§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Maclean.]
§ 10 pm
§ Mr. Frank Field (Birkenhead)I thank you, Mr. Speaker, for choosing this subject as the Adjournment debate for this evening. In speaking on the Adjournment of the House, I wish to draw attention to the plight of one of my constituents, Mrs. Moran, in claiming the attendance allowance. In so doing, I wish to refer to three heroes. The first is obviously Mrs. Moran herself who, over the past six years, has attempted to gain the full rate of attendance allowance. The second is Mr. Moran, who has given such an extraordinary degree of love and attention to his wife. The third is Nick Warren. I am unique in having a legal unit in my constituency which helps me with my constituents' legal grievances. That in itself would be worth bringing to the attention of the House, but the fact that that unit is staffed by the most talented welfare rights lawyer makes it doubly so and, I am sure, a pleasurable pain in the flesh of the Government.
I begin by recalling some facts about Mrs. Moran. First, however, I must say how pleased I am to see my neighbour, the hon. Member for Wirral, South (Mr. Porter), in the Chamber. My constituent, Mrs. Moran, has suffered from epilepsy since she was 17. She now also suffers from Parkinson's disease and part of her life is spent in hospital. She is also in danger from wounds and bears on her face severe burns. However, she is lucky in having the support of her family and especially of Mr. Moran. It is not going too far to say that Mr. Moran's care and attention has ensured that Mrs. Moran is alive today. Despite all those facts, however, Mrs. Moran has been refused the higher rate of attendance allowance, although there is no lack of medical evidence to support her claim.
Tonight I share one of the Minister's advantages, in that I have a prepared brief from Nick Warren to which I shall pay careful attention in presenting the details of the case to the Minister and to the House. In 1983 the attendance allowance board sent a Dr. Husain to interview Mrs. Moran. He reported back that she could not safely be left at night because she might have a fit and choke. About a year later the board sent another doctor, Dr. Mann, who agreed with the first doctor sent by the attendance allowance board.
Dr. Raymond, the family's general practitioner, has reported to the attendance allowance board in the following terms:
This lady has the most severe and least well controlled epilepsy of any patient on my list, and I am quite sure that she requires the full time care and supervision provided by her husband.Dr. Chadwick, a consultant neurologist at Walton hospital in Liverpool, has also examined Mrs. Moran and has expressed the following opinion:It would seem irresponsible to underestimate the anxiety generated by her problem for a caring family. Their desire to be able to provide round the clock supervision is entirely understandable and, in my view in this particular instance, entirely reasonable.The doctor who took the decision for the attendance allowance board also accepted that a risk of substantial danger attended any and every fit which was accompanied 1189 by a loss of consciousness and that during her fits, of which she had no warning, Mrs. Moran needed supervision to avoid danger.What does the law say on this point? Why did that doctor not award the higher rate of attendance allowance? Following general attendance allowance board guidance, he refused the higher rate because he did not accept that a person who was merely on standby, ready to take action when a fit came on, could be described as giving supervision. Mrs. Moran challenged that interpretation of the law and was successful in the Court of Appeal in March 1987. The court sent the case back to the attendance allowance board for a fresh decision according to law. Regrettably, the Government chose to reverse the court's decision so far as it concerned night-time supervision by section 1 of the Social Security Act 1988. Fortunately, however, the old law still applies to Mrs. Moran's claim and to all other claims and reviews prior to the Royal Assent. The Minister who is here now and who answered that debate made it very clear in the House and in Committee that that was so, and I am grateful to him for that.
One might have hoped that that would have been the end of the story when the case was sent back from the Court of Appeal and that the board would have seen the error of its ways and awarded Mrs. Moran the full attendance allowance, but it did not do so. Looking at the case again, it altered its doctor's previous finding that there was a risk attached to an epileptic fit and decided that the risk of any harm coming to a person from an epileptic fit at night was so remote as not to be worthy of attention. That was, to put it mildly, an odd conclusion. Most hon. Members will have had the experience, unhappily, of constituents with a relative who died in a fit. The decision ran contrary to medical evidence which I mentioned earlier, and it ran contrary to the view that the board had expressed previously in relation to all claims involving people with epilepsy. It also contradicted the evidence of Mr. Richard Pugh, the director of social work for the British Epilepsy Association, who told the board in a statement that a rough search through his files for the past two years had produced 12 examples of people found dead in bed as a result of epileptic fits.
Mrs. Moran has appealed against the decision of the attendance allowance board. There is no appeal from the board's decision on questions of fact—a point to which I shall come in a moment. Only if there is an error of law can the social security commissioners intervene. Fortunately for Mrs. Moran — and, I believe, fortunately for justice —the decision was littered with errors of law. A tribunal of commissioners last month set aside the board's decision due to various breaches of the rules of natural justice and errors of law in the board's approach to the question of what risks should be disregarded—a point that lawyers describe as remoteness.
