HC Deb 20 July 1981 vol 9 cc139-46

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

11.42 pm
Miss Jo Richardson (Barking)

This short debate is about discrimination—discrimination, moreover, against women with severe disabilities who have enough to cope with without having to battle against injustice, inequality and bureaucracy in claiming the non-contributory invalidity pension.

That pension was introduced by the previous Labour Government in 1975 for men and single women. To qualify, such persons have to show only that they are unable to do paid work. Married women were put into a different category. They also have to show that they cannot take up paid employment, but, because they are married women, the out-dated view that their first responsibility was the home led the Department of Health and Social Security to the view that they must pass a test to show that they could not look after that home.

Thus, the now notorious household duties test came into being. So difficult, however, did it prove to be to devise such a test that it was two years before the regulations spelling out what the test meant could be submitted to the national insurance advisory committee.

The committee accepted the DHSS's argument that married women regard caring for the home and family as their major occupation, in the same way as other people regard their paid employment. The committee did not take a view on whether the test was equitable or whether it was discriminatory but agreed that a flexible approach to the test should be adopted. So the HNCIP regulations came into force in 1977.

What a mess those regulations proved to be. Apart from the discriminatory aspect, they are hard to understand and complicated to administer. Their very flexibility has produced varying decisions. A woman applying for the pension must fill in a form stating how well she can clean, cook, do washing and shopping. Faced with these questions, many women often do not answer them realistically because their pride and independence make them put a good face on it. Therefore, many do not qualify for the pension.

Following the questionnaire, the DHSS has to have a medical report, usually from the woman's GP. That report must certify that she cannot do paid employment, and assesses her functional capacity to perform a range of movements and activities. The claim is then decided by the national insurance officer and, if it is refused, there is a right of appeal to the national insurance commissioner—but, of course, only on a point of law.

By September 1978, about 43,000 women had successfully claimed the pension, although in nearly 8 per cent. of cases, it was only after the appeal. When one considers that Professor Peter Townsend estimated that there were more than 2 million married women with some appreciable or severe incapacity, including nearly 200,000 under the age of 60, one sees what a tiny proportion have claimed and been successful.

I hope that the Minister will bring the House up to date tonight about how many such women have successfully claimed during, say, the past 12 months. In some cases when a pension was awarded, the DHSS itself appealed to the national insurance commissioner against the decision of the local tribunal to award HNCIP. One of those cases was heard in September 1978 by a tribunal of national insurance commissioners. The DHSS argued that, to qualify, a woman must establish that she is totally incapable, or only minimally capable, of performing household duties. In that appeal the commissioners, ruling against the DHSS, said that once it is found that what she is unable to do is substantial…then in our judgment she brings herself fairly and squarely within the terms of the regulations; and it is no longer material to consider what she is able to do, or whether that is also substantial. What followed this historic and far-reaching decision is now well known. The Department, frightened by the thought that more women would qualify and that that would result in a doubling, or even a trebling, of expenditure on the benefit, amended the regulations four days after the decision was announced—two of those days being a weekend, and Parliament being in recess to boot. If that was not indecent haste, I do not know what is. The amended regulations required a married women to prove that any housework which she could still do was insubstantial.

When the House reassembled after the Summer Recess, two Prayers, signed by over 150 Members of Parliament, were tabled against the amended regulations. To avoid a debate—and a defeat, as I think—the Labour Government decided to refer the interpretation of the household duties test back to MAC. I have no doubt the DHSS Ministers did battle over the financial implications while all this was going on, but the all-powerful Treasury mandarins won the day, and the extra cash was not forthcoming.

The present Secretary of State for Social Services—the then Opposition spokesman—was as angry as Labour Back Benchers. He denounced the Government's handling of the matter as deplorable. He said that it was close to "sharp practice". However, he got two promises from the Government: first, that time would be given for a debate and a vote on whatever came from NIAC; and secondly that no woman already receiving the benefit would lose her benefit before that debate had taken place.

