§ 6.55 p.m.
§ Mr. Greville Janner (Leicester, North-West)
I am happy to have this opportunity to raise the subject of the procedure and practice of the Attendance Allowance Board in the light of a decision of the Chief Commissioner of National Insurance concerning Jimmy Martin, a young lad in my constituency born with no legs and with only one arm, whose case is in its own way a test case potentially involving 30,000 or more families In many cases the youngsters concerned are considerably worse off than Jimmy. In many cases they are mongols, youngsters who are mentally disabled, and sometimes the physical disablement is worse.
We have here a case that has gone on a most erratic and strange course in the past year, and the parents concerned are still being prevented from obtaining any allowance whatever in respect of the considerable disablement of their son I am concerned not merely for those parents, nor, indeed, only for the 30,000 or so families who have suffered in the same way by not getting an allowance at present; I am also concerned for all those who have to appear in due course before the commissioner but who are prevented from appearing before the board.
I am concerned with the system of justice which allows a secret consideration of a matter which can affect the entire future of a child and his family. I am concerned with a secret hearing where there is no right of appeal on or any decision on fact which is arrived at at that secret hearing. I consider, and I shall suggest, that the procedure is not only intolerable, and always has been, 1430 but is disgraceful in view of the decision of the Chief Commissioner of National Insurance who questioned whether the entire procedure was not contrary to natural justice.
I should not have raised the matter here had I not received a letter from the board in which it has completely ignored the reference in the Chief Commissioner's decision to the rules of natural justice; and a letter from the Minister himself who likewise has seen fit totally to ignore this devastating criticism by the Chief Commissioner of the procedures of this tribunal.
I also raise the matter because the whole question of these procedures and the moneys to be spent on them is vital at the present time. We can draw a very clear and important comparison with other procedures. There is, for example, the procedure of the Criminal Injuries Compensation Board which recently, in a private hearing, saw fit to award the parents of a child who was killed the sum of £60, there being no right of appeal of any sort.
By way, perhaps, of contrast there is the hearing in a certain bankruptcy matter which has been of grave concern in the House and in the country where there is no right of appearance on behalf of people whose good names are defamed in a place where privilege applies. I shall in due course suggest that not only should the procedures of the Attendance Allowance Board be totally overhauled but that the procedures of tribunals such as bankruptcy tribunals dealing with public hearings in general should follow in the same train.
I am concerned, first, with a curious Vote. In 1971–72 the sum of £570,000 was voted for this board. It seems a strange arrangement that in 1972–73 this figure dropped to £100,000. Why? In the present Estimates it has gone up again from £100,000 to £550,000. I should have thought that that increase would have allowed for the appointment of sufficient members to the board for oral hearings to take place at the request of applicants. It would be a rare request, but it would enable precedents to be established and arguments to be heard.
It was a strange fact, referred to by the Chief Commissioner of National 1431 Insurance in open court, that my appearance before him was the first occasion on which counsel had argued an appeal on behalf of an applicant regarding the extremely complicated legal interpretation of the statute. He took a day over the hearing. He reserved his decision for about seven weeks, and the decision, if I may say so with the greatest respect, is a model. It is disgraceful that the criticisms that he levelled against the lack of natural justice in the procedures of the board should be ignored, both by the board in its letter—and, presumably, in its future actions—and by the Minister in his reply.
I should like to preface what I have to say with two matters. The first is that this debate is not intended in any way to be an attack on the members of the board personally. So far as I can see, the few members who sit on it have imposed upon them grave difficulties both in doing justice and in enabling justice manifestly to be seen to be done. It is a basic principle of our courts, and it should be a principle of our tribunals, that justice should not only be done but that people should feel that they are getting justice.
It is plain from the Minister's letter that the members of the board can scarcely cope with the work that they have to do. I am glad that we are voting more money. I hope that there will be more people to do this work and that they will at least be able to listen to arguments, which apparently they are not prepared to do now.
I first questioned the procedures of the board in October last year. I thought that it was a proper matter for the Government to deal with. I received from the Minister a letter dated 11th October, in which he said:I have noted your concern that there is no provision for representation before the Attendance Allowance Board in connection with the review of cases. As I have already explained this is, in the first instance, a matter for the Board and I am advised that, in the light of the tasks placed upon the Board by Parliament, both in the 1970 Act and in the 1972 Act, they believe their present procedures are the right ones.Is that belief still held? I ask the Minister whether in the light of the criticisms of the Chief Commissioner, that belief 1432 is still held by the board and, secondly, whether it is held by him.
The Minister said in his letter:they believe their present procedures are the right ones. Although, as you say, there is no appeal on points of fact, you are, of course, aware that on review copies of all the documents to be placed before the Board are sent to the claimant or his representative for any comment they wish to make.I spent a whole day arguing before the commissioner. One cannot put that kind of argument into a document. It is impossible for a person who is doing the job on a professional basis to do it in that way, and it is doubly impossible for a Member of Parliament who is appearing on behalf of a constituent in that capacity. It cannot be done. Arguments cannot be made in a document. One cannot, in a document, answer all the questions that arise.
