Social Security Amendment Bill

Members, we now come to Part 2. Part 2 is the debate on clauses 59 to 71—“Amendments to Social Security Regulations 2018”—and Schedules 3 and 4. The question is that Part 2 stand part.

Thank you so much, Madam Chair. I wanted to start this debate by addressing the provisions in clause 60, particularly subclause (1)(ab). There is language that is reflected in other types of sanctions here, and I am particularly interested in the prescribed minimum amount of time. I think it’s really interesting that in the regulations we’ve only set out a prescribed minimum but not a prescribed maximum.

I want to know whether the Ministry of Social Development (MSD) have any guidelines to ensure that case managers don’t act in a vindictive matter to then set out an unreasonable amount of hours that people are expected to comply with, for example, community work experience. Without those regulations creating a maximum, what is to stop a case manager saying to someone, “I’m expecting you to do 50 hours a week.”, for example? There’s nothing in the regulations that literally sets that out. Yet, we do have a minimum, which seems to me like the Minister for Social Development and Employment has chosen to ensure that beneficiaries are complying with a bare amount of hours, but nothing to protect beneficiaries from case managers who may have not received adequate training, who may want to act in a vindictive matter to set an unreasonable amount of time.

This matters because the Minister has just outlined that one of her priorities is getting more people into employment. If a case manager acts in a vindictive way because of the lack of provisions in the regulations to lay out a maximum number of hours, what is to then, you know, create the conditions where somebody is engaging in community work experience for, say, 40 to 50 hours a week, and then is unable to actually find the time to find work? I guess to me that is really concerning. Like, how will the Minister create safeguards around this? If there’s no safeguards in the legislation, can she at least give us assurance that the staff will be given guidance on the maximum amount of hours?

I also wanted to ask about subclause (2). This is after regulations 163(ab). There’s a line here that talks about training programmes: “employment-related training programmes or courses that MSD considers are suitable, for the non-financial sanction called upskilling;”. I wanted to ask whether MSD had already developed a suitability framework in relation to the language and the regulations that talks about suitability, because we don’t have the language in here more granularly defined. How will MSD ensure that they are assessing the suitability of this in a way that it is accurate, and doesn’t lead to discrepancies between offices across the country? So any guidance on whether MSD had already developed these for staff so that the implementation of the upskilling non-financial sanction does not lead to potential harm—people being placed in courses and programmes that are not suitable.

In the spirit of making sure that I am adding new content, I will move on to clause 61. This is around the community work experience, and I probably will have a range of questions around this because I’m really concerned that in the regulations there’s been a prescribed language around, for example, people having to participate in community work experience for an amount of time, you know, for having to be there in one or more positions. But there is nothing about how participation will be measured and who is responsible for actually, for example, reporting on participation in relation to community work experience. Like, where does the onus lie?

This is concerning because, for example, I can see that MSD could decide that the onus on reporting the participation, laid out in this new section 163B, may fall on the beneficiary. If it falls on the beneficiary, then will the portal be created? Will the beneficiary self-report how many hours they have attended in community work experience? Does this fall on the community organisation? What are the tools that will be given to those community organisations to ensure that they can actually adequately report on the number of hours and days that the beneficiary is participating in community work experience?

Will the onus on counting the amount of hours fall with MSD, and, if so, what are the staffing resources allocations that will be used by MSD to ensure that the number of hours and days that people participate in community work experience are adequately reported and that the beneficiary actually has that information available to them? Will the beneficiary be able to track those number of hours in a portal? How will the beneficiary make sure that they know how they’re tracking and the compliance with the community work experience?

If it is the community organisation that is in charge of tracking compliance, what are the safeguards that the Minister is putting in place to ensure that, for example, you don’t have community organisations that, for example, could say, “I really like this person on the benefit. I kind of don’t really believe that this person should be participating here, but I want to give them a free pass, so I’m just going to let them participate.”—basically, you know, count their participation, but they’re not actually attending.

Will there be anything to ensure that she can actually enforce the community work experience sanction and the organisations that she’s engaging with are actually engaging in good faith? Because we know a lot of these organisations have responded really negatively to this non-financial sanction. Some of them could say “I’m going to opt in”, but then not really follow through with complying with what’s out there. So what will the Minister do to ensure that this works as she’s intending it to? Right now, the regulations that she’s laid out only prescribe the amount of weeks and hours that someone has to participate in, but there’s genuinely nothing here around measuring participation.