Nineteen months later, in July 1980—almost exactly a year ago—NIAC reported. It accepted the Department's argument that the 1978 amendment regulations had simply restored the original intentions of the household duties test. However, impressed by the huge weight of the evidence which the committee had received, it then stepped outside its brief and proceeded to consider whether a separate test for married women was still jusifiable. It concluded: It seems to us that, whatever the arguments for applying a special test of this kind to married women in the past, these arguments must inevitably grow weaker in the future as employment outside the home becomes more and more the norm for married women … a test which applies only to married women will begin to seem increasingly inappropriate.

Many of us have recognised for a long time that employment outside the home has been the norm for millions of married women. But we are all pleased that the NIAC acknowledged a change of attitude. The committee considered a number of alternatives and proposed that an alternative test for all NCIP applicants based on an individual claimant's "normal activity" should be applied. But it was quite firm that, if such a test were impracticable, consideration should be given to phasing out the test altogether.

When the then Minister of State announced the publication of the report on 15 July 1980—a year ago—he referred only to the idea of an alternative test—not to the possibility of phasing out the existing one—and he proposed a departmental examination of the NIAC's suggestions.

Where was the promise obtained by the Secretary of State when he was Opposition spokesman in November 1978 for a Commons debate and a vote on the report? It was totally and deliberately forgotten. There has been continual pressure for a debate during the last 12 months, from the Disability Alliance, from the Campaign for Equal Rights for Disabled Women, and from the Labour Back Benches, notably my hon. Friend the Member for Eccles (Mr. Carter-Jones), who has done so much work on this issue, and there has been pressure for the publication of the Department's review. But to no avail. So much for that promise.

The second promise gained by the Secretary of State fell by the wayside almost immediately. The undertaking he obtained that no woman receiving HNCIP would lose her benefit before the Commons had debated the report was broken the very day after the NIAC report was published, when 15 women who had been affected by the amended regulations had their benefit withdrawn.

This has been a very long and sad story, because the people affected are those who, anyway, suffer very much and who have to have that bit of extra courage and determination to cope with daily problems which others take for granted. It is surely not lost on them, too, that this is the International Year of Disabled People, and the extra benefit to which I believe they are all entitled would have been a real way of making life a little easier and would also have contributed meaningfully to the spirit of this international year. Most disabled married women find that the theme of the year has a very hollow ring, I am sorry to say.

Ironically, it is often the most disabled women who fail to get through this humiliating test. Disabled people are very inventive and very practical and want to retain their physical independence. But, with this test, the more a married woman tries to help herself, the less likely it is that she will qualify. In fact, such a woman has to forget her self-respect—which is important to us all but particularly important to those who are handicapped—if she wants successfully to claim HNCIP. If she responds to attempts at rehabilitation by doctors, nurses, therapists and the like, she will find that she is unlikely to pass the test because she has responded to that rehabilitation.

The test has proved shameful and inhumane in itself. But the bureaucratic processes involved make it even more indefensible. It is hard enough for someone who is completely able-bodied to fight her way through a succession of appeals. It is doubly so if she is suffering from some incapacity.

I quote only one case out of many thousands which show how the test works. The woman concerned suffered from chronic bronchitis and hypertension. She could not walk even short distances or climb stairs. She could do no shopping, cooking, heavy cleaning or laundry. She could do only light cleaning and rinse the odd cup and saucer. She received HNCIP from November 1977 until the regulations were amended in September 1978, though only after an appeal. She reapplied for the benefit under the amended regulations and was awarded it some time later. In the meantime she had died. That may seem dramatic, but it happened. The extra benefit can go to help women to afford extra equipment, for example, to help them, and their families to manage, or perhaps to go towards a home help now that there is a charge because of the public expenditure cuts.

Aside from the humiliation, distress, and even the tragedy, there is the basic discrimination against disabled married women. Many of them have had employment and recent employment, yet they have to prove twice over that they should qualify for benefit. We are living in the 1980s. We are as a society trying to outlaw discrimination wherever we find it. Cost considerations should not stand in the way of simple rights and there would probably, in any event, be some savings, from overlapping benefits.

I do not hold out much hope that the Government will listen to this appeal from disabled married women. What I am saying reflects their views. However, I hope that the Government will at least publish the DHSS review. Let us have a full debate so that we may know the views of the Department. Let us remember that 2 million vulnerable women are involved. We should not turn our backs on them, and particularly not this year.

