HC Deb 07 December 1977 vol 940 cc1606-18

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Snape.]

1.41 a.m.

Mr. Peter Walker (Worcester)

I am grateful to the Minister for staying so late for this debate, which, as he will appreciate, is of some importance both in principle and to the individual concerned.

The subject of the debate is the case of Robert Edmunds, a 12-year-old boy who has a considerable medical disadvantage since he suffers from a disease known as Down's syndrome and a number of other mental afflictions.

The boy's parents have throughout the 12 years of his life bestowed upon him all the love and affection that parents can give to a child with those problems and disadvantages. They have made immense sacrifices for him. They are a family of limited means, as are many families suffering similar circumstances. The results of this case will affect not only the family in question but hundreds of other families with similar problems.

Robert's parents applied on his behalf for a mobility allowance in 1976. Their first application was turned down and they appealed to a medical tribunal. That body concluded that the boy should be given a mobility allowance. However, the Department appealed against that decision and asked for leave to appeal. The medical tribunal again considered that the boy was entitled to the mobility allowance, and the Secretary of State decided to appeal to the National Insurance Commissioner.

Having won their case before the medical tribunal in March 1977, the boy's parents now find themselves still awaiting an appeal to the National Insurance Commissioner. That appeal will be held on 16th December. I suppose that they are lucky in being afforded such a date, because the delay in their case is less than the current average in cases that go before the commission. I presume that the Department has done its best to see that the case is heard as quickly as possible, and I am grateful to the Department on that ground.

There are three basic points of principle with which I wish to deal. The first relates to the basic problems of administering appeals of this nature. I have been told by the Secretary of State that the average delay in the hearing of appeals by the commissioner is seven and a half months. I have received letters from those involved in similar cases, and some people have had to wait as long as nine months for appeals to be heard. I hope that, as a substantial increase in the time lag has taken place over the last two years, administrative action will be taken to speed up these appeals.

I hope that everyone will recognise the ghastly depression that one suffers when one has won an appeal to a medical tribunal and then suddenly receives a letter saying that one will not receive the allowance and must wait for yet another appeal before the National Insurance Commissioner. I hope that that delay will be looked into.

In this case, the medical appeal tribunal found in favour of Robert on 24th March. The Department had three months in which to appeal. In fact, the solicitors for Robert received the appeal three days before the three months expired. On 12th July the medical appeal tribunal again found in favour of Robert. The Department had 21 days in which to appeal. Some of its appeal documents were dated the day before the 21 days had expired and others were dated three days afterwards. On 6th September the Department was given leave to appeal, and it then took it seven weeks to lodge its appeal to the National Insurance Commissioner. There has, therefore, been a total of five to six months' delay due to the lack of speed taken by the Department in making and lodging its appeals. I hope that the Minister will examine this matter carefully to see whether in any other such cases the procedure could be speeded up.

I want also to raise a point about a matter for which the Minister is not responsible and which is the responsibility of another Department—that is, the whole question of legal aid in such cases. In the case of Robert, to put the case to the medical tribunal and to argue against the Department before the commissioner, the estimated legal costs are in excess of £500. There was no way in which Robert's parents could have found that money. They are fortunate that a local solicitor has given his services totally free, and a barrister is doing the same for the appeal to the commissioner.

In 1974 the Advisory Committee on Legal Aid recommended that legal aid should be given in such cases. Recently, the Attorney-General told me in reply to a Question that, while the Government were sympathetic to this recommendation, they considered that it was not opportune now due to the limitations on public expenditure. It is a considerable injustice that, when a Government department—doubtless for perfectly valid reasons—decides to make an appeal and has its presentation and preparation of its case for that appeal done at the expense of the taxpayer, the parents of a handicapped child of extremely limited means should have no form of legal aid whatsoever.

Even if one accepted the principle that where a Government Department decided to make an appeal against an award given to a handicapped person legal aid should be provided to the person concerned, the costs would be extremely small. The number of cases heard by medical tribunals each year is about 3,000, and only a handful are heard by the commissioner, so the total cost would be extremely small although the hardship involved is not. Probably there is a number of cases that do not go to appeal because parents without legal advice are bewildered and frightened of the whole process. That should cause the House considerable concern. In such cases it is essential that legal aid should be made available.