My second preface is that I appreciate that the Minister himself is deeply concerned with the needs of disabled people. I hope that he will not regard my criticism of the procedures of the board as personal criticism of him. I am sure that had he the means at his disposal, and were he solely responsible for what was done, the position would be different. But, having seen fit to assume the cloak of responsibility he must accept that responsibility. If he is going to don the wig of justice in this matter, it is for him to see that justice is done and that the procedures of the board which he controls are fair and in accordance with natural justice, which quite clearly at present they are not.
I now turn to the decision with which we are primarily concerned. It is the decision of the Chief Commissioner of National Insurance, No. 10/72 and given after an oral hearing. It is signed "R. G. Micklethwait, Chief Commissioner". I make no apology for taking substantial quotes from this decision, because the debate is about the decision and about the lack of action by the Government or by the Attendance Allowance Board arising from this—a lack of action which, I repeat, affects many thousands of families in this country.
He said:My decision is that the claimant's application for leave to appeal against the Attendance Allowance Board's decision dated 31st May 1972 ("the Board's decision") is granted, and 1433 that the Board's decision is erroneous in point of law and is set aside.In December 1963 the claimant gave birth to a son, to whom I will refer simply as James, who unfortunately was and is seriously deformed in three of his four limbs. Paragraph 5 of the Board's decision (paragraph 10 below) contains their findings of fact as to his condition. His left arm is normal. He is mentally normal. He can read, and he can write with his left hand. He goes to an ordinary school and not a special one.I pay tribute to the parents for having brought about the situation that this boy, with this kind of disablement, can lead that kind of normal life. It is a tremendous achievement on their part and on the part of Jimmy.
The decision continues:Down to a point this case took the course with which we have become familiar in many other cases. The claimant made a claim for an attendance allowance on form DS 2C after reading leaflet NI 182 as directed by that form. A report dated 29th October 1971"—which is many moons ago—on form DS 4C was obtained from the family doctor. On 2nd November 1971 a delegate of the Board decided that neither of the medical conditions in section 4(2) of the 1970 Act (below) was satisfied. The claimant wrote two letters objecting to the decision. A further medical report on form DS 4C(R) dated 12th December 1971 was obtained from another medical practitioner a member of the medical boarding panel. On 28th December 1971 the controller of the Attendance Allowance Unit at Blackpool wrote telling the claimant that the decision made by the Attendance Allowance Board was to be put before the Board with certain documents and inviting observations. The claimant submitted her observations in a letter dated 30th December 1971. On 3rd January 1972 another delegate decided that the decision of 2nd November 1971 was not to be revised. Down to this point the procedure was the same as in many other cases.The claimant was and is a constituent of"—and he refers to me—who was good enough to take an interest in her case, and arranged for the claimant, her husband, James and Mr. Janner himself to call upon the Secretary of State for Social Services in London. The visit took place on 14th March 1972. On 17th March 1972 the Secretary of State personally wrote to the chairman of the Board requesing the Board to review the decisions of 2nd November 1971 and 3rd January 1972 under section 6(3)(a) and 6(3)(b) of the 1970 Act respectively. On 11th April a letter was written on behalf of the Board informing the claimant that the papers had been considered by the Board on 22nd March, that they noted that there had been two previous medical reports, and that they did not as matters stood themselves wish to obtain a further report. If, however, the claimant had any 1434 additional information she was invited to submit it. A copy of the letter was sent to Mr. Janner, who replied on 17th April 1972.On 31st May 1972 the Board of nine members presided over by the chairman decided that the determinations of 3rd January 1972 and 2nd November 1971 were not to be revised. The result of course was that all that the claimant got was the same decision but with differently expressed reasons. The claimant applied for leave to appeal to the Commissioner on two grounds: that the Board's decision was erroneous in point of law in that they had failed to hold that on the proper interpretation of section 4(2) as modified by regulation 7(4) (below) James required (a) prolonged or repeated attention during the night or (b) continual supervision from another person in order to avoid substantial danger to himself.At the hearing before me Mr. Janner, who represented the claimant in his capicity as an MP, was without objection granted leave to add a third ground, namely that the review decision did not contain reasons sufficient to comply with regulation 14(2) (below).The application clearly raises arguable points of law and I therefore grant it.It is extraordinary that nine members of the board, headed by the chairman, could come to a decision on those complicated points of law without having had the opportunity of having the law argued before them. Argument on points of law is not arranged for the benefit of the people involved in the proceedings. It is to assist the court, the tribunal or the board to come to a fair and just decision. A board that shuts itself off from hearing legal argument on behalf of a claimant does one of two things; either it hears no legal argument—and we do not know whether the board heard any—or it hears legal argument on behalf of the Department only and not on behalf of the claimant, which is manifestly grossly unjust. Did the board of nine members, headed by the chairman, decide against the family with or without hearing legal submissions? If they heard legal submissions, on whose behalf were those submissions made? They were not made on behalf of the parents of Jimmy Martin. Does not the Minister consider that to be contrary to natural justice?