11.57 pm
The Under-Secretary of State for Health and Social Security (Mrs. Lynda Chalker)

The hon. Member for Barking (Miss Richardson) is a formidable advocate of the rights of women—married and unmarried—and she has an honourable and consistent record of opposition to the household duties test. She has a right to raise the subject in the way in which she has done tonight—a much greater right, if I may say so, than some of her right hon. and hon. Friends who, to hear them nowadays, cannot have been around when the Government of whom they were members or supporters introduced the household duties test. She knows that the test had a difficult beginning. I have much sympathy with many of her remarks.

The hon. Lady has given a clear explanation of the rules for the non-contributory invalidity pension—I hope that I may now be forgiven for abbreviating it to NCIP—and of the nature of the extra condition, the household duties test, which married women have to satisfy. She has reminded us that NCIP was included in the Social Security Act 1975 and that men and single women started to receive it in the autumn of that year. However, two years passed and it was not until 1977 that the regulations defining normal household duties came into force and the benefit was extended to married women who could satisfy the household duties test.

The hon. Member regards the household duties test, as she has always done, as blatant discrimination against married women. I am not going to argue that point. She is perfectly entitled to say that a qualifying condition that is imposed on married women but not on other groups is discriminatory in the normal sense of the word, regardless of any legal definition.

But without this apparent discrimination, could the previous Government have included married women in their NCIP plans? The White Paper which they published in 1974, entitled "Social Security Provision for the Chronically Sick and Disabled", clearly identified the problems of both groups—housewives who were too disabled to cope with their household work and people who could not get out to work yet had no contribution record. But although their problems were recognised the previous Government tried to leave married women out of the 1975 Act. Then, when forced to include the married women by Back Bench and Opposition pressure, they added the qualification of the household duties test. It took nearly two more years to prepare the regulations that brought married women into the scheme.

I am not criticising the previous Government. I merely ask that those who criticise the concept of an additional test for housewives whether it would have been possible in practice to bring in married women on the same terms as everyone else or whether it would even have been right to do so, when many of them had made their homes and families their only career, and many of those who had worked had opted out of paying full contributions to cover themselves for sickness benefits.

To be fair to the Labour Government, the introduction of that household duties test was consistent with their White Paper of 1974, which said: Housewives in this context are essentially married women who do not have paid work and whose normal job is in the home. It went on to identify as a gap in social security provision as a whole the absence of help for those hosewives whose disablement was such that they had never been able to take unpaid work outside the home or to do their household work.

One thing is certain. It would have been financially impossible to include married women simply on the basis of incapacity for paid work. To have done so then would have brought in nearly 300,000 married women instead of the 40,000 for whom the Labour Government budgeted, and it would have more than doubled the cost of the NCIP scheme as a whole.

The hon. Lady reminded us tonight of what the same Labour Government did a year later, after the Social Security Commissioners had handed down decisions which would have made the household duties test easier to satisfy. They rushed through those amending regulations in record time—in four days over a weekend—because of the financial implications. When the hon. Lady complains about the time that my Department is now taking to carry out the review of the household duties test, I hope that she will reflect on these and other episodes in the history of the test.

When my right hon. Friend the Member for Daventry (Mr. Prentice) announced a year ago that the review would take place, he described the test as having been a controversial one ever since its introduction. The hon. Lady might think that an understatement, but let us look at the record. First, the Labour Government in 1975 tried to duck the issue of a non-contributory benefit for married women. I remember it well. I was a Back-Bench member of the Committee at the time. It took nearly two years to make the regulations. Then, as the hon. Lady said, in 1978 the amending regulations were rushed through because the Social Security Commissioners had interpreted the original ones more leniently than had been expected.

Then belatedly, under great pressure from both sides of the House, the question was referred to the National Insurance Advisory Committee. It then considered the regulations and the test as a whole for 19 months. At the end of that time it did not produce a convincing alternative apart from the suggestion that the test should be phased out altogether over a period. Its main recommendation was that the Department should re-examine the test; in effect, it was inviting the Department to find an alternative solution to the problem which the committee could not find.