There is another principle involved, and that is of the case itself. I wish to bring to the attention of the House the basic arguments that have been used. I cannot do better than give the House the views that were expressed by the medical appeal tribunal when, in March, it pronounced in favour of Robert's obtaining a mobility allowance. I quote: We agree that the boy is suffering from mongolism a condition which is due to faulty genetic inheritance and can therefore be classified as a physical disorder. We accept the evidence that while he walks for some yards he is liable to run, stop, lie down and refuse to go further; this reaction which seriously impairs mobility is directly due to the physical condition of mongolism. We therefore conclude in the light of the available evidence that Robert Edmunds is virtually unable to walk because of physical disablement. We further find that such virtual inability to walk is likely to persist for a period in excess of 12 months from 24th November 1976 and will probably persist until pensionable age, or the duration of life whichever is the shorter. We also find that he will have direct benefit from receipt of the allowance. The Minister sought leave to appeal against that, but the medical appeal tribunal said: The submission of the Secretary of State seeks to separate the claimant's mental state from the physical condition to which that mental state is directly due. This cannot be accepted because the mental state is the direct consequence of the physical malformation of a particular chromosome. Since the claimant's condition is such that he cannot walk without danger to himself because he has no control over his movements and is also such that the time or distance for which he will walk is predictable only in that it is severely limited. The claimant is virtually unable to walk because of physical disablement. We see no reason to believe that there was any factor contributing to the claimant's inability to walk other than the physical disability which prevents the co-ordination of mind and body. The basis of the Minister's appeal, according to the document that he has put in, is: The Secretary of State submits that a person who is physically able to walk but does not make effective use of his walking ability, or uses it in a bizarre or dangerous manner, because of mental limitation or disorder, cannot be said to be unable or virtually unable to walk. If that principle were maintained at the appeal, if the appeal were successful and the Government decided to apply it to people in similar circumstances to Robert, it would be a real and grave injustice.

I concede that someone with this form of mental disorder may not be entitled to a mobility allowance. Many can walk long distances and, under the present limitations, do not deserve the allowance. But Robert has rarely, if ever, walked more than 30 yards, and it can be shown by medical evidence that he is virtually unable to walk.

I also concede that there are cases of mental disability in which the allowance would be of no purpose because the nature of the disability is such that the person would not gain any benefit from being mobile. But the medical tribunal found that Robert would benefit from mobility.

I hope that the Government will concede the principle that, if someone is virtually unable to walk as a result of a mental disorder and it can be shown that he would benefit from having mobility, he will have the same entitlement to mobility allowance as someone suffering from a physical infirmity. This is a vital principle to concede.

I hope that the Minister who is to reply to the debate will be able to answer some of the questions that I put in my letter to the Secretary of State. I am doubly concerned about the Minister's appeal succeeding. There are a substantial number of children suffering from this complaint who are less disabled than Robert but who are receiving the mobility allowance—I know of three cases personally—and they may lose it.

If the appeal does not succeed, I hope that the Minister can assure me that he will do everything possible to contact the many other cases that are similar to Robert's who have been turned down for mobility allowance and also the parents who have not yet applied for the allowance.

I hope also that the Minister will be able to say—this is my main hope tonight—that if Robert's case succeeds, that is, from Robert's point of view, there is no need for amending legislation, but that if the object of the Department is to establish the legal position, and the legal position is that somebody such as Robert who, by reason of mental disorder, is unable to walk and would benefit from the mobility allowance is prevented from so doing, the Government will introduce amending legislation at an early date.

Always in a case such as this there tends to be the suggestion that criticism of the Minister or the Department is intended. That is not my objective. Most hon. Members on both sides want to improve the lot of the disabled. I know that the present Secretary of State, for personal reasons and his motivations in politics, shares that wish. The same is true of the Under-Secretary of State who is to reply tonight. At no stage have I suggested that they want to limit help in cases of this kind because of any hostility at any point.

All of us want to see such people have the best possible treatment. But because of a fault in the law, perhaps, or a fault in circumstances, we have a situation here in which a boy—both he and his parents have suffered enough already—who deserves the benefit of the Government's innovation of the mobility allowance will not receive that benefit, unless the Government fail in their appeal to the commissioner or, if they succeed, they bring in amending legislation.

I hope that those three basic points of principle will be met—improved administrative machinery, providing legal aid to such people, and amending legislation to provide benefit to people such as Robert Edmunds. I look forward to favourable answers from the Minister.

1.56 a.m.

The Under-Secretary of State for Health and Social Security (Mr. Alfred Morris)

I am grateful to the right hon. Member for Worcester (Mr. Walker) for this opportunity to address the House on a matter of such importance. This is not the first time that the right hon. Gentleman has initiated an important debate on the problems of disabled people. As on the earlier occasion, he has argued his case with courtesy, with sincerity and with force.

The right hon. Gentleman is concerned about the case of Robert Edmunds which is now before the National Insurance Commissioner. While I have no wish to intrude into the legal processes, I want to make my position clear from the outset. I shall be delighted if the National Insurance Commissioner finds in favour of Robert Edmunds. Moreover, if he does find in Robert's favour my Department will pay all the arrears from the earliest due date.

