MR. T. KIRK (ATTENDANCE ALLOWANCE) (Hansard, 15 December 1972)

§ Mr. John Wilkinson (Bradford, West)
I am grateful for this opportunity to raise the subject of my constituent, Mr. Thomas Kirk's, constant attendance allowance. This debate is the culmination of prolonged efforts through the normal procedures to secure for my constituent and his wife the allowance which I am sure they deserve.
As you know, Mr. Speaker, I have been applying week after week since the beginning of this Session to obtain this debate and at last, as Christmas approaches, persistence and patience have had their reward. I hope that my hon. Friend will bear in mind that the most appropriate gesture he could make at this season of generosity and good will would be to undertake personally to review this whole sad case which has been bedevilled by an over-rigid application of the regulations which govern the implementation of the constant attendance allowance. The legislation to enact the constant attendance allowance is laudable. It is just some of the implementation to which I wish to draw my hon. Friend's attention today.
I do not think it can be repeated often enough that the legislation constitutes one of the most praiseworthy pioneering acts of social welfare provision of our time. Contained in the National Insurance (Old Persons' and Widows' Pensions 879 and Attendance Allowance) Act 1970, it was part of the first piece of legislation introduced by the Conservative Government in that year. It fully matched up to the Prime Minister's party conference commitment of 1969 that our nation shall be judged by what it can do for the weak as much as by the opportunities it can give to the vigorous. We as a nation must be judged by our treatment of the elderly and by our attitude to the disabled…". The extra provision for the chronically sick and disabled through the invalidity allowance and in particular the provision of tax-free constant attendance allowance are part of the all too unsung "silent revolution" in social welfare which has constituted one of the first priorities of the Government.
The intention of the legislation was admirable and imaginative and my hon. Friend and his Yorkshire ministerial colleagues from Leeds, North-East (Sir K. Joseph) and Barkston Ash (Mr. Alison) deserve every credit, as do the staff of the Attendance Allowance Board who do their best to implement the provisions but, ultimately, the practical effectiveness of the constant attendance allowance in bringing assistance where need is greatest depends on the judgment of medical practitioners and on the Attendance Allowance Board.
It is here that discrepancies occur and dissimilar decision for comparable cases are made, and as things stand individuals can be driven to the ultimate recourse of publicity or even parliamentary debate if an appeal is turned down because, according to the provisions, they can appeal only if their medical condition deteriorates and I understand that publicity and all that goes with a parliamentary debate can, in some circumstances, in itself be painful for a very sick and disabled person. However, I feel that the debate today is necessary to ensure that the compassionate intention of the Act is applied and to ensure that regulations which are bound to be tightly drawn and strictly enforced are not so rigorously enforced as to be incomprehensible to ordinary people.
Mr. Thomas Kirk, now aged 70, has a history of prolonged sickness going back almost 20 years. He was first admitted to hospital in 1953 for a burst ulcer, a condition which has affected him 880 ever since. In 1955 he had three-quarters of his stomach removed, and in 1957 he had a colostomy operation. When he returned after four months off work he could take up only part-time employment. This he did for five years, until 1962, when he underwent a complicated appendix operation. There was then removed from his stomach a tube which had been left behind from the previous surgery. Just as he was about to return home, the wound reopened, and he had to have a further 18 inches of intestinal tract removed.
Mr. Kirk is registered disabled. He has experienced a pitiful loss of weight of over three stones, down to 6 stone 6 lbs when he was registered disabled. I have here a form which says that this was owing to his incapacity in hospital in the period from 12th January 1965 to 28th January 1967. In 1968 his condition deteriorated dramatically. He suffered from serious mal-absorption of his food, and underwent deep X-ray treatment in hospital. When he emerged he weighed a mere 5 stone 9 lbs. He has been bedridden ever since.