The Chief Commissioner, having granted the application, proceeded to deal with it as an appeal. He then set out details of the relevant regulations and portions of the statute, which I shall not detain the House by reading. He said:Briefly the effect of these provisions is as follows. Although an attendance allowance is an additional benefit under the National 1435 Insurance Act 1965, any question whether a person satisfies either of the two conditions, to which I will refer as 'the medical conditions', under section 4(2)(a) and 4(2)(b) respectively, is for decision not by the insurance officer or the local tribunal with an appeal on fact as well as law to a National Insurance Commissioner ('the statutory authorities') under sections 67 to 70 of the 1965 Act, but by the Board, who have power to delegate any of their functions in respect of a case to one or more medical practitioners (section 5(6) of the 1970 Act) referred to as delegates (section 6(5)). The Board or a delegate have power to review their decisions (section 6(3)). The claimant and the Secretary of State must be notified in writing of a review decision and the reasons for it (regulation 14(2)). The only right of appeal to a Commissioner is, with leave, against a review decision and only on any question of law arising on such a decision.My second question to the Minister is this: does he consider that it is just for the family of a disabled child to have a decision made by a secret, private discussion at which not only are the family prevented from being present but at which no representation is permitted? [Interruption.] The Minister said something. I will gladly give way.
Let us take the points in turn. It is a secret discussion by which I mean one at which the public, the Press and the people concerned are not entitled to be present. It is a private one, at which the person concerned cannot be present, nor can his representatives. It can affect the entire future of a family, deciding whether they can look after their child at home in many cases or whether he must be put into an institution, probably at a cost to the country four or five times that of looking after him at home.
In addition, there is no right of appeal. Can the Minister conceivably say that it is in accordance with natural justice to have that sort of decision made in that way without a right of appeal? The time has come for justice to be moved out from these private boards and into the light of day.
The Chief Commissioner continued:Where the disabled person in respect of whom a claim is made is a child under 16 each of the two medical conditions in section 4(2)(a) and 4(2)(b) has additional words added to it by the regulations.He then set out what those are.
I move forward now to paragraph 13 of the decision:In considering this"—1436 the review—it is important to remember that the Commissioner's functions are limited. An attendance allowance being a benefit under the National Insurance Act 1965, the actual award or refusal to award the allowance is made by the statutory authorities; there is a right of appeal against such a decision on any ground to a Commissioner. But the question whether either of the medical conditions is satisfied is for decision by the Board or their delegate, whose decision is binding on the statutory authorities.The commissioner has no right to interfere. In a case such as the one we are considering, in which there is a conflict of evidence betwen two doctors and no right to cross-examine, that is a travesty of justice.
He continued:And an appeal against a decision of the Board or its delegate on the medical conditions lies only against a determination on review on any question of law; there is no appeal on the facts. Parliament has entrusted the decision of the medical questions to a single central medical authority, whose delegates for the purposes of determination under section 5(6) must be medical practitioners and must act in accordance with any directions of the Board. Obviously one of the purposes is to secure so far as possible uniformity and fairness of treatment as between the extremely numerous claimants throughout Great Britain. Against this background it would be most unfortunate if the Commissioner, in the guise of deciding questions of law, were in truth substituting his own layman's opinion on the facts or the medical inferences to be drawn from them.He cannot hear evidence of fact, he cannot hear the doctors, he cannot hear cross-examination of the doctors. The board can, but it does not. It most certainly should.
The Chief Commissioner continued:This makes it particularly important to recognise both the limits beyond which the Commissioner has no power to act and the tests to be applied in deciding whether a decision of a question is erroneous in point of law.He then set out the tests, which include the test that the decision was contrary to natural justice.
He next dealt in detail with the evidence as it appeared from the various documents before him, in its utterly unsatisfactory form, and then said, in paragraph 21:I express no opinion on the question whether the Board or their delegates, who have not clinically examined the disabled person, are entitled to record a finding of primary 1437 fact which is contrary to all the evidence and supported by none.What is the Minister's comment on that?
In paragraph 25 he said thatBoth doctors, however, reported that he could unaided get into and out of bed. One reported that he could get into and out of the bath and the other that he could not. There was therefore a conflict of evidence: on those points they disagreed with each other or with the claimant.The importance of the claimant's own evidence is apparent if one asks oneself what would have happened if after dark James had been left unsupervised with nobody in the house. If he woke up or half woke up and wanted to use the toilet and got no answer when he shouted, he might well try to get there himself and get stranded out of bed in the dark unable to turn on a light, unable to open the door and unable to get back safely into bed. It is no answer to say that there is no evidence that that had ever happened. If it had not, was not the reason that the supervision had always been provided?The child had never been left alone since his birth.
