Community Programme and Unemployment Benefit (Hansard, 3 March 1987)

§ The Parliamentary Under-Secretary of State, Department of Health and Social Security (Baroness Trumpington)
My Lords, with the leave of the House, I should like to repeat a Statement which has been made by my honourable friend in another place. The Statement is as follows:
"With permission, Mr. Speaker, I wish to make a Statement on the benefit position of participants in the Community Programme following a recent decision by the Social Security Commissioners.
"As the House will know, it is a fundamental principle of benefit law that people who work part time and do so regularly are not entitled also to unemployment benefit for those days on which they would not normally work. This principle is not novel and has been applied consistently under successive administrations since 1948. It has not been a source of contention. The point is currently covered in the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1983 and was previously covered by the corresponding regulations made in 1975. It is frequently referred to as the full extent normal, or FEN, rule.
"The Community Programme provides temporary work, normally for people who have been unemployed for 12 months, or six months if under 25, and a substantial proportion of those 543 employed in the programme work part time. Until now the adjudicating authorities have held that the full extent normal rule applies. This approach has hitherto been supported by the Social Security Commissioners and was also endorsed by a Court of Appeal decision in 1985.
"However, in the case of Mr. Brunt a tribunal of commissioners has now decided that participating in the Community Programme on a part-time basis will not normally bring the full extent normal rule into operation. This decision was promulgated last week to the Chief Adjudication Officer, who is of course independent of the Government, and I understand that he proposes to apply for leave to appeal against it.
"The result of the commissioners' decision, if it were sustained upon appeal and applied generally, would be a significant change in current well established and understood benefit procedure. It would also cause a rise in benefit expenditure of around £2 million a week. This expenditure would be directed to people participating voluntarily in a programme from which the overwhelming majority receive earnings significantly higher then any unemployment benefit entitlement. The Government regard this as a quite unacceptable use of resources. We do not believe that CP earnings and unemployment benefit should both be payable. Moreover, the adjudicating authorities will be uncertain of the law pending the conclusion of any appeal proceedings, which could be lengthy. This too is unsatisfactory.
"I am therefore laying regulations today under the urgency procedure to provide that people receiving earnings from the Community Programme are not entitled also to unemployment benefit. These regulations do not affect any supplementary benefit entitlement because that benefit is not affected by the full extent normal rule.
"I would emphasise that these regulations are intended to establish beyond doubt the position that had until now generally been understood and applied. The regulations will take effect immediately."
That, my Lords, concludes the Statement.

§ Baroness Jeger
My Lords, I thank the noble Baroness for repeating the Statement. It is one which I regard as very serious indeed. It seems to call into question the whole status of the commissioners and above all the independent status of the Chief Adjudication Officer. It seems to set aside the appeal procedure which has been embodied in the social security legislation.
I must ask the Minister whether the Statement means that the Government are going to pre-empt any appeal which they fear they might lose by rushing in regulations between the commissioners' decision and the appeal to the Chief Adjudication Officer instead of letting the semi-judicial proceedings go on in the usual way.
Why is the appeal not being allowed to go forward and what is this urgency procedure? Is there any statutory basis for it? Is it a parliamentary procedure 544 or is it a departmental procedure? Can any Minister bring in anything under something called the urgency procedure? These are very serious questions, because they imply changes in the appeal procedures which have been built into the legislation. I must ask whether the real reason is that the noble Lord, Lord Young, is anxious to keep 190,000 people who are on community service off the unemployment list.
The appeal made with the help of his union by Mr. Brunt refers to this man who works two-and-a-half days a week on a community service programme and to the very many others in that position. It seems that some hope was given to them by the decision of the Social Security Commissioners to whom they have a right to look when they have a grievance. I must ask the noble Baroness the Minister to try to make a little clearer the reason for this interruption of the normal course of appeal and to explain to the House something about the urgency procedure.

