especially to fine customers that they can claim are not fully available for work if they make mention of looking after a grandparent or having informal arrangements sharing custody of children. Jobcentre Plus is supposed to support vulnerable people, not try to trip them up on technicalities.

The review should also cover what management statistics are routinely kept and what use these are put to. At what point of it all are statistics around appeals on reconsiderations subject to any comparison, either intra a Jobcentre Plus area or between areas? Are the data broken down into individual decision-makers and matched against appeal performance? Do these form part of any discussion at appraisal time for individuals? Noble Lords will recognise that it is not even necessary to have formal targets to create a culture where these issues are seen to matter.

At Second Reading the Minister said:

“I have heard today concern from Peers about how DWP issues sanctions to JSA claimants more generally. I would like to make it clear that the department will discuss with the Opposition the terms of reference of the sanctions review”.—[Official Report, 21/3/13; col. 756.]

This is to be welcomed. Can we take it from this that the review need not be limited just to those sanctions identified above? Of course, a discussion with the Opposition does not necessarily mean agreement, which is why we have particularised, in Amendment 4, specific questions posed by the right honourable Stephen Timms in another place. We have added to the list the important matter which my noble friend Lady Lister spoke to at Second Reading concerning the public sector equality duty. I am sure that my noble friend will pick up that issue shortly and expand on her telling intervention that the Government know that they are treading on thin ice on this matter. It is too late for this legislation to be able to benefit from the scrutiny of the JCHR, which makes it imperative that it is covered by the review.

The items included on the list are for the most part self-explanatory and have been discussed numerous times before. However, now is the time to have an independent assessment of what is actually happening in practice. These include how penalties are being applied to those with a mental health condition, or rather fluctuating health conditions, which has been a longstanding concern under this Government and, to be fair, under the previous one as well. As we need to know how in practice the sanction and hardship provisions are really affecting people’s ability to survive, it is important that the review and report are thorough and that sufficient time is available to do the job effectively. However, this should not preclude an interim report, which is what Amendment 6 suggests.

This is fast-track legislation which we now have very limited time to consider further. The independent review was an important consideration for us in our approach to this Bill and we need to nail this down as tightly as possible tonight. Paragraphs (a) to (l) of the amendment must be deliverable, and if the Government are approaching this in a spirit of co-operation it really should not present them with a problem. Will the Minister commit now to these being included in the terms of reference for the review?

Above all, however, we need to be certain that we get to the bottom of the alleged existence of targets and league tables, which is why Amendment 5A is essential. If the Government are committed to their mantra of low targets, they should have common cause with us in accepting this. If they want to tidy the wording for Report, then so be it. I beg to move.

[Baroness Lister of Burtersett]

My Lords, I rise to speak to Amendment 5 as well as in support of Amendment 4, moved by my noble friend Lord McKenzie of Luton. Amendment 5 complements and amplifies Amendment 4. The point behind it is that the sanctions in scope of the review established in Clause 2 of the Bill represent approximately only a quarter of all JSA sanctions imposed over the relevant period.

If we are to understand how the sanctions regime is working, the review needs to set the narrower group of sanctions in the scope of the Bill into the wider context of the operation of sanctions more generally. I have tried to make sense of the sanctions statistics, and it seems that there has been a massive increase since March 2010 in the number of fixed-length sanctions applied in relation to work-related programmes, and a smaller increase in other varied-length sanctions, albeit in both cases with some month-to-month fluctuations.

The review needs to help us understand what lies behind these statistics in the round. The sense that I am getting from voluntary organisations working in the field is that there is a growing concern about the general operation of sanctions. I am particularly grateful to CPAG and SPAN for the information they have sent me at very short notice.

I do not propose to pursue the question of whether or not jobcentre staff are being set sanction targets. My noble friend Lord McKenzie of Luton has already addressed that point admirably. However, I want to say something about the wider culture that is giving rise to such claims. It has been brought to my attention that some jobcentres are pursuing a practice of “botherability”, which includes bringing in claimants at weekends. CPAG sent me the example of a client of the CAB in the north of England.