The right hon. Gentleman knows of my very close involvement in the introduction of mobility allowance, which has been of enormous help to tens of thousands of severely disabled people who previously received no outdoor mobility help at all. Indeed, we are now in the process of more than quintupling my Department's expenditure on mobility for the disabled compared with what was provided under the previous Administration.

With that credential let me, therefore, make plain that I should have wanted no part in the making of any scheme for mobility help which specifically excluded cases of Down's syndrome. Yet the false impression has been given that such cases are excluded. I must strongly emphasise, therefore, that our present scheme does not exclude cases of Down's syndrome. In fact, the mobility allowance scheme is not in any way related to particular diagnostic groups. Entitlement is based on inability to walk, and there certainly are people suffering from Down's syndrome who have already established title to the allowance.

Some of the news coverage of the case of Robert Edmunds reveals serious misconceptions about the help available to the families of disabled children. There are misconceptions about the rules of entitlement to the mobility allowance. There are misconceptions about why a reference was made to the National Insurance Commissioner and about how the reference will be considered. These are misconceptions which I must now seek to correct.

Mobility allowance is payable to those who can show that they are suffering from physical disablement such that they are unable or virtually unable to walk. The right hon. Gentleman is reported in The Times of 5th December as saying that the scheme needs amending so that mentally handicapped people who cannot walk are treated like those with a physical handicap that prevents walking". This gives wide currency to a very serious misconception indeed. The allowance was always intended for anyone who cannot walk from whatever cause. It is available just as much to the mentally ill and the mentally handicapped as to other peope who are unable or virtually unable to walk.

I turn now to the misconception about why the case of Robert Edmunds was referred to the Nationl Insurance Commissioner. It was to obtain a decision on an important point of law. There are 13 medical appeal tribunals sitting at over 20 centres throughout the country. These tribunals are independent adjudicating authorities, and neither the Secretary of State nor any Minister has power to intervene in their decisions. Ministers are bound by their decisions, as are the claimants who appear before them. But the interpreation of the words in the Act unable or virtually unable to walk because of physical disablement has led to inconsistent decisions. The reference is essential to enable the National Insurance Commissioner to clarify the meaning of the legal provisions which Parliament as a whole approved.

It is quite wrong to suggest that the Secretary of State is taking sides, when, in fact, what he is seekinkg is a clarification of the law that could be of help to many disabled people. What is sought is not a victory but a decision that can be consistently applied.

My right hon. Friend made his position clear in a letter to the right hon. Gentleman from which I quote. It reads: I repeat that I am not trying to exclude children like Robert who suffer from Down's Syndrome from mobility allowance. The sole purpose in putting this case before the National Insurance Commissioner is to ensure uniformity, consistency and equity in the interpretation of the law throughout the country. We are the very last people to be accused of ministerial diktat in cases of this kind. Before my time there was no appeals machinery whatever in outdoor mobility help. Nor was there any outdoor mobility help of any kind for any disabled child. I take some pride in the fact that it was this Government who first introduced an appeals machinery in mobility help for the disabled. In so doing we diminished ministerial power. One of our main purposes in doing this was to guarantee both consistency and fairness in the operation of the scheme. Without any appeals machinery, Robert Edmunds would have been denied mobility help and would have been without any right of appeal.

I must repeat to the House that the adjudicating authorities which decide cases of this sort are independent of the Secretary of State and of my Department. But, until they are clear as to the interpretation of the law, it is impossible for them to decide claims to mobility allowance consistently and fairly throughout the country.

A further misconception is that mobility allowance is the only benefit which can help people in the position of Mr. and Mrs. Edmunds. This again is quite untrue. The attendance allowance is available to any child over the age of two years who requires frequent attention or supervision.

The higher rate allowance, which the Government have very considerably increased, now stands at £14 a week. Furthermore, I understand that this higher rate allowance is currently being paid in respect of Robert.

Mr. Peter Walker

I do not understand the hon. Gentleman's argument that this action is being taken purely to establish a uniform pattern and that the Government hope that Robert will succeed in his appeal when the application to the tribunal states: The Secretary of State submits that a person who is physically able to walk but does not make effective use of his walking ability, or uses it in a bizarre or dangerous manner, because of mental limitation or disorder, cannot be said to be unable or virtually unable to walk. If the Secretary of State succeeds in that, he will have stopped Robert. Does the Secretary of State mean that?

Mr. Morris

I must correct the right hon. Gentleman on this point. He has quoted from a document which has now been entirely superseded. What we are concerned with is the reference to the National Insurance Commissioner on 25th October 1977, not the reference to the medical appeal tribunal on 24th March. The quotation that the right hon. Gentleman used is from the document of 24th March.