Equally, on clause 61A, on new regulations 163C and 163D on “report job search”, I’m equally interested in how participation will be measured. But this is different, right? Like, community work experience participation is somebody literally going into a place—report job search is literally someone saying, “I have applied for this many jobs.” Has MSD developed the tools to ensure that, for example, somebody can report on MyMSD? Will that be verbally? Will that be over the phone? I think this is really important because those regulations are really high level. A lot of it will fall on how that is operationalised, and without giving clarity to people on this, how will we as legislators know that the operationalisation of these regulations is actually going to work at all? We have been given so few details on the job search activity side of things in particular, which is why I’m really interested in knowing whether the ministry has developed any guidelines around this.

Finally for this call—to give the Minister a chance to respond, because otherwise I think we’re not going to get a decent engagement—I wanted to move on to clause 65. These are where we replace regulation 189 with a range of other conditions in which section 334 of the Act specified benefit does not expire under section 332 of the Act.

I particularly wanted to point to (a), where it says that “the beneficiary is a patient in hospital care with the meaning of section 4(1) of the Health and Disability Services (Safety) Act 2001:”. Basically, this means that if somebody is in hospital care, their benefit does not expire. But at the same time, we know that the health system is particularly overburdened, people are being discharged a lot sooner than they should be. The hospital doesn’t have the capacity to adequately care for people, so we could have, for example, somebody being discharged from hospital care and yet still being in really ill health and not receiving the care that they deserve. Yet because they’re not deemed to be within hospital care, their benefit could still expire.

Does she think that actually the wording of “the beneficiary is a patient in hospital care” is adequate or whether language, for example, around “the beneficiary is a patient who is in ill health” or just to kind of broaden the definition so it’s better suited to actually take into account the state of our health system? I think this is important. These are regulations, which means they’re easier to modernise to ensure that they’re fit for purpose for current circumstances.

Also on this one, I also want to touch on section 189(e), which is around kind of giving a broader range of circumstances. For example, the second part of the sentence says “or may be affected by any exceptional circumstances other than those prescribed by paragraphs (c) and (d).” Is there guidance to staff around what counts as “exceptional circumstances”, or are we just leaving it to the discretion of case managers? If the Minister would be able to elucidate on the guidance that she’s aware that is given to staff to ensure that people’s benefits do not expire if they’re facing exceptional circumstances, that would be really valuable.

I think that would also be valuable to have it on the Hansard so that people on the benefit listening to this debate have clarity around how she intends to apply these so-called “exceptional circumstances” under clause 65.

I’ll go through some of the queries that the member raised but I do want to say, as I have answered in the previous part of this debate, the Ministry of Social Development (MSD) is in the process of issuing guidance for their staff, which is very normal after any piece of legislation is introduced and passed in the House. So I’m not going to answer questions around the guidelines again, because that’s MSD’s job to prepare them.

Ricardo Menéndez March: So no guidelines have been developed on anything?

Hon LOUISE UPSTON: I have said they are going to be prepared in time for the bill to be enacted and for the second two—

Ricardo Menéndez March: It’s pretty soon.

Hon LOUISE UPSTON: It is October, so I’m not going to keep repeating myself in this committee. I have huge confidence in the MSD front line and the case managers. They get enormously excited—

Ricardo Menéndez March: Half of their decisions are wrong.

Hon LOUISE UPSTON: —when they see someone who’s on the jobseeker benefit actually get a job.

CHAIRPERSON (Barbara Kuriger): Are we listening to the answers?

Ricardo Menéndez March: I am.

CHAIRPERSON (Barbara Kuriger): Thank you.

Hon LOUISE UPSTON: So in terms of community work experience, it’s stated on page 31, the prescribed number of minimum hours per week is four. That is because, as I said in my answer to a question in the earlier part, people are still expected to be engaging in their obligations to look for and prepare for and apply for jobs. So five hours is a reasonable minimum for someone to participate in community work while they continue their job search.

It’s interesting, the Minister for Social Development and Employment addressed the issue of having a minimum number of hours but completely omitted the reality that she has not set out a maximum number of hours, which means there’s nothing stopping a case manager actually acting in a vindictive way to set out requirements that would actually prevent people from seeking employment.