In paragraph 30 the Chief Commissioner said:Having fully considered the matter my conclusion is that the reasons given by the Board are seriously inadequate and do not comply with regulation 14(2). The claimant and Mr. Janner cannot tell from them whether the Board accepted or rejected her evidence in whole or in part nor indeed whether they accepted all the opinions of either and if so which of the two doctors".What an indictment of a nine-man board presided over by the chairman!She cannot tell what further evidence she needs to obtain if she wishes to seek a further review. On this ground the decision must he held to be erroneous in point of law and set asideWe now continue with the portion which has so far been ignored but which, after this debate, will be ignored no longer:If I had taken a different view on this I should have thought it right to raise the question whether this decision and the precedure leading to it comply with the rules of natural justice. In paragraph 9 of Decision CA 8/72 (not reported) I drew attention to the immense difficulty facing the Board in deciding a case of this type without a hearing of any sort on the facts; to which one might add also without any form of oral legal argument.The Commissioner decided that to submit a person to this sort of tribunal without any form of hearing on the facts and without any oral argument on the law was, in his view, questionable from the standpoint of complying with the rules of natural justice.
1438 What is the Minister's view? Does he consider that it does comply with the rules of natural justice? If he does not, what does he propose to do about it? The only answer we have had so far from either the board or the Minister is that any changes which they propose will be in the forms which people are given.
The Chief Commissioner then criticises the way in which the forms were set out, and this, I understand, has been changed. In paragraph 33 he says:In the special circumstances of this case I express no opinion on the question by whom and in what manner the claimant's case should be considered afresh, by or on behalf of the Board, who under Section 5(6) have power to delegate their functions to one or more medical practitioners. The claimant and Mr. Janner should, however, be given every opportunity of submitting further evidence.I have asked for, and been refused, the opportunity to submit oral evidence. In view of this decision, how can the Minister possibly support that? The Chief Commissioner has ruled that my constituent and I should be given every opportunity of submitting further evidence—not the opportunity to submit written evidence, if we see fit and at the claimant's expense for that is what it would be. There is no provision made for the claimant in this respect. We have been refused even a medical examination at public expense. But we are told that we may submit written evidence, if we wish, at the claimant's expense.
Is that "every opportunity"? This matter goes beyond consideration of an individual case. The board will come back to it, and I shall fight the case, however many years it may take before we win it. But what matters here is not this case but every case. The Chief Commissioner has said that this is an example in which the procedure is contrary to natural justice, but the Minister and the board say, "We shall just change the forms". I remind the hon. Gentleman again that the Chief Commissioner said that every opportunity should be given to submit further evidence, but he and the board are refusing to allow it.
There is here not only a manifest refusal to make the changes which should be made, but there is an utterly intolerable situation, and it is in the hands of either the board or the Minister to correct it. According to the Minister's letter which I have already quoted, the initial decision 1439 is for the board. But that applies only to the initial decision. The responsibility lies with the Minister.
I come now to the letters. I have raised many of these questions by correspondence because one hopes to deal with the matter in that way, and one can never count on the good fortune of an opportunity to raise such issues on the Consolidated Fund. I received a reply dated 19th January from the secretary to Attendance Allowance Board:
"Dear Sir, I have, as promised, placed your letter of 18th December to me before the Board. They have directed me to reply to your points in the following terms:The Board regret that they are unable to accept your application for an oral hearing when the further review comes before them. In this connection they have failed to find in the Chief Commissioner's decision any adverse criticism of their failure to hold an oral hearing in this case".Good gracious! I refer once again—I cannot put it to the board because I am not allowed to do so, so I do it here—to the statement of the Chief Commissioner that I should be given every opportunity of submitting further evidence—which is refused—and to his further statement questioning whether the procedure, without any sort of hearing on the facts and without any form of oral legal argument, complied with the rules of natural justice.
Is that not a most serious criticism? Yet the letter from the secretary tells me that he has been instructed by the board to say thatthey have failed to find…any adverse criticism of their failure to hold an oral hearing".I do not suppose that the board had read the Chief Commissioner's report, which in itself is a great pity. If the members of the board are so overburdened that they cannot read even a report of this kind, their number should be increased forthwith, and they should be asked at least to read it. Surely, the Minister must accept that that statement in the letter, that the board could find no adverse criticism, was quite unreasonable. The letter continues:They wish me to point out that they would regard it as quite unfair to the generality of claimants if they were to grant an oral 1440 hearing exceptionally in one case when they are unable to provide such hearings for all applicants for review who so desired.Has there been any other such case? Has anyone ever asked for it? If others have applied, how many? I should be surprised if, by the pure freak of fate that this family happens to have a Member of Parliament who happens to be a lawyer and who is interested in these matters, there has been no other occasion when the Chief Commissioner has had a lawyer appear before him on behalf of a claimant, when an appeal has been allowed, and it has been referred back. However, to the best of my knowledge, there has been no such case, and I want to know.