There are now some important questions for the Minister which relate not just to Mrs. Moran's case, important though that is, but to the general performance of the attendance allowance board.
First, I want to put to the Minister the claim of Mrs. Moran herself. This has now been referred back to the same attendance allowance board which wrongly refused her twice. This time it intends to hold an oral hearing of the 1190 case, and the Secretary of State will be represented at that hearing. The finest words that the Minister could say today are that the Secretary of State's representative at that hearing will invite the board to award Mrs. Moran the 24-hour attendance allowance for life—I accept that the Government's representative cannot himself award the allowance, but he can support Mrs. Moran's claim. Will the Government do that?
Secondly, this case highlights the difficulties that claimants face when there is no appeal on questions of fact against the attendance allowance board's decision. At the hearing before the social security commissioners it was said that the board considered that there was no risk of death from an epileptic fit at night. The only evidence produced to support that extraordinary assertion was a study in 1979 of eight people with epilepsy in one district of Pittsburgh, Pennsylvania. No evidence from this country was presented at that hearing, and only two of the eight were recorded as having died in bed. It is shocking that a general policy should be overturned on such slender evidence. The board might not have been in such a hurry to reach that conclusion had it known that there was an independent right of appeal on questions of fact and that its findings would have to be justified by the evidence.
The Minister should introduce a right of appeal on attendance allowance decisions to the social security appeal tribunal, which consists of a lawyer and two ordinary members of the public who are well used to weighing medical evidence. Perhaps equally important, they are used to having oral hearings at which a patient or carer can explain the case in ordinary language. The attendance allowance system of adjudication is practically unique within the DSS in hardly ever offering the citizen a chance to explain his or her case in person. The appeal would do precisely that.
The third question is perhaps more immediate: what about the other cases involving people with epilepsy which have presumably been decided by the board or its delegates in the same erroneous way? I am pleased to say that several cases were held back by the Government pending the first Moran decision. Will the Minister check the files and invite and support late applications for appeal by claimants who have or may have been wrongly refused the allowance?
Fourthly, the problem is wider still because the decision of the tribunal of commissioners has cast doubt on the guidance that the attendance allowance board has given to doctors who take decisions concerning the legal question of remoteness. In paragraph 5.12.4 of the guidance, the board has told doctors that they can disregard hazards which are unlikely to occur. That is unlawful, because it takes no account of small risks with disastrous consequences. An event might be unlikely in the sense that it has, say, only a 5 per cent. chance of happening, but if that 5 per cent. chance involves someone else's or one's own death it would be sensible and reasonable to take precautions against it. It appears, therefore, that many other cases have been wrongly decided on the issue of remoteness since the board issued its guidance last June. It follows that the benefit has not been hitting its target—a particular aim of the Government's social policy. What does the Minister intend to do in such cases?
I hope that the Minister will be able to give assurances that Mrs. Moran will win her private fight for justice. I hope that he will also give an assurance that the files will 1191 be searched to ensure that justice is done in other cases. I hope that the Minister will give the further assurance that there will be change in future.
I end my speech with one last question. It is not my question but that of Mr. Moran who is closely following the debate. I asked him what one message he wished me to give the Minister before the Minister replied to the debate on the long battle that Mr. Moran's wife had been fighting for the attendance allowance. Mr. Moran's question can be put quite simply. He recalled, as I have recalled, all the events—including going to the Court of Appeal where he and Mrs. Moran went in their fight for justice—and his question was, "Where else do we have to go for justice?" I hope that the Minister will answer that question and start giving justice to Mrs. Moran.
§ Mr. Barry Porter (Wirral, South)rose—
§ Mr. Deputy Speaker (Sir Paul Dean)Does the hon. Member for Wirral, South (Mr. Porter) have the agreement of the hon. Member for Birkenhead (Mr. Field) and the Minister to speak?
§ Mr. Frank FieldYes.
§ Mr. PorterI share two things with the hon. Member of Birkenhead (Mr. Field). First, we both live in Birkenhead. He has the privilege of being my Member of Parliament. He has made a powerful case in respect of Mrs. Moran. I do not wish to repeat what he has already advanced. His case does not seem to create a precedent which would involve enormous public expenditure. It would involve justice, which the Government should accept. It would not involve the Government in any great difficulty.
