HC Deb 15 June 1978 vol 951 cc1318-28

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

10.0 p.m.

Mr. James Kilfedder (Down, North)

I am grateful for the opportunity of bringing the case of Timothy McAleavey to the attention of the House. His mother had the application for a mobility allowance refused by the Department of Health and Social Security. Three times it was made, and on each occasion it was flatly rejected. An appeal was made to the medical appeal tribunal and it was dismissed.

Here, in my opinion, is an injustice to a relatively helpless, totally speechless, mentally retarded boy, who is now 12 years of age. He has been subject to epilepsy since birth, and from time to time he takes weak turns during which he may fall to the ground. Whenever he travels in a vehicle, he has to be strapped into a seat and supervised throughout the journey. The doctor in the clinical findings during his examination, stated that Timothy kept up a constant whimpering and groaning with occasional shouts. That is all this boy can do. He cannot speak.

This unfortunate boy's case cries out for compassionate treatment. I trust that my appeal on his behalf will arouse more than words of sympathy from the Government. That I can bring Timothy's case before the High Court of Parliament should provide some comfort to those people who, like myself, feel frustrated by the restrictions of this House and angered by the heavy hand of bureaucracy which has fallen on Northern Ireland with direct rule.

However, the effect of being able to argue Timothy's case in this Chamber is ruined by the fact that the Minister responsible for the Department of Health and Social Security is not present, and, indeed, cannot be present, because he is a peer and, therefore, a Member of another place. If ever I want a fresh reason for a major reform of the House of Lords—and who needs further argument for that proposition?—I shall be able to quote this instance. The Minister is not here. We have the Under-Secretary of State who is responsible for the Department of the Environment in Northern Ireland, but we do not have the Minister himself.

The Minister, in the penultimate paragraph of a letter of 28th February dealing with and dismissing an appeal that I made to him on Timothy's behalf, said: The decision of the Medical Appeal Tribunal is final. There is no provision in the Social Security (Northern Ireland) Act 1975 for a further appeal. The Minister is, of course, wrong, because there is the right of appeal to the High Court on a point of law by way of certiorari. But the Minister was recognising the reality of the situation that Mrs. McAleavey would not be able to pursue her appeal there, because no full legal aid would be forthcoming. Indeed, one of the sad facts of life is that many disabled people, like Timothy, are unable to receive legal aid to pursue their cases with qualified solicitors before medical appeal tribunals. I hope that one day that state of affairs will be remedied, and the sooner the better.

This situation places Timothy and others in Northern Ireland whose appeals have been or will be dismissed by the medical appeal tribunal in a worse position than their counterparts in the rest of the United Kingdom, where there is an appeal from the medical appeal tribunal to the national insurance commissioner from whose decision appeal may then lie to the High Court, also on a point of law.

This anomaly and injustice is seemingly because in Ulster the commissioner acts as chairman of the medical appeal tribunals. I call on the Government, for the sake of fair play, to change the law and to give Northern Ireland the same rights of appeal as exist in Great Britain. Since the Minister argues on the question of seat belts that the law should be the same throughout the United Kingdom, we should have his support in this matter.

In the letter of 28th February to which I referred, the Minister stated the obvious. He said that Mrs. McAleavey could reapply for a mobility allowance on Timothy's behalf at any time. But, instead of Mrs. McAleavey reapplying, the Minister or the Department should consult with the national insurance commissioner, with the object of the Department bringing an appeal. That appears to be a reasonable course of action to anyone who has scrutinised the findings of the last medical appeal tribunal and who is concerned about the disparity in the rights of appeal between Northern Ireland and Great Britain.

There have been Press reports about a case in which the right hon. Member for Worcester (Mr. Walker) was interested concerning a 12-year-old mongol boy, Robert Edmunds. There the equivalent Department in London, the Department of Health and Social Security, brought an appeal to the national insurance commissioner in that case. A Press report of that case was sent to the Minister to assist him and his Department. In that case the medical appeal tribunal had allowed the appeal. The Department appealed against that decision in order to have the law clarified.