§ Mr. William Wilson (Coventry, South)
I assure my hon. Friend that there is another Member of Parliament, also a lawyer, who is at this moment in the pipeline hoping to secure an oral hearing.
§ Mr. Janner
I thank my hon. Friend, and I assure him that the support of another hon. Member tonight gives me great confidence. Up to now, I seem to have faced a totally blank wall, and I trust that, when it is known that this matter is of deep concern to many of us, we shall succeed in getting somewhere. Incidentally, I should add that I know that the issue is not regarded in this House as in any sense one of party politics. There are many hon. Members on both sides, deeply concerned, who feel seriously frustrated in their efforts to help constituents and who regard the treatment of their constituents by the Attendance Allowance Board as quite shocking. There are others in the pipeline who have been good enough to approach me on the matter, and I know of several cases which are coming up.
This will certainly not be the last that the Minister hears of it. There will not be just the Jimmy Martin case. The pipeline is long, and it will not end when some claimants receive two-thirds of the allowance. That is a welcome step, but it is only a step. At present, these people get nothing. We hope that they will get two-thirds, but there is no assurance yet even of that.
The letter continues:It seems to them that in making statutory provision for the Board and their system of adjudication a choice had first been made. One possibility would have been to set up 1441 medical boards throughout the country to make initial decisions with a right of appeal to various medical appeal tribunals, much as is done in the Industrial Injuries Scheme, with an express right to appear before the boards or tribunals and to make oral representations. If the choice had fallen on this system it would seem that, in view of the limited medical manpower available, it would have been necessary to proceed very much more slowly with the introduction of the allowance, taking on much smaller categories over a much longer period.I pause there to say that, in my view, where there is so much involved for so many families, we should put more resources into it. I am glad that we have a Supplementary Estimate. There should have been a great deal more.
The secretary refers in his letter to the fact thatthe Board and their delegates have dealt with over 170,000 applications for the allowance and 26,000 applications for review since claims were first invited some 18 months ago.I repeat that the members of the board have my sympathy in this matter. They should have the Minister's help.
The letter goes on:It is, of course, open to Mrs. Martin or to you yourself to submit, in writing, medical or other evidence.Very kind! He goes on:The Board are advised that they have no power to pay for medical evidence produced by a claimant".The effect of that is. "If you want a consultant on your side, the Martins must pay". Mr. Martin is a lorry driver, of modest means—a tremendously good and kind man but in no position to pay for that, any more than he would have been in a position to pay for his own legal representation had that arisen, which, happily, it did not. The letter continues:In the particular circumstances of this case, however, they propose to obtain a medical report from a consultant.So there is to be one for the board, whose procedure and decision has already been severely criticised, but I shall not have the right to cross-examine that consultant or to call another in opposition to his evidence.
Does the Minister regard that as in accordance with natural justice? Or, if the board decides against, are we to go back again to the Chief Commissioner and say yet again that there is a lack of natural justice and that there has been 1442 a refusal to grant elementary rights which his decision said should exist? The secretary continuesI shall, however, be writing to you again about this including particulars of the arrangements to be made for Jimmy to be examined by the consultant.That is a matter of courtesy, as one would expect. It goes onThe Board are not aware of any undue delay either on their part or on the part of the Department of Health and Social Security.After all, this has only been going on for 16 months. The boy will be grown up before his case is finished.Revised versions of the Board's medical report forms came into use in August 1972 and the Board keep the forms under review in the light of comment and experience.The secretary then says that a copy of the letter has been sent to the Department of Health and Social Security. In other words we have nothing—no early hearing, no right to submit oral evidence, no right to obtain evidence at public expense.
Finally, in a letter to me dated 22nd January the Minister says that he has seen a copy of the letter sent to me by the Secretary of the Attendance Allowance Board in reply to my letter of 18th December. If there are additional parts of the letter which the Minister would wish me to read out I should be glad to do so. I shall read only those parts which I consider to be relevant. He says:We have, we believe managed to recruit just about enough people to deal with the extension using the sort of system that has been operating over the last 18 months but I feel sure that, if we were obliged to change over to the sort of system of oral hearings used under the Industrial Injuries Scheme, we should simply not be able to find enough suitable people to enable us to proceed with the extension at anything like the rate at which we are aiming—and which we all feel is desirable.In other words, there will not be enough staff. But if the Government find the money—and I have no doubt that hon. Members on both sides would be pleased to vote money for this purpose in much larger quantities—they will find the people to staff a tribunal or board of this sort. There must be many who would be willing to staff it on a voluntary basis. The Minister says:I do want to emphasise that even with valiant efforts the Board have had difficulty in getting through the work with the existing system.1443 I fully accept that. I demand that the system be changed. It is manifestly unjust. He continues:the Chief Commissioner has, of course, decided that the Board's decision did not comply with the requirement to give reasons, contained in Regulation 14(2) of the Attendance Allowance Regulations, with the result that they are required to give a further decision on review. Subject to this, however, it does not appear to me that it follows from the Chief Commissioner's decision that in this case the Board erred in law in any other respect. If the Board were to decide to maintain the original decision and the Martins were then still dissatisfied it would again be open to them to appeal on a question of law to the National Insurance Commissioner.I say "Thank you for nothing." That is not the way matters concerning the future of a family and the welfare, not of one disabled child but of 30,000, should be dealt with when they have to go back and forward like a yo-yo every time. That is the evidence. The question now is: what is the Minister proposing to do about it? What answer will he give, if there is one, to the criticisms made by the Chief Commissioner? Is he proposing to change the procedure? If not, why not?