§ Baroness Seear
My Lords, I should also like to thank the noble Baroness for repeating the Statement, but to say that like the noble Baroness, Lady Jeger, we are deeply concerned that the Government should immediately leap in to override a decision of a commissioner. The decision of a commissioner should surely be regarded as an independent judgment made by the commissioner, and we are moving into a very dangerous situation indeed in which either legal or quasi-legal procedures in this country can be overruled by the executive, with very little time intervening between the decision of the commissioner and the Government's action. It is a well-established principle in this country that judicial or quasi-judicial decisions are independent of government, and if they are not independent of government they lose a very great deal of their benefit.
But apart from that, there is surely a great deal to be said for the decision given by the commissioner. People on the community programme are not on that programme because they wish to be part-time. They would welcome being full-time, but they are not able to be full-time because of the financial limits imposed on the amount that can be paid to any one person during the course of the community programme. They are forced onto a part-time basis because of these financial provisions; not from any wish of their own.
If they were working full-time—as they would wish to be, in a great many cases, if they were not prevented from so doing—they would be in the position in which a very large number of full-time employees have been who have been put onto short time and who, by a long established pattern which both employers and the trade unions have supported, have worked their short-time on such a basis that they have been eligible for unemployment pay. Therefore, if it is possible to do this when you are a full-time employee, why should you not be allowed to do it when you are wishing to be a full-time employee but are forced into being a part-time employee because of government requirements?
Further, it seems that this would provide an extremely good opportunity to get more people onto the community programme. If people who are on the community programme and working, say, two days a 545 week were also able to draw unemployment pay, then more people could be brought onto the programme, more people would get experience of working and more people would get an opportunity, because of their experience of working on the community programme, to get back into full-time employment. This would meet a variety of objectives, not least the objective of the noble Lord the Secretary of State to get the unemployment figures down by getting more people back into full-time employment.

§ Baroness Trumpington
My Lords, this scheme aims to improve the long-term employment prospects of the participants and to provide something of direct and tangible benefit to the community. Some 300,000 people participate in the programme in a full year and the average stay on the programme is nine months. Of former participants, 30 per cent. go straight into work or training and 54 per cent. go into a job within 10 months after leaving the community programme. So this is a really worthwhile programme which we are most anxious to promote.
There is no question at all of calling into question the independent status of commissioners and of the chief adjudication officer. As I explained originally, the tribunal's decision has reversed the line taken previously by commissioners and the legal position is confused. We wish to clarify our policy as quickly as possible because of the substantial number of claimants involved and because of the financial implications of the tribunal's decision.
Section 61(1)(a) of the Social Security Act 1986 allows for regulations to be made without reference to SSAC where there are reasons for urgency as in the present situation. The regulations will now be referred to the committee in accordance with Section 61(2) of theAct, unless the committee agree that they need not be formally referred. We are making the regulations today to restore the position to what it was before the tribunal announced their decision. There will therefore be no significant change in the number of benefit claimants in the future.
At the start of the CP scheme, we intended and expected that claimants who started a part-time job which was expected to last for 12 months would be precluded from receiving unemployment benefit for the days when they did not work by virtue of the operation of the FEN rule. These people were regarded as normally working part-time, and were in fact doing so. A number of Social Security Commissioners' decisions have been given over the past four years which have borne this out. It is only the recent tribunal's decision which takes a different line and has caused us to introduce regulations to make our position quite clear.
The noble Baroness, Lady Jeger, asked: what is the urgency procedure? I think I have fully answered that point. As regards the extra figures which the noble Baroness, Lady Jeger, mentioned, what she said is not at all the case. One cannot say how many would stand to gain unemployment benefit if we lost the appeal because some who are on the programme would not be entitled; for example, if they are on it full-time or if their title to unemployment benefit is extinguished. The real point is that the full extent normal rule has 546 existed for many years and we are doing no more than reaffirming existing principles. As I said, we are making the regulations today and there will be no significant change in the number of benefit claimants in the future.

§ Baroness Seear
My Lords, how can the noble Baroness say that the Government are not interfering with the commissioners if in the next breath she says that they are laying regulations tonight, tomorrow or whenever it is in order to do precisely that?

§ Baroness Trumpington
My Lords, I also explained that there is a need to do so in order to clarify the position as we see it, and indeed as the Appeal Court saw it. This is a most unusual decision that has taken place in view of the fact that the tribunals have agreed with the ruling up until the present.

§ Baroness Jeger
My Lords, I apologise for asking one last small question. Did the Minister say that the regulations would be referred to the Social Security Advisory Committee? As the regulations are taking effect immediately. I do not see what value their advice will be.

§ Baroness Trumpington
My Lords, the noble Baroness will know the urgency procedure. I understand that the usual pattern of events is that they are referred to the committee in accordance with Section 61(2) of the Act unless the committee agree that they need not be formally referred. But the committee have the opportunity to present their views if they so wish.

§ Lord Kilmarnock
My Lords, may I ask the noble Baroness whether the adjudication officer will still seek leave to appeal once the Government have already overturned the decision of the commissioners?.

§ Baroness Trumpington
My Lords, I said that the adjudication officer is not a government officer and he has the right to decide whether or not to appeal.

§ Lord Kilmarnock
My Lords, would it not be better to wait for the result of that appeal?

§ Baroness Trumpington
No, my Lords.