Abolishing the test, whether it was done by stages or not, would eventually cost well over £200 million at current prices, because the result would simply be to extend the NCIP to married women at the same time as men and single women. The unpalatable fact is that much of this would go to women who had been out of the employment field for many years, or who had never regarded themselves as family breadwinners. The advisory committee and other groups have made alternative suggestions, but none has come up with a completely acceptable solution to the problem of fitting married women into a scheme of this kind which is fair to them and to everone else.

I should like to say a few words about the review that is going on at the moment. The problem of how to treat married women fairly is not unique to the United Kingdom. We have been studying what other countries do—something that the NIAC report suggested would be useful. Our correspondence with foreign countries has revealed one or two things which will be of interest to the hon. Lady. Some countries have a benefit which is comparable with HNCIP; others have something similar, but with stricter qualifying conditions or with an element of means testing. Those which have such benefits face problems particularly with assessment. The Finns and the Swedes have both stated that the concept of assessment for incapacity for housework can be difficult and that their procedures had failings. The Danish authorities are in fact, reviewing their own benefit. So I do not believe that there is anything to be gained by presenting the issue as an evil peculiar to this country or to the Government. A sense of perspective shows that it is a problem peculiar to this kind of benefit, and it is one that we have to solve.

It is not surprising, then, that officials in the DHSS are having to make a long and painstaking study of the problem. I hope that we shall find an answer which will be acceptable to all concerned, but I must also sound a warning that any change in the rules which would enjoy general approval would be likely to involve additional cost, and they, of course, we should be faced, as always, with choosing our priorities.

The hon. Lady and other hon. Members press for an early debate. They refer to the fact that my right hon. Friend the Secretary of State, when he was chief Opposition spokesman on the subject, said that we should debate the matter. It is not in my gift to organise a debate, but it strikes me that the present may not be the best moment.

I have heard it said that my ministerial colleagues and I have changed our tune since our criticisms in Opposition of the manner in which the previous Administration amended the regulations. That is ignoring the context of the amendment. After the tribunal of commissioners confirmed the new interpretation of the household duties test, the then Government moved very fast, as has been said.

When the amendments were rushed through the House over the weekend, the normal procedures for referring regulations to the NIAC were ignored. Any responsible Opposition would have been perturbed by such a move. We criticised that method of transacting business and legislating for benefit which can affect thousands of people, and we succeeded in having the regulation referred to the advisory committee, thus ensuring that the proper authority fully considered the issue. When it reported that the regulations confirmed the original intention of the benefit, our immediate suspicions were allayed. The previous Administration acted hastily perhaps, but not improperly.

However, following the publication of the report, with its wider recommendation, it was suggested that there should be a debate, just as it is now. As I explained, we accept the committee's recommendation to view the test, and I shall make sure that I bring to the attention of my right hon. Friend the Leader of the House the comments of all those who press for a debate. However, I believe that we should wait at least to see the Government's conclusions on the review, which will be the best time for informed discussion.

I have already stated that we are pressing ahead with the review. It will not be completed in time for an announcement before the recess, but I accept the concern of the hon. Lady and others that it should be completed within a reasonable time. My hon. Friend the Minister for Social Security has already promised that the outcome of the review will be brought before the House. I ask the House to accept my assurance that we are treating the matter with as much urgency as is consistent with the need to find a lasting solution.

The hon. Lady also pointed out that there had been persons who had sustained losses following the publication of the NIAC report. I was aware that they may have been, and I shall look further into the matter.

She also said that we should vote on the report, but, as I said about the debate, it would seem sensible to await the outcome of the review, which we are pursuing most urgently. We can then debate the matter and, if wished, vote on it.

Further than that I cannot satisfy the hon. Lady, but I fully understand her point that the harder a disabled woman tries to do those things that she wants to do about her home, the more likely she is not to be entitled to benefit. It is one of the ironies for disabled people that when we wish to help them and they wish above all to help themselves and not to be dependent where they can possibly be independent they sometimes fall on the wrong side of the line of entitlement.

I can only reassure the hon. Lady that everything that she has said, and that other hon. Members and many of the groups outside have said, is being considered, alongside the review of what is going on in other countries and how we tackle one of the most difficult problems of entitlement that I have come across in all the seven and a half years that I have been dealing with social security benefits.

Question put and agreed to.

Adjourned accordingly at ten minutes past Twelve o'clock.