The treatment he received at the Bradford Royal Infirmary was invaluable, but he was totally incontinent when he went home. It has only been through the careful nursing of his 72-year old wife that this condition has been improved. He is totally dependent on his wife for most of his bodily functions. He cannot get out of bed alone to go to the commode, or walk unaided. Although a nurse calls to change his catheter tube, his wife has to ensure that it does not get blocked and that he has regular drinks of tea, as he needs the maintenance of a regular fluid intake to ensure the proper functioning of the catheter tube.
Weak tea and a regular diet of light snacks are essential to Mr. Kirk if he is to avoid serious stomach pains, from which he has suffered since his ulcer illness. As a result, Mrs. Kirk is awakened every night at half-past three, when she has to get up to provide him with a snack. At other times throughout the night she had to get up because Mr. Kirk suffers seriously from the cold and shivers so severely that he is incapable of sleeping. Sometimes Mrs. Kirk has to get up because her husband can be plagued with diarrhoea suddenly and unexpectedly.
881 When Mr. Kirk's application for attendance allowance was turned down I was amazed. I could hardly imagine a more classic case for the fulfilment of the Department's criteria. The family doctor's report, on which the first application was based, was, to my mind, sketchy and unsympathetic. I was struck when the appeal was lodged last spring by how markedly different was the assessment of the board's independent medical practitioner. It is interesting to compare the medical reports submitted by the independent doctor on official form DS4R with those of the family doctor on form DS4. In section 4(a) of the family doctor's form it is stated that there are only three areas in which Mr. Kirk cannot help himself, but the case put by the board's medical practitioner is quite different. For example, the family doctor suggests that Mr. Kirk can walk alone with help, but the board's doctor says quite clearly that he cannot walk owing to his feebleness. The independent doctor says that he cannot use stairs at all, whereas the family doctor says that he can do so only with help. On dressing and undressing, the independent doctor makes it clear that Mr. Kirk—I know this to be the case—does not even dress, whereas the family doctor says that he can dress only with help.
On the question of bathing, which is a very important aspect of care that must be borne in mind, the independent medical practitioner states quite clearly that Mr. Kirk cannot bathe himself. On eating, the independent doctor—I know this to be right—states that Mr. Kirk's left hand is inoperative and he can use only his right hand. On going to the toilet—this is a very important aspect, particularly in the night—the independent doctor says that Mr. Kirk cannot do so; he uses the commode in the bedroom. Of course, he has to be helped throughout the whole procedure.
I will not weary the House by going on at length, but I ask my hon. Friend, in the course of any review which he may be able to offer, to institute a thorough examination of these two reports, because the independent report is so markedly more sympathetic. In fact, when the independent medical practitioner was leaving the Kirk's house at 13 Atherstone Road, he said to Mrs. Kirk that he could see no possible reason why the appeal should not be upheld.
882 I also feel that Mrs. Kirk had insufficient help in submitting her original application. This could be another reason why the attendance allowance was turned down. However, when she appealed on 2nd March she did so in much greater detail. This could be because I insisted that her appeal was made through the Social Services Department of Bradford Corporation, and she and her husband have now had the assistance of a social worker for a long time.
I think that everybody who had anything to do with Mr. Kirk's case regarded it as a foregone conclusion that he would be granted the full allowance. When it was refused, every possible effort was made to ensure that justice was done.
I wrote to the Attendance Allowance Board in support on 12th April 1972: I have known Mr. Kirk for many months. He is bedridden and totally incapable of helping himself in almost any way and depends entirely on his wife. His original application was inexplicably turned down and the Bradford Social Services Department as well as myself are keen that this state of affairs should be rectified as soon as possible. In support of the appeal we also had a report from Mr. Nix, the principal social worker, Area 4, which is the Western Division of the Bradford Social Services Department. I will not read verbatim from the report, but he says that it is almost certain that Mr. Kirk would have to go into residential care if he had not the support of his wife.
I ask my hon. Friend to give Mr. and Mrs. Kirk the gift of hope this Christmas by promising a personal review of this case. I know that the Jimmy Martin case which was mentioned in this House on 21st March 1972 raises the different category of the congenitally handicapped who are a category like the seriously disabled housewife whose needs my hon. Friend might like to examine. But perhaps more relevant, the Martin case, which was reported upon in The Guardian only today, provides hope to many others, perhaps like the Kirks, that their cases may be subject to review.