Does he not consider that this is symptomatic of a much wider malaise affecting other tribunals and the court decision? Does he not see in the flood of decisions which have come not only from the board but from others a demand for open, non-secret justice? Does he not see that what applies here applies to the Criminal Injuries Compensation Board with its lack of right of appeal? Does he not see that justice should be open and that the people should have the right to appear and to argue their case whether it is before the Attendance Allowance Board or whether it is someone who is involved willy-nilly, by statements made by witnesses or by lawyers in a bankruptcy hearing?
Does the Minister not feel that the entire system needs review? Is he not prepared to give some hope that this is being done? Does he not feel that there has been a mistake which would not have been made had there been proper legal arguments before the people concerned? There has been no representation provided by legal aid on behalf of the people most intimately concerned. There has been at last, after months of battling, a decision overruling the repeated 1444 refusals of the Attendance Allowance Board to grant an allowance to this embattled family and there have been criticisms by the commissioner which have not been answered. The Commissioner has required that every facility and every right should be given to Mrs. Martin and to me on her behalf to present further evidence. None of these requirements has been complied with. What possible answer can the Minister give to that?
§ 7.35 p.m.
§ The Under-Secretary of State for Health and Social Security (Mr. Paul Dean)
I am grateful for this opportunity to speak about the Attendance Allowance Board and the procedures it adopts. I profoundly regret the extravagant language that the hon. and learned Member for Leicester, North-West (Mr. Greville Janner) has felt it appropriate to use, the unfairness of his language about the Attendance Allowance Board and the way in which he has picked out certain parts of the Chief Commissioner's judgment and distorted them.
§ Mr. Dean
I do not wish to give way. The hon. and learned Member has spoken. Perhaps he will now allow me to deal with the points he has raised.
The new allowance started just over a year ago, and three things stand out clearly from experience. The first is the value of the allowance in helping disabled people who need a lot of attention and care day and night, and who need this attention and care from their own families, to provide it. Second is the need to extend the allowance as quickly as possible to cover those whose need for attention is great although not as great as to meet the stringent test deliberately set to get the allowance to those in most urgent need. Third is the enthusiasm and dedication of the board and its staff, both medical and lay, who have got this new allowance to so many people so quickly.
The allowance is now at the rate of £5.40 tax free and non-means tested, and is being paid to more than 82,000 people. The amount being paid out is at the rate of £23 million a year. By the end of 1974 the figure will have increased to £70 million a year. The attendance allowance is different from the other social service 1445 benefits, and its procedures and adjudication are designed to fit the requirements and to be able very quickly to set the standards to be applied. It was, therefore, decided that responsibility should lie with a new central body.
The Attendance Allowance Board consists in the main of experienced medical practitioners. That body clearly could not cope with all the claims expected. The maximum membership is 10, and nine have been appointed, including the chairman. It has been empowered to delegate its functions to medical practitioners in individual cases. The board having been set up, it was not possible to think in terms of a higher medical appeal body, and in place of the more usual right of appeal there has been right from the start a system of reviews. This review system is not uncommon in the rest of national insurance, as the hon. and learned Gentleman will know, but it is much wider here than the usual right of review. The usual right of review is limited to ignorance of a material act, a mistake as to a material fact, or a relevant change of circumstances.
People who are dissatisfied with a decision about the attendance allowance may have a review on any ground within a period of three months. As the hon. and learned Gentleman knows from his own experience in this and in other cases on which we have corresponded, this review introduces an element of flexibility—the possibility of going over the case again—such as does not exist in the normal adjudication procedure which applies to the national insurance scheme, family allowance arrangements, and the like. The hon. and learned Gentleman has given nothing like enough credit to the flexibility provided in the review procedure.
If there were to be reasonably even standards of adjudication in what, after all, is a new allowance, a pioneering allowance, it seemed clear that responsibility for making decisions should be limited to a relatively small number of doctors. For information about a disabled person they need to seek reports from other doctors. In fact, the co-operation of all 23,000 general practitioners in Britain was sought in order to get the scheme launched. It is the family doctor 1446 who is first asked to visit and to complete the report form. The delegate of the board or the board itself decides on the basis of the information in his report and any other information given by the claimant. In order to complete an adequate form, the doctor has to see the disabled person and ask questions about his needs, and it is often necessary for these questions to be put to whomsoever is providing the care; certainly that is true in the instance of children.