Secondly, I have the privilege of sharing with my Member of Parliament a trusteeship arranged by Mr. Nicholas Warren who deals, in Birkenhead and in appropriate places, with all sorts of difficulties that people have with the Department of Social Security. The trusteeship has been an enormous success. I pay tribute to my Member of Parliament and to Mr. Warren, a solicitor who does not need a large amount of money to do anything.
It is important that justice is seen to be done and that the Government show compassion. That can be done without great expense to the public purse. Surely, on the arguments advanced by my Member of Parliament, the difficulty can, should and, I trust, will be overcome.
§ The Minister for Social Security (Mr. Nicholas Scott)I am grateful to the hon. Member for Birkenhead (Mr. Field) for raising this case. It has been in the frame, as it were, ever since I assumed my present responsibilities. I have talked to a number of holders of my office and to those who were Parliamentary Secretaries in the Department. They recall the long-running issue involved in Mrs. Moran's claim for a higher rate of attendance allowance. I acknowledge that my hon. Friend the Member for Wirral, South (Mr. Porter) has weighed in behind the hon. Gentleman.
Like the hon. Member for Birkenhead, I cannot but pay tribute to Mrs Moran and to Mr. Moran, who, as he said, 1192 is following the debate with great interest, for the way that they have sustained their case. I also pay tribute to Nick Warren, despite the difficulties that he may from time to time have caused for those in the Department with responsibility for these matters. He has a high reputation in this area.
The first thing I have to say will be disappointing, but I cannot think that it will be any surprise to the House to know that, whatever sympathy I have for Mrs. Moran—the hon. Member for Birkenhead knows of my sympathy—I cannot make any decision on her claim. We have a system of attendance allowance claims, in common with claims for all other social security benefits, based on independent adjudicating authorities. The allowance is awarded, or disallowed, by an adjudication officer who is wholly independent of Ministers and civil servants in the Department.
Claimants who are dissatisfied with the decisions of adjudication officers can appeal to a social security appeal tribunal and thence, with leave, to the social security commissioner on a point of law. It is important for the House to realise that the adjudication officer and the SSAT can award an allowance only for the period and at the rate specified on a certificate of attendance needs issued by the attendance allowance board or by a medical practitioner who has been delegated to act on behalf of the board. We have to accept that those basic rules cannot be altered by a Minister, however sympathetic he may be towards an individual case.
Review decisions of the board or its delegates are themselves subject to the same rights of review as initial decisions. Review decisions can also be challenged by way of an appeal on a question of law to the social security commissioner. We cannot decide claims, nor can we alter or try to affect decisions given by the board or its delegates about whether the medical criteria for the attendance are satisfied in individual cases.
The hon. Gentleman raised the record of the hoard. I believe that the record of achievement of the attendance allowance scheme over the years has vindicated Parliament's decision to entrust those decisions to the board and to the various appeal procedures that are available to claimants.
The board has the duty of applying the criteria in individual cases and to use its expertise and judgment. It is made up of eminent clinicians, expert in various fields of medicine, as well as lay people with interests and insight into the needs of disabled people. Its delegates are usually practising or retired general practitioners who, of course, have practical experience of the effects of disability in all its forms on the daily lives of disabled people.
I shall set Mrs. Moran's case in the wider context. The decisions of the board have been instrumental in the award of attendance allowance to more than 2 million people, and some 65 per cent. of all initial claims made since 1E971 have been favourable. Today, about 760,000 people are in receipt of attendance allowance. I am certainly not claiming at this Dispatch Box that the board always gets it right first time, or that the needs of individual disabled people do not change over time. That is why the arrangements for the review of the decisions on the medical criteria in individual cases must take account of both those eventualities.
On the face of it, one could say that the number of occasions when changes have been made to that initial decision—approaching 20,000 cases over the years—looks 1193 a lot, but it represents only 6.4 per cent. of the number of decisions on new attendance allowance claims in 1987. For the board and its delegates to have given decisions on initial claims which satisfy over 90 per cent. of claimants is a remarkable achievement. It is all the more remarkable when one bears in mind that claimants are encouraged to seek review if they are dissatisfied when details of the decisions of the board and its delegates are sent to them.
There is rightly every incentive for dissatisfied claimants to exercise that right and to seek review. Attendance allowance is well worth receiving in its own right. It is a well targeted benefit. It provides welcome help with the extra costs arising from long-term disability, but it also provides a passport to the income support disability premium and severe disability premium and a passport through the disablement test for severe disablement allowance; and, of course, it is a precondition for payment of invalid care allowance. It is therefore an important passport. There is every incentive for those who may be turned down to seek a review. I do not complain about that at all, because I am anxious to ensure that all those who are entitled, either to the lower or to the higher rate, get that entitlement.