The client is a lone parent with two children aged eight and six. The eight year-old has reduced hearing and gets low-care DLA. The client is claiming JSA, housing benefit and council tax benefit. She received a letter at the start of March 2013 calling her into the jobcentre for a compliance meeting a few days later, at 9.30 am on a Sunday, which was Mother’s Day. She asked for a different date but was told that her benefit could be sanctioned. She decided to go to the interview as she could not afford not to, but her two little girls were very disappointed as they were planning a treat for her on Mother’s Day morning. She has been on JSA for six months and says that she has jumped through all the hoops. Last week she said that she had applied for 22 jobs. She does not understand what she has done or not done that has necessitated a compliance interview, especially on Mother’s Day. She says she is pretty disgusted with the way that claimants are treated—can your Lordships blame her? I would be grateful for the Minister’s comments on such practices. Is he aware of them? Does he condone them?

It seems to me that whether or not formal targets are operating, such practices are indicative of an oppressive culture that is aimed at punishing claimants rather than helping them to find work. The point has been made to me that in assessing the overall impact of sanctions we need to be looking at those cases not just where sanctions have been applied but where they have been threatened, sometimes inappropriately; in other words, when claimants have been led to believe that failing to do something is a sanctionable offence when it is not.

I wish to focus on the paragraphs of Amendment 4 that deal with mental health conditions, the effectiveness of hardship provisions and the application of the public sector equality duty. Mind has argued that the incentive structure represented by conditionality and sanctions in back-to-work support for people with mental health problems is a misplaced and counterproductive response to the barriers they face. It cites recent DWP research which found that some staff believe that conditionality and sanctions are not useful or appropriate for some groups of participants, including people with disabilities or addiction problems, and some staff acknowledge that the stress that can be caused can be counterproductive in terms of claimant engagement, which also has implications for paragraph (k), which concerns,

“the effectiveness of sanctions in changing claimant behaviour”.

Mind cites a number of service users who have been in contact. I will take just two examples. The first is:

“I got a nasty letter which said my benefit was at risk because I didn’t attend an appointment and I had to give a really good explanation within a week or my benefit would be cut. It quoted all these regulations I broke. I freaked out because I couldn’t understand what I hadn’t done … It turns out there was a mistake”.

Another example is:

“I was made very anxious and sleepless by what I perceived as threatening letters and terms from Jobcentre Plus and A4e. I became depressed because I could see that my hopes to return to work were being made unrealisable by this route”.

Let us put ourselves in the shoes of these people and imagine how stressful it must be for anyone, never mind someone with a mental health problem, to be treated in that way. Further examples can be found in evidence submitted by Citizens Advice Cymru to the ongoing Welsh Affairs Committee inquiry into the Work Programme. A number of them are where there was failure to take account of mental health problems as good cause for non-compliance—an issue to which we will return when debating Amendment 7.

A 20 year-old female sought advice from a CAB in south Wales. She had missed four appointments and was sanctioned. She suffers from periodic depression and memory problems and relies on her social services support worker to remind her of appointments. On these occasions, the support worker failed to do so. She could not apply for a crisis loan as she had been sanctioned, and she has no money at all. She is also worried that she will lose her accommodation.

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[Baroness Royall of Blaisdon]

My Lords, if I might intervene, there are several noble Lords in the Chamber who from a sedentary position keep saying that this is ridiculous. The only ridiculous part of the debate this evening is the fact that we are debating such a serious issue at 12.20 am, and we should be allowed to hear my noble friend in peace.

[Baroness Lister of Burtersett]

I thank my noble friend, particularly as I am quoting from a lone mother who is very upset. She says:

“The sanction is over a missed Thursday 9am appointment. My next appointment is 3pm on a Monday. My advisor is well aware that my son is at school for 8.50 am, it takes 25 minutes to get to WP, I collect my son at 3.15 pm yet I’m expected to attend at 3pm for 30 mins. So I’ll be taking him out of school at 2.30pm. I want to help him do well at school, attendance is a high priority of mine”.

Here we have the threat of sanctions demoralising a lone mother who is trying to do the right thing by her son. How making her feel useless and overwhelmed is going to help her in her jobseeking is a mystery to me.