The right hon. Gentleman may like to know that the attendance allowance is payable to almost 16,000 people suffering from Down's syndrome. Altogether there are over 250,000 people receiving the allowance, at a total cost of about £170 million. In addition, as has been pointed Out to Mrs. Edmunds, in cases of hardship involving disabled people the Family Fund may be able to assist. The Government will have contributed £12.5 million to this fund by the end of 1978. I know that the House will agree that it really does not aid the cause of disabled people to further misconceptions of the sort I have dealt with in my speech so far.

The right hon. Gentleman has asked whether, if it is shown that Robert Edmunds is not entitled to the mobility allowance as the law now stands, we can consider amending the law to include Robert Edmunds and other children like him. The answer is "Yes". Requests for changing the criteria for entitlement to the allowance can certainly be considered. The effect of widening the criteria would, of course, be to bring in more people. That in turn would further increase expenditure. I must, therefore, make the point, as my right hon. Friend did yesterday in the House, that there are many competing claims for further spending.

We are now in process of doubling in less than a year the rate of mobility allowance to £10 a week, and it is hoped that this, together with help to be provided by the new agency, motability, will provide really effective outdoor mobility for a very great number of disabled people.

I have been under considerable pressure for some time to extend the scope of the allowance in a variety of ways, and the new developments are unlikely to ease that pressure. Claims for priority have been put forward on behalf of the blind and of people suffering from epilepsy and agoraphobia. A very strong claim has also been advanced on behalf of people who already clearly satisfy the existing medical criteria for the allowance but are precluded on grounds of age. All these competing claims must be considered, and we shall be glad to build on the new scheme as soon as we can.

It cannot be disputed that this Government have made available a very great deal of new help to the disabled. The overall value of additional cash resources already available, or pledged, for benefits for disabled people and their families amounts to about £2,000 million a year since we came into office. We want to do very much more and will do so as financial resources permit, taking into account services as well as cash benefit needs in a close and continuing scrutiny of priorities.

Meanwhile, we might all reflect that new benefits bring new problems. They sometimes not only bring much-needed assistance but also cause disappointment to those who do not qualify. New benefits must of necessity exclude people as well as include people. This is one of the penalties of breaking new ground by introducing new benefits. But the difficulties we meet at the margin of entitlement should not discourage us from trying to provide new help for those in special need. Moreover, we must not be diverted by criticism from seeking a clarification of the law to ensure that it is applied consistently and equitably.

The right hon. Gentleman has also raised the question of legal aid for appellants presenting cases to the independent adjudicating authorities under the Social Security Acts. This is, of course, a matter for the Law Officers. What I can say is that, in the view of my Department, proceedings before the independent adjudicating authorities must not be regarded as if they were adversarial proceedings before a judge.

In our view, the sole purpose of these proceedings, unlike others with which the right hon. Gentleman may be more familiar, is to establish whether the claimant has a right to a benefit which is prescribed in law and which Parliament considers he should have if he satisfies the relevant conditions. It is the duty of the independent adjudicating authorities to consider all aspects of a case before arriving at their decision, and I am confident that this is done. What is more, my right hon. Friend's letter to the right hon. Gentleman shows that we were prepared to present the case for Robert Edmunds and to do so as strongly as we could.

The right hon. Gentleman put to me the further question of the average time taken to decide appeals by the 10 national insurance commissioners. As he was informed in reply to his recent parliamentary Question, this is estimated at about seven and a half months from the lodging of the appeal. The time has lengthened from the period of five months that was usual in 1974. This is due to an increased propensity for claimants to appeal and to the effects of EEC regulations, among other causes. With regard to avoidable delays within the Department, I shall have what the right hon. Gentleman has said very carefully considered. Meanwhile, as he will know, a hearing has been fixed on 16th December for the case we have been discussing tonight.

As I have pointed out on many previous occasions, Ministers cannot influence the decisions of the independent adjudicating authorities, and the number of cases referred on behalf of the Secretary of State depend upon the decisions of the authorities themselves and not upon external considerations. As a matter of record, the number of cases referred, mostly cases under the Industrial Injuries Scheme, during the period in office of this Government amounts to approximately 3,000 fewer than those made during a similar time at the end of the period in office of the previous Government.

On the question of appeals, the right hon. Gentleman may recall that I legislated as a private Member in this important matter. In the Chronically Sick and Disabled Persons Act 1970 there is provision for speeding up war pensions appeals. The right hon. Gentleman will therefore appreciate that I am ready to have fully considered all that he has said tonight about the need to do as much as we can—

The Question having been proposed after Ten o'clock on Wednesday evening and the debate having continued for half an hour, Mr. DEPUTY SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at eleven minutes past Two o'clock.