The relevant change of circumstances reviews are an important part of the process. Reviews on that ground relate exclusively to people who have been awarded the lower rate allowance and whose attendance needs have changed, which is relevant to Mrs. Moran's circumstances. In 1987, relevant change of circumstances reviews resulted in some 24,000 decisons being changed. There is therefore no automatic tendency on review to turn down cases which are raised and for which reviews are asked. We all know that the needs of disabled people are not fixed. Their circumstances genuinely change from year to year, and, indeed, over even shorter time scales. It is right that there should be a system that makes it possible to review the changes and to see whether the higher rate allowance may be appropriate because of the changed circumstances.
One of the most important points raised by the hon. Gentleman was that the board had somehow changed its position on the risks attached to epileptic fits, which especially applies to Mrs. Moran's case. Perhaps, in response, I could quote what I believe to be an especially relevant passage from the recent decision of the tribunal of commissoners explaining why that was a reasonable thing for the board to do:
Now had the factual situation as found by the Board remained as it was at the time of the Commissioner's decision of 30 April 1986 then, in the light of the guidance of the Court of Appeal's judgment, the claimant might reasonably have expected her claim to succeed.In those circumstances it would be entirely understandable for the claimant to feel that the Board have to use a colloquialism 'moved the goalposts'. But of course that would be an entirely wrong way to look at it. It is the function of the Board to use their accumulated medical knowledge and expertise objectively to assess each case before them, and it is their right and, indeed their duty, to take account of any advances and other changes in such knowledge so that the opinions they express reflect the most up-to-date established thinking.However, the relevant paragraph goes on to explain the commissioner's view that this principle should be subject to an obligation on the board to explain why it revised or modified a long-established approach. In that connection, I shall pick up the question put by the hon. Member for 1194 Birkenhead about the American evidence which was quoted by the board in support of its contention about the risk of death in bed from epilepsy.The board may wish to respond to the commissioner's view about the need for explanation when it comes to review Mrs. Moran's case once again. I understand that doctors often have to interpret published scientific evidence, which may not be conclusive in the light of their own clinical experience, when deciding on the management of their patients. In those circumstances, references may be quoted more by way of illustration than as conclusive proof. In that respect, the board is no exception in reaching a view on the risks attached to epileptic fits in bed at night.
That leads me to give the only answer I can give to the two other questions posed by the hon. Gentleman. It is because we have appointed the board as a source of expert advice, based on accumulated experience and the ability to interpret medical experience, that, despite the hon. Gentleman's understandable plea for the Secretary of State to be involved in the next hearing, it would be inappropriate for my right hon. Friend to express to the board the simple and unequivocal support for Mrs. Moran's claim as proposed by the hon. Gentleman.
I do not believe there would be any point in securing the service of expert advisers and adjudicators if one then told them what to do in their sphere of expert judgment. For similar reasons, I doubt that it would necessarily serve the claimants' interests to seek to put one set of experts on top of another. There is already provision for appeal to the commissioners on matters of law and I do not believe it would necessarily improve matters to impose a higher tier of medical adjudication.
The hon. Gentleman asked about the commissioner's comments on the board's guidance to its delegated doctors and about earlier cases decided under these guidelines. The board will undoubtedly be reconsidering those guidelines in view of what the tribunal of commissioners said in its recent decision. In the event that the board revises those guidelines, it will obviously be necessary for consideration to be given to the implications for the previous cases to which the hon. Gentleman rightly drew attention.
I recognise that Mrs. Moran's case has been at issue for a long time. I hope that the hon. Member for Birkenhead and my hon. Friend the Member for Wirral, South will recognise that that is the result of fundamental questions that have been raised in the course of that case. Whatever sympathy I have for the particular circumstances of Mr. and Mrs. Moran—I assure the hon. Gentleman of my sympathy—it was inevitable that that case would be protracted because of its importance to the claimant and to the Department. Therefore, some delay and an extension of the consideration of the case was inevitable. The Department and the independent adjudicating authority have all been involved in that.
Let us consider the circumstances in which it will be for the attendance allowance board again to reconsider Mrs. Moran's case in the light of the guidance on relevant legal issues that has been handed down by the Appeal Court and the social security commissioners. I understand that, at present, the board is discussing with Mrs. Moran's representatives a suitable date when it might be able to hear her case. I am confident that everyone present in the Chamber hopes that that hearing, combined with guidance from the courts and the commissioners and the board's expertise on the medical issues involved, and the 1195 subsequent decision—I cannot prejudge what it will be —will he instrumental in bringing Mrs. Moran's case to a satisfactory conclusion.
1196 Question put and agreed to.
Adjourned accordingly at twenty-nine minutes past Ten o'clock.