I hope to show why the law should be clarified in Timothy's case. But perhaps the law, or its interpretation, is different in Northern Ireland. Even it it is, on grounds of parity of treatment there should be a change. Clearly, the two systems of social security benefit should operate as a single system throughout the United Kingdom with no differences between them.

The Press report showed what happened in the Robert Edmunds case. The medical appeal tribunal ruled that Robert Edmunds should get a mobility allowance because he suffered from mongolism and because that caused his physical handicap. The Department of Health and Social Security appealed against the decision to the national insurance commissioner—that is the appeal which is denied to people in Northern Ireland—on the ground that people who could walk but were prevented by mental infirmity from doing so should not get the allowance. The report stated: Earlier this month Mr. Alf Morris, the Minister for the Disabled, said he hoped that the boy would win the case. And if Robert lost his appeal the Government would consider changing the law. He was talking about a boy who suffers from mongolism and can walk only a few yards.

The medical appeal tribunal in Timothy McAleavey's case found as a fact that it is by reason only of his mental condition that he cannot be permitted to walk unaccompanied. It is true that the main condition giving rise to the lack of walking ability is due to gross mental retardation, as in the case of Robert Edmunds.

But the other medical conditions or consequential conditions cannot be ignored. The boy Timothy is doubly incontinent. At 12 years of age he wears a nappy, and it is not difficult to imagine the situation. How is it possible for such a youngster to walk as other fit children are able to walk? The whole concept of walking or being able to walk in his case is desperately and pathetically different from our concept of being able to walk. There is no comparison, no common ground, no meeting-place between the two concepts, and I am surprised that his appeal fell on the deaf ears of the Minister and the Department.

The evidence before the medical appeal tribunal states that Timothy likes to have his hand held when he is outside; he is never allowed out alone. That was what his mother told the tribunal. No one has denied it or shown it to be untrue. It is a simple fact of Timothy's existence. He has known no other since birth. Timothy cannot be allowed out on the road on his own. He has no road sense whatever. The House should remember that the boy is unable to speak and is able to understand only simple sentences.

The regulations clearly provide that if a person is able to walk with the aid of an artificial limb be can walk. He would thus not be entitled to a mobility allowance. The regulations are equally clear that where the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration of his health, he is treated as a person who is unable to walk.

In Timothy's case his physical disablement is not related to his ability to walk. His physical disability is a consequence of a mental disorder, and it is a mental disorder which restricts his physical ability to walk. It is a restraint to such a degree that Timothy is virtually unable to walk.

If another person who is now physically and mentally fit became subject to the infirmities, mental and otherwise, from which Timothy suffers, that person would clearly say, being able to speak, that he was not to be regarded as a person able to walk. We have to see the act or the action of walking as something that a person is able to do on his own with his own physical resources, assisted, if need be, by artificial aids but without the assistance of others.

In my view, the tribunal did not look sufficiently closely into the question of whether the exertion required of Timothy to undertake ordinary walking would constitute a danger to his life or cause a serious deterioration in his health. His mother claims that Timothy has a walking distance of only 15 yards. There is much comment in medical evidence—I shall not trouble the House by reading it out, but the Minister will have it all carefully stored away in his Civil Service brief—to substantiate her statement. The House, and in particular the Minister responsible for the Department of Health and Social Services, should accept it as being substantially true.

What does the insurance officer have to say about this? He says that the distance that a person may be able to progress on foot is not in itself conclusive to a claim for mobility allowance. That may well be so, but an undisputed statement that 15 yards is all the distance that a boy can walk must surely lead to the conclusion that the person is virtually unable to walk and, therefore, qualifies for the mobility allowance.