As I have said, I have not been able to do full justice to the briefing that SPAN sent me. I therefore suggest that it be invited to submit evidence to the review established under Clause 2. Indeed, what provision will be made to enable outside organisations with experience of what is happening on the ground to feed evidence into the review?

Of course, the public sector equality duty is not just about lone parents. An international review of the evidence about the operation of sanctions within conditional benefit systems, conducted for the Joseph Rowntree Foundation a couple of years or so ago, warned that evidence suggests that the administration of sanctions is not rational and equitable. The studies conducted in the US have identified racial bias in the imposition of sanctions.

At Second Reading the Minister emphasised that,

“we are trying to design a much more flexible welfare system in which we individualise responses”.—[Official Report, 21/3/13; col. 753.]

It is difficult to quarrel with flexibility and individualisation, but the downside is that they leave greater scope for discrimination, in the negative sense of the term, and they can undermine rights. It is therefore all the more important that the sanctions review allows us to judge whether the administration of sanctions is indeed rational, equitable and consistent with the public sector equality duty.

The Government’s willingness to discuss the terms of reference of the sanctions review with the Opposition is, of course, welcome. I hope therefore that the Minister will accept Amendments 4 and 5, in the interests of ensuring that the review is as thorough and informative as it needs to be, and that the Government will express a willingness to take evidence from organisations on the ground.

[Lord Kirkwood of Kirkhope]

My Lords, as far as I am concerned this is an important debate on an important amendment and, indeed, it is an important suggestion that we should have a review of the sanctions regime. Most colleagues already know this, but I am a non-executive, non-remunerated director of the Wise Group, an intermediate labour market provider in Glasgow that is subcontracted to the Work Programme, so I have had experience of some of these matters. There are difficulties that need to be ironed out and I hope that this review will take the opportunity to do just that.

I strongly urge my noble friend on the Front Bench to pay careful attention to what is being said, although I think that the amendment is a little ad longam to put in a Bill. I am with the noble Lord, Lord McKenzie, in spirit, but I am not sure that the amendment is necessary. I think that we get the point that he is trying to make—I certainly do.

To the need for a review in this amendment I would add the question of the costs, which have been calculated as a maximum of £130 million. At the risk of being pedantic at this time of night—and I apologise to the House—I refer the Minister to page 6 of the impact assessment and Annexe A on the methodology of the calculation. Paragraph 18 describes the total value of the money allegedly at stake in this Bill. Frankly, I cannot understand it, but that may just be the hour of the morning. It states that the total value equals the number of sanctions multiplied by the number of weeks, although, in passing, I have to say that sanctions are variable in weeks—they are not all fixed-week sanctions, so I do not know quite how you can multiply by a number of weeks when they vary. That is multiplied by the percentage of cases of under-25s multiplied by the rate for under-25s and the percentage of cases of over-25s multiplied by the rate for over-25s. However, the final clause puzzles me, because that total value is,

“multiplied by reduction due to successful appeals and hardship”.

You have a multiplier multiplied by a reduction. Either my arithmetic is not good, which it is not, or the language in that paragraph is wrong. If the language in that paragraph is wrong, I would like to be told, because that is what we are being invited to consider as the potential cost to the taxpayer as a result of these changes. If the impact assessment has not got the methodology of the calculation correct, it would be good to know.

My other point is about recompliance. My experience in the Wise Group is that although many of these sanctions are originally set at, say, 26 weeks, the participant in the programme gets the message that they are going to lose out rather quickly and they come back into compliance. They are therefore reduced from a 26-week penalty to a four-week penalty as a matter of course. I do not know to what extent that is factored into the calculation of the total value. There are a number of methodological problems that I do not understand. One of the things that this report should do—I am not suggesting for a moment that we need answers to all these things this evening—is to look carefully at exactly what the total amount at stake in this Bill is. We look forward to getting that confirmed one way or the other.

Briefly, my view is that the Work Programme was introduced with indecent haste. The flexible New Deal programme was in the middle of its operation and in 2010, in a very short space of time, everything was changed. I understand the need to take away everything that went before, but everyone I now talk to tells me that the loss of corporate knowledge is a difficulty in working with the department. A lot of serious and expert people are no longer in the positions that they had. Bringing this programme in so early and losing such a lot of corporate knowledge over a short space of time is bound to lead to symptoms and consequences of this kind.