I also wanted to ask whether, if she’s saying that none of those guidelines have been fully developed and they’re under development—is it her expectation that front-line caseworkers will be able to feed into those guidelines being developed? I ask this because we have heard again from the front lines that—well, we have heard from the Ministry of Social Development (MSD) that the front line is over capacity. Is MSD actually consulting with the front line to ensure that the guidelines reflect the current experiences and capacity that they’re under, and who else is MSD consulting with when it comes to development of these guidelines?

She talked about how some of this won’t come into effect until October, which actually could give MSD ample time to, for example, consult with community organisations or even do a survey of people on the benefit to ensure that these guidelines reflect the experience on the ground. I want to understand the level of resourcing it’s utilising to develop these guidelines and who is actually being consulted, if anyone, in the development of these. I think this is the best opportunity to ask the process that MSD is undertaking in the development of those guidelines. I think people should not be left in the shadows around how these are developed.

I think the reason why asking about the process to develop these guidelines is really important—before becoming an MP, working at Auckland Action Against Poverty, I did an Official Information Act request around, for example, the training modules around MSD’s caseworkers being able to assess whether someone’s in a relationship in the nature of marriage. What we found, for example, at the time is that they were encouraged to prod people with questions about their intimate sex lives, and that was really concerning. People raised concerns about the process that MSD used to investigate people and how staff were enabled to do this, and that triggered a whole response by the Privacy Commissioner, who did a whole inquiry into benefit investigations. So, you know, if the Minister is not giving us robust answers on the processes that are being constructed around these guidelines, I really worry that staff will be left with really poor training modules.

I also wanted to ask whether she expects that MSD staffers will have to at some point re-sit any of the training modules that I’m assuming will be created to ensure that staffers have the tools to implement these non-financial sanctions. We know that the training modules exist, but there is little clarity about how often people are asked to re-sit these training modules to ensure that they just don’t have to do it, for example, at the beginning of their work and then assume that they absorbed all the information and therefore they can apply these non-financial sanctions accurately and as laid out in the legislation. So does she expect that the guidelines developed by MSD will require staffers to constantly be refreshed on these, and, if not, why not?

I wanted to move on to clause 66 now. Here we’re talking about new Regulation 190C, the “Requirements completed in 20 working days starting on expiry date”. I’m going to go to subclause (2), “MSD must regrant the person’s specified benefit if MSD is satisfied that— … (b) on and after that expiry date, and unless exceptional circumstances prevented the person from doing so, the person continued to meet … eligibility criteria for that benefit.” In terms of that, I hear that some guidelines are being developed; is MSD reusing any previous modules or documents to then create these ones as laid out in that very specific regulation?

I will go back to my earlier questions, just to recap: who is being consulted in the development of these guidelines? Will staff be required to sit through training modules more than once to make sure that they are equipped with the tools to apply these sanctions accurately? How does she expect, as a Minister, safeguards to be put in place so that, for example, we don’t end up having community organisations reporting that someone is attending community work experience when they may actually not be doing so? And what are her expectations around how organisations will report on compliance with these non-financial sanctions?

I move, That debate on this question now close.

Ricardo Menéndez March’s amendments to Part 2 of the Minister’s Amendment Paper 263 set out on Amendment Paper 279 are out of order as being inconsistent with a previous decision of the committee.

Ricardo Menéndez March’s amendment to Part 2 of the Minister’s Amendment Paper set out on Amendment Paper 285 is out of order as being inconsistent with a previous decision of the committee.

The question is that the Minister’s amendments to Part 2 set out on Amendment Paper 263 be agreed to.

Ricardo Menéndez March’s amendment to Part 2 set out on Amendment Paper 276 is out of order as being inconsistent with a previous decision of the committee.

The question is that Ricardo Menéndez March’s amendment to Part 2 set out on Amendment Paper 267 be agreed to.

The question is that Ricardo Menéndez March’s amendment to Part 2 set out on Amendment Paper 273 be agreed to.

The question is that Ricardo Menéndez March’s amendment to Part 2 set out on Amendment Paper 274 be agreed to.

The question is that Ricardo Menéndez March’s amendment to Part 2 set out on Amendment Paper 275 be agreed to.

The question is that the Hon Willie Jackson’s tabled amendment to clause 16, new regulation 163A be agreed to.

Ricardo Menéndez March’s amendment to Schedule 2 set out on Amendment Paper 283 is out of order as being inconsistent with a previous decision of the committee.