If the claimant is dissatisfied with the first decision, he may ask for a review. A different doctor is asked to visit and complete a report. From the start, these reports have included a statement made by the claimant to the doctor and signed by him. These statements are now also included in initial reports.
Equally, in order to complete the report the doctor needs to question the disabled person and those looking after him. Thus, following a review, the disabled person—or his attendants—has had the opportunity to express his needs and to discuss them with at least two doctors, in most cases in his own home. There is nothing remotely impersonal about this, and to describe this careful procedure as being contrary to natural justice and secret is a distortion of the way in which the procedure in fact works.
Furthermore if people are dissatisfied with the initial decision they are told that they may present evidence from other people if they are thinking of applying for a review. If the board or delegated medical practitioner dealing with the review is unable to decide in the claimant's favour, copies of all the documents are sent to him to enable him to comment. This is the way in which the system has worked effectively and fairly over the initial stages.
In the first 18 months of the scheme some 160,000 claims have been dealt with and some 25,000 applications have been reviewed. In defending the procedures of the board and the work it has been able to do in a comparatively short time I am not for a moment suggesting that the system cannot be improved or that we cannot all learn from experience. Indeed, we certainly can, and we are doing so. Improvements have already been made in the light of experience, including comments received. Notices of 1447 rejection have been altered; leaflets have been re-drafted; and medical report forms redesigned and expanded. Procedures are being kept under review all the time, and particular attention is now being paid to the implications of the Chief Commissioner's comments that when documents are sent out claimants should be given an idea of the way in which the decision, as currently conceived, is going. In other words, there is an intention, being implemented in practice, to learn from experience and to improve procedures in the light of that experience.
The hon. and learned Gentleman spent a good deal of time referring to what he regarded as the need for oral hearings. I hope that what I have already said has clearly conveyed that within this procedure there are many opportunities at all stages for the views of all who are interested and all who are knowledgeable to be fully heard, to be fully recorded and to be studied even in the homes of the claimants by at least two qualified doctors in those instances where there is a review. That is a valuable safeguard in the interests of natural justice for those concerned.
With his legal training and, no doubt, his familiarity with the procedures of the courts, the hon. and learned Gentleman is concerned about oral hearings. The board is in no position to grant oral hearings. The original concept of quickly getting reasonably even standards of decision-making by a relatively small cadre of doctors working under the direction of the board would be lost. This is immensely important. One of the criticisms of the scheme to begin with was that there were uneven standards over the country. If we are to avoid having uneven standards and injustice in that way, it is important, particularly in early days, to have at least some decisions concentrated so that we may iron out the difficulties that would otherwise arise.
Equally, the extra medical manpower that would be needed is not available. The hon. and learned Gentleman said that he was sure that Parliament would provide more money so that his suggested new procedures could be put into operation. Surely he realises that the chief bottlenecks in speeding up procedures and in getting the allowance to those entitled to it under the extension is the 1448 shortage of medical manpower which is required not only for the attendance allowance board but for all other medical tasks.
It is no answer for the hon. and learned Gentleman to say that all we have to do is to provide more money and we shall suddenly have vast numbers of doctors, who are now unemployed, or tucked away somewhere, longing to come forward to do this job. It is nothing like as easy as he has made out. We have scoured the country to find more doctors. We have been successful in recruiting some, but there are distinct limits to the numbers who may be made available. When they have been made available, they have had to become familiar with the processes involved in order that the right decisions may be made.
Claims for the new lower rate of allowance of £3.60 are now being taken. This will place an even greater strain on the manpower resources available, particularly the medical manpower. It is expected that anything up to 500,000 claims may be received and that another 250,000 people will be receiving an allowance at the end of the day. The board has had difficulty enough getting through its work over the last 18 months and the task will be even greater in the next two years. To move away from the present system of adjudication to a system of oral hearings would be unfortunate for thousands of disabled people. It would mean that they would have to wait longer for an allowance than under the present system. While we have probably 250,000 people waiting for the allowance, the first priority must be the maximum speed consistent with fair and efficient administration.
§ Mr. Dean
Consistent with fair and efficient administration.
Against that general background, I turn to some of the detailed points which the hon. and learned Gentleman mentioned with regard to the Chief Commissioner's decision. I have explained already that this is an important decision which is being considered carefully by the Attendance Allowance Board, which has primary responsibility in these matters for 1449 its procedures, and it is also being considered by the Government. I have mentioned the changes which have been made already as a result of the suggestions which there were there, but, in view of the sum of the comments of the hon. and learned Gentleman, it is important to spend a few moments dealing with what that decision actually said.