We all applaud the twofold improvement in the constant attendance allowance by Her Majesty's Government in raising the rate to £5.40 tax-free and the extension, to be implemented from June 1973, of the provision of the two-thirds 883 benefit rate to those who require asistance for 12 hours in the 24 and not all round the clock. However, those of working age will be taken first and those in Mr. Kirk's category—namely, people born between 1898 and 1907—will receive payment almost last.
Pensioners like Mr. Kirk constitute a special responsibility. It is true that his rent has gone down since the implementation of the Housing Finance Act. But, between them, the Kirks have only £14.46, including supplementary pension, to live on while meeting the extra expenses of special diet, heating and laundry. Mr. Kirk's daughter was widowed young. She has had three children to bring up alone. In days gone by Mr. Kirk's wife could take work home as a burler and mender, but she is now 72 years of age and this is not practicable. The nursing and constant care of her husband is a round-the-clock job.
As Mr. Kirk may eventually have to go into domiciliary care if the strain on Mrs. Kirk is not relieved, I ask that a thorough review of the case be instituted, which, as I have said, would be the best possible Christmas present my hon. Friend the Under-Secretary of State could give them.

§ The Under-Secretary of State for Health and Social Security (Mr. Paul Dean)
I should like to extend my sympathy to Mr. and Mrs. Kirk in their great difficulties. I am sure that they take some comfort from the personal interest which my hon. Friend the Member for Bradford, West (Mr. Wilkinson) is taking in their problems. They are one of many families throughout the country giving devoted care to a disabled member at home, and it was because we recognised both the strain and the expense involved that we introduced the attendance allowance.
I am grateful to my hon. Friend for the tribute which he paid to the Chairman of the Attendance Allowance Board, its members, staff and those who help them, both medical and lay, throughout the country. They have had no easy task. At times they are subject to criticism, because it is always the hard cases which hit the headlines. However, they have done a remarkable job in 884 getting the complicated new allowance off the ground so quickly.
We recognise in this country that we have not done enough in the past to help the disabled. We are now making up for the slow start by pushing ahead with new benefits as fast as possible. The attendance allowance is one of the best examples. It started in December 1971 and over 80,000 people are now getting it. We deliberately started with those most in need, namely, people requiring a good deal of care both day and night. There have been some heartbreaking cases outside this stringent definition, but that is the price which we have had to pay for getting to the worst cases first.
That is perhaps the answer to what my hon. Friend said about over-rigid administration. I am not saying that mistakes have not been made or that there are not lessons to be learned. Of course there are with a new allowance of this kind. Nevertheless, the excluded cases have increased our resolve to press ahead with the extension of the allowance with all possible speed.
We appreciated from the beginning that the allowance would not meet the needs of all severely disabled people in the community. We have always regarded it as only a start. As my right hon. Friend the Secretary of State has said, stage two is now under way. A new lower rate allowance for those who require a lot of help by day or by night was included in the National Insurance Act 1972. Stage two will involve much larger numbers, with probably 500,000 claims or more. Each claim needs individual and sympathetic attention and therefore takes time. We have adopted the recommendation of the Attendance Allowance Board that there should be phasing and that it should be done by age groups, which is the only practical way of proceeding.
To summarise the position so far and as projected, before December 1971 there was on attendance allowance and therefore no money was being paid. Now over 80,000 people receive the allowance and the amount being paid per year is £22 million. We expect that two years from now a further 250,000 people will be getting it and that the expenditure will be up to £70 million a year.
885 The extension and the allowance include a number of disabled housewives and people disabled from birth or youth, and many more will be included in future.
My hon. Friend said a word about the Jimmy Martin case, and, as he raised it, I should like to say a word about it, too, particularly in view of the national insurance commissioner's decision which has been widely reported over the last 24 hours. I do not want anyone's hopes to be raised only to be dashed again. Decisions on entitlement to attendance allowance are, of course, for the Attendance Allowance Board and for the medical practitioners to whom it has delegated powers, and no one else. Appeal to the insurance commissioner lies only on a point of law, not medical fact or opinion.