The regulations refer to the physical condition as a whole". This is where the medical appeal tribunal has, in my judgment, misdirected itself. It does not seem to have looked at Timothy's physical condition as a whole but has looked largely at circumstantial and subjective evidence about his walking ability in an unusual and exceptional setting—namely, in the corridor and examination room of the appeals board.

I do not believe that Parliament ever meant to exclude a person such as Timothy from mobility allowance. The boy is obviously virtually unable to walk in any meaningful sense. It is stretching the imagination and the meaning of language to find otherwise.

Therefore, I sincerely hope that, as a result of the arguments that I have put forward this evening, the Government will change their mind in this case and award the mobility allowance to this unfortunate young lad who suffers such tragic infirmities.

10.16 p.m.

The Under-Secretary of State for Northern Ireland (Mr. Ray Carter)

The case of Timothy McAleavey has been the subject of correspondence with my noble Friend Lord Melchett and, at the outset, I must make the point that it is not correct to say that the Department of Health and Social Services has refused a grant in this case. All decisions on mobility allowance are made by the independent statutory authorities.

The medical requirements for mobility allowance are that a person is unable or virtually unable to walk because of severe physical disablement and likely to remain so for at least a year and able to make use of the allowance. There are also requirements as to residence and presence in Northern Ireland.

Claims are decided in the first instance by an insurance officer, with a right of appeal on non-medical questions first to a local appeal tribunal and ultimately to the national insurance commissioner. These three adjudicating bodies are all independent statutory authorities, set up under the Social Security (Northern Ireland) Act 1975 and are in no way subject to control or direction by the Department of Health and Social Services or influenced by it.

However, where a claim has been disallowed on medical grounds—that is to say, the claimant is not held to be suffering from such disability that the person is unable to walk or is virtually unable to do so, or the disability is unlikely to persist for 12 months—an appeal may be made in the first instance to a medical board. This consists of two or more medical practitioners who are normally specialists, one of whom is appointed chairman If the claimant is not in agreement with the decision of the medical board, the claimant may appeal to a medical appeal tribunal. The medical appeal tribunal in Northern Ireland consists of one of the national insurance commissioners as chairman and two medical practitioners. The sole purpose of proceedings before the tribunal is to establish whether the claimant has a right to a benefit which is prescribed by law and which Parliament considers should be paid if the relevant conditions are satisfied. The decisions of the tribunal are final.

If a claim is disallowed on non-medical grounds—for example, it is late, or the claimant is of an age group not eligible to receive mobility allowance—the normal adjudicating procedures apply.

I turn to the specific case, Timothy McAleavey, which the hon. Member for Down, North (Mr. Kilfedder) has raised. Timothy is a 12-year-old boy who has been mentally retarded since birth. The initial claim to mobility allowance was made by his mother, Mrs. Sarah McAleavey, on 16th January 1977.

As a first step in processing the claim, Timothy was examined by a doctor on 23rd February 1977. The doctor's report included the comment that Timothy's balance was good and that he could walk normally, but that the main difficulty was that he was very nervous and restless and required constant supervision.

On receipt of the medical report the insurance officer on 3rd March 1977 formally disallowed the claim on the ground that Timothy is not suffering from physical disablement such that he is either unable to walk or virtually to do so. This decision is made having regard to a report from the medical practitioner to whom the question was referred". Mrs. McAleavey was not satisfied with the decision and she appealed to a medical board, which examined Timothy on 1st June 1977. The two doctors on the board reported their findings as: This boy can walk unsupported and in a virtually normal manner along the corridor and into rooms. There was no obvious disturbance of balance. He can go outside and when accompanied can walk a reasonable distance. The next step open to Mrs. McAleavey was to appeal to the medical appeal tribunal, which she did on 7th September 1977, on the grounds that Timothy was suffering from mental retardation and epilepsy since birth, that his walking distance was around 15 yards and that he required supervision all the time as he suffers from loss of balance. The appeal was heard on 7th December 1977, and Timothy was examined yet again, this time by the medical members of the tribunal, who are of consultant status. The chairman of the tribunal noted in its decision that the members of the Tribunal watched Timothy walking by himself about the room in which the hearing of this appeal took place and they noted his demeanour during the hearing". The tribunal recorded the following findings: We find that Timothy's physical condition is such that he is able to walk quite well notwithstanding his tendency to fits. It is by reason only of his mental condition that he cannot be permitted to walk unaccomanied. Under regulation 3 of the Social Security (Mobility Allowance) Regulations (Northern Ireland) 1975 entitlement to mobility allowance arises only if inability to walk results from physical incapacity. Inability to walk unaccompanied because of a mental condition does not qualify. Where, as here, the person concerned is a child the social or financial needs of the parents are not treated by the Regulations as giving a right to the allowance. This decision was final, as in Northern Ireland there is no right of appeal to a national insurance commissioner on a point of law from the decision of the medical appeal tribunal. This is because the chairmen of the medical appeal tribunal in Northern Ireland are also national insurance commissioners.