Before doing so, let me deal with two specific points put to me by the hon. and learned Gentleman. First, in the case in which he is interested the board decided on the evidence before it, copies of which were sent to the hon. and learned Gentleman and to Mrs. Martin, and on nothing else. I am assured that there was no legal submission or argument, secret or otherwise. The board decided solely on the evidence.
The sole ground on which the Chief Commissioner set aside the decision of the board was that the reason given for its decision was seriously inadequate and did not comply with Regulation 14(2) of the National Insurance (Attendance Allowance) Regulations 1971.
In paragraph 22 of his decision, the Chief Commissioner said that he was not prepared to hold the board's decision to be erroneous in point of law on the ground that there was no evidence to support it.
In paragraph 21 the Chief Commissioner referred to the board or its delegates drawing on their expert experience being entitled not merely to supplement but even to contradict any evidence of opinions before them.
The hon. and learned Gentleman quoted paragraph 31, and went on to say that the Chief Commissioner said that the procedure was contrary to natural justice——
§ Mr. Greville Janner
With respect, in view of the fact that the hon. Gentleman has referred quite unfairly to distortion because I did not read the report from beginning to end, it is fair to say that I made it plain many times that what the Chief Commissioner said was that in any event he would have questioned whether this was not contrary to the rules of natural justice. This is what he said.
§ Mr. Dean
It was the hon. and learned Gentleman himself who said that it was 1450 contrary to natural justice. As he has said, the Chief Commissioner did not. In paragraph 31 he said that if he had taken a different view on the adequacy of the reasons he would have thought it right to raise the question whether the decision and the procedure leading to it complied with the rules of natural justice.
Folic-wing a reference to oral hearings, the Chief Commissioner referred to leaflet NI.I 82, which contains the paragraph:Once the claim has been made there is nothing more to do. The claim will be acknowledged, and the Department will arrange for any necessary medical examination to be carried out.The Chief Commissioner referred to this helpful approach as placing a heavy responsibility on the Department or on the board. The leaflets relating to adults have been reprinted and reference to there being nothing more to do has been taken out. The paragraph now reads:Once the claim has been made the Department will acknowledge it and will arrange for a medical examination to be carried out, usually by the disabled person's own doctor.There was also a reference to the need to obtain information in medical reports relevant to the need for continual supervision to avoid substantial danger. The medical report forms were, in fact, revised by the Attendance Allowance Board, and new forms came into use in August 1972. There are supplementary report forms to be completed in cases of mental abnormality where supervision to avoid the danger is especially relevant.
The Chief Commissioner went on to say that in sending documents out for comment there was a good deal to be said for the contention that such a letter accompanying documents ought to tell the claimant the view which the board had provisionally formed. Careful consideration was being given to the possibility of applicants for review generally being told of the provisional view formed by the board or a delegated medical practitioner when documents were sent out to the applicant for comment. So I think that it is clear not only that is this judgment being considered seriously both by the Government and by the Attendance Allowance Board, as it should be, but that action has been taken already on some of the proposals contained in it.
The hon. and learned Gentleman then came back to the case of Jimmy Martin. 1451 I assure the hon. and learned Gentleman again, as the board has already done, that it will be very glad to consider any medical or other evidence submitted to it in writing. As the hon. and learned Gentleman knows, the board itself proposes to seek a medical report from a consultant, and he will be informed of further details of the procedures which are involved——
§ Mr. Greville Janner
May I have the hon. Gentleman's assurance that I shall be supplied with a copy of the consultant's report so as to put in evidence in reply, if required?
§ Mr. Dean
I think that I can assure the hon. and learned Gentleman that in the event of the review procedures going into operation once more he will again receive all the evidence and all the appropriate documents made available in cases of this kind. Certainly Mrs. Martin will. I wish to check that because I do not want to mislead the hon. and learned Gentleman, but I am almost certain that this will be an appropriate document for inclusion. However, to be absolutely right perhaps I might correspond with the right hon. and learned Gentleman and clear up that point.
In view of the work which the hon. and learned Gentleman has done on this case and on others I hone that as a result of this debate I have been able to assure the House that the Attendance Allowance Board—a new board starting with a new allowance—has been able to get into operation a very large number of badly needed allowances to hard-pressed homes in a comparatively short period of time, that there is within its procedures ample opportunity for review, that there is ample opportunity for personal contact and, therefore, for oral hearings in the home, which is the natural place where they can take place most freely and most readily, and that these are all achieved under the existing arrangements.
I hope that I have also been able to assure the House that we realise fully that the procedures are not perfect. They are being improved all the time, and we shall give careful consideration to the points raised by the hon. and learned Gentleman.
1452 I conclude by confirming that the hon. and learned Gentleman will receive the evidence seen by the board, including the consultant's report.
§ Mr. Janner
Is that an assurance that I shall receive the evidence so that in accordance with the Commissioner's decision I may present further evidence in the light of it? It is no good providing it afterwards.