Part of the problem generated by these sanctions is that the notices that are given to participants in these programmes are often handled not by prime contractors but by subcontractors. I do not believe that some of them are authorised by the Secretary of State as they should be under the Jobseekers Act 1995, which is part of the reason why some of these notices are not detailed and informative. Therefore, it does not surprise me that the court took the view that it did. That is something that this review should be looking at as well.

Finally, one thing that I am clear about from my Wise Group experience is that a lot of participants in these courses do not appeal against sanctions because they cannot do without the benefit for the duration of the pending appeal—it is a serious loss of money to them. I hope that this will be investigated in the review, but we really need to look at whether the sanctions are being properly scrutinised in terms of the numbers who go to appeal. I think that people just throw in their hand because they cannot afford to do anything else.

In conclusion, there is a lot of important work to be done. I hope that the review will be serious in undertaking that work and making the results and conclusions available to the rest of us so that we can get this sanctions regime better adjusted for future use in the jobseeker’s allowance regime.

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[Lord Freud]

My Lords, I do not have the information on Sundays, particularly Easter Sunday. The underlying issue is compliance checks using different days for attending the jobcentre, which are an important element of Jobcentre Plus’s toolkit to combat benefit fraud and confirm conditions of entitlement to benefit. That can include asking claimants to attend a jobcentre on a day other than their normal signing day. That is not something that is different under this Government.

[Baroness Lister of Burtersett]

I am sorry to intervene, but does the Minister think it is reasonable to ask a mother to come in on Mothering Sunday?

[Lord Freud]

My Lords, clearly, I cannot talk about examples when I am not familiar with the particular example. It may have been a strategy. As I said, there is a general strategy to prevent non-compliance by using the device of asking people to come in on different days. Sometimes people are asked to come in on every day of the week. The example I am thinking of is the five workings days, but I have seen examples of that. I saw that example under the previous Government to be honest. I do not know why noble Lords opposite are looking aghast as this was absolutely standard procedure under the previous Government and nothing has changed. It was standard procedure and has been maintained because it works in areas where we are concerned about benefit fraud.

On Amendment 4, it is worth noting that for sanctions more broadly much of the information that the noble Lord, Lord McKenzie, sets out in his amendment is already published by the department. For example, we have published, and will publish every six months, tables setting out the number of sanctions issued and the number of reconsiderations and appeals. The latest figures published for employment, skills and enterprise schemes and mandatory work activity show that up to October 2012 around 170,000 sanctions were issued. There were just over 50,000 reconsiderations, with claimants being successful in just over half of them. Following this there were about 5,000 appeals to the First-tier Tribunal, with claimants being successful in around a quarter of them. I hope that gives enough reassurance to the noble Lord and the noble Baroness that the independent review will be comprehensive and in the spirit of Clause 2. I therefore urge them to reconsider the position and not press their amendments.

The noble Baroness, Lady Lister, raised a point on hardship and the new hardship regime. The new hardship regime will not apply to these jobseeker allowance claimants. It will come into effect only when universal credit is in place. The lone parent’s caring responsibilities are taken into account when setting work search requirements. In the example used by the noble Baroness, they can be used in citing a good reason for non-compliance.

I turn now to the linked Amendment 6, the purpose of which is to ensure that there is an interim report on the operation of the provisions relating to the imposition of a penalty, as well as the report after 12 months that the Bill already requires. I am as keen as the noble Lord, Lord McKenzie, that the review is expedited and we will endeavour to complete it as quickly as possible. However, it may help if I set out why an interim report would be unhelpful in providing a complete picture. A claimant who has a sanction imposed on them has 13 months to bring an appeal against that sanction, so by imposing a six-month deadline for an interim report we would miss those appeals made at a later point. That could then give a misleading view of the overall picture in a way that could be unhelpful. As I said earlier, we are committed to producing a report as soon as is reasonably practicable and it would be far better to wait for the full annual report. I hope that the noble Lord will reconsider the position and not press that amendment.