I know that it has previously been suggested in the House that standards applied in Northern Ireland are more strict and consequently less favourable to claimants than those applied in Great Britain. However, neither I nor the chairmen of the medical appeal tribunal believe that this is so.

This brings me to the conditions for entitlement to the allowance. There are many groups campaigning for an extension of the allowance to those who can walk but who have problems in getting about. There are the blind, the deaf, agoraphobics and epileptics. The Government have a great deal of sympathy for all of these groups, but at present resources are just not available to do all that we should like to do.

Finally, I should like to refer to the Robert Edmunds case. Robert is a 12 year-old boy suffering from Down's Syn- drome, and because of doubt as to his entitlement to mobility allowance his case was referred to the national insurance commissioner last December. The commissioner ruled that Robert was entitled to the payment but that similar doubtful cases would have to be dealt with individually.

My right hon. Friend the Secretary of State for Social Services, in reply to a Question on 2nd February 1978, said that he had carefully studied the legal and medical implications of the commissioner's decision in this case and proposed to place draft regulations before the National Insurance Advisory Committee and then to lay the regulations before the House as soon as possible.

The aim of the regulations will be to deal with the difficulties caused by the Robert Edmunds case and similar cases of persons who are unable, or virtually unable, to walk. Comparable regulations will be made for Northern Ireland by the Department of Health and Social Services for Northern Ireland and, as is intended in the rest of the United Kingdom, when these are made the Department will do all that it can to bring them to the attention of those in Northern Ireland who may be eligible and scrutinise those cases which have been disallowed since mobility allowance was introduced.

I should make it clear that this extension of mobility allowance will not cover Timothy McAleavey's case. What the new regulations will not do is to extend the scope of mobility allowance to people who can walk but who have outdoor mobility problems.

Mr. Kilfedder

The hon. Gentleman will agree that the case of Robert Edmunds was argued by legal representatives on behalf of the Department and Robert Edmunds. Will the Minister not further agree that the Department should lodge an appeal and thereby save some of the expenses which would accrue to Mrs. McAleavey, so that this case can be carefully argued and Timothy and others like him will have justice done or at least the satisfaction of knowing that their case has been fully argued by competent people before a judge?

Mr. Carter

As I have said, the Department is not the adjudicator. The appeal machinery that is well established, and is now well understood in Northern Ireland and the rest of the United Kingdom, is the area within which judgments are made as to the suitability or otherwise of applicants for the mobility allowance.

There are inevitably, as with all new benefits, some points of criticism, but I believe that the House as a whole will accept that this benefit is an important step forward in helping severely disabled people. New benefits bring new problems, and some people are disappointed because they are excluded. I am sorry that I cannot be more helpful to the hon. Member for Down, North since I know that he feels strongly about this case, as is evidenced by his taking the matter up personally with my noble Friend Lord Melchett and by raising the matter on the Adjournment to-night

Question put and agreed to.

Adjourned accordingly at twenty-eight minutes past Ten o'clock.