The error in law found by the commissioner in the case of Jimmy Martin was that the board did not give adequate reasons for their decision to refuse allowance on review.
Contrary to the impression which may have been gained from some Press reports, there has been no change in the law as a result of the commissioner's decision. So far as the individual case is concerned it will now be for the board alone, in the light of the commissioner's decision, to review the evidence and decide whether an award should be made or refused.
Turning to the case of Mr. Kirk on which my hon. Friend rested this debate. I think my hon. Friend knows that careful consideration has been given to the case, but perhaps I can describe briefly the course of the claim. Mrs. Kirk made a claim for the allowance on behalf of her husband on 17th November 1971. Mr. Kirk's doctor was asked to complete a report, which he did. The claim form and the medical report were submitted to a medical practitioner appointed by the Attendance Allowance Board to act on its behalf. He found the medical requirements were not satisfied and, as a result, the insurance officer disallowed the claim and a notice of disallowance was issued.

§ Mr. Wilkinson
As to this examination by the family doctor, although he signed the form and dated it 9th December 1971 the first part of the form says the date of the examination was two months 886 before. It could have been that he was filling in the form when the recollection of his previous visit had become dim in his memory. Will my hon. Friend bear that in mind?

§ Mr. Dean
Yes, indeed, but my hon. Friend will not expect me to comment on what a doctor actually said. That would be beyond my competence, and, indeed, it would be improper for me to do so, because the responsibility is on the board and its officers and the family doctor who makes the report.
I can say that, although the initial report from the family doctor is clearly relevant and taken into account, my hon. Friend will appreciate that in a case like this, where the case has gone to review, there is invariably a second report, and at least one report of another, completely different, doctor, who goes to the home of the person concerned, conducts his own examination, and also speaks to the relatives or other people—in this case, it was Mrs. Kirk—who are looking after the person. So all the relatives have a full opportunity of stating the position as they see it. That is what happened in this case. A further medical report was obtained. This was completed by a medical practitioner who had visited Mr. Kirk in March 1972 and in it a statement was given by Mrs. Kirk.
A copy of the medical reports and of the other documents, including representations made by my hon. Friend and the Bradford Social Service Department, was sent to Mr. Kirk and he was invited to make any comments he wished. Mrs. Kirk replied and enclosed a note. That is another part of the procedure. In a review all the relevant documents are sent to the person concerned so that he has an opportunity of making his comments before the final decision is made.
A decision was given on 1st June by one of the board's delegated medical practitioners. He accepted that Mr. Kirk required frequent attention throughout the day. With regard to the night, he noted in particular that Mr. and Mrs. Kirk go to sleep at about 9 p.m. and that at 3.30 a.m. Mrs. Kirk gets up and prepares tea and biscuits and refills the water bottles. The delegated medical practitioner said that he was unable to accept that this constituted prolonged or repeated attention during the night. 887 He was, of course, giving his judgment in the clear recognition of the Act which lays down what the conditions should be.
It is about six months since that decision was given, and I want to study carefully the information which my hon. Friend has given the House this afternoon, because I have the impression at first hearing that there may be a change in the circumstances in this case.

§ Mr. Wilkinson
I ask my hon. Friend to bear in mind that I have received a recent report from the social worker concerned who backs up exactly what my hon. Friend is saying—that there is now a case for review.

§ Mr. Dean
If my hon. Friend will let me have the additional report to which he has just referred I will gladly ask the board to look again at the whole case. I cannot, as my hon. Friend asks, give a Christmas present to Mr. and Mrs. Kirk, but I hope that it will be some assurance to him, and to them in the burden that they are bearing, that as a result of his raising the case with me today the latest position will be looked at, and the board, I am sure, will respond to my request to review the situation for Mr. and Mrs. Kirk.