TEST OF INCAPACITY FOR WORK (Hansard, 21 June 1994)

§ Mr. Scott
I beg to move, That this House doth agree with the Lords in the said amendment.

§ Mr. Deputy Speaker
With this it will be convenient to take Lords amendments Nos. 20 to 23.

§ Mr. Scott
These amendments extend the own-occupation test to make it more reasonable and to clarify its application.
The Bill introduces two tests of incapacity. The own-occupation test will apply to most people at the onset of their period of sickness and will be applied for the first 28 weeks of incapacity. In essence, it is a test of whether people can do their own job and it mirrors the present system.
We will have to decide who can qualify for the own-occupation test. When the Bill was considered in Standing Committee we proposed that if someone had 150 worked for more than eight weeks in the past 12 they should undergo the own-occupation test. If someone did not fulfil that requirement, they should undergo the all-work test at the beginning of their incapacity—the latter is the new, functional medical test, with which those hon. Members who have taken part in our discussions will be familiar.
In Committee, the argument was advanced that the qualifying period for the own-occupation test was unreasonable and I undertook to consider the matter further. On reflection, we came to the conclusion that the qualification was less than totally reasonable. It would have meant that someone who had been in work for 20 years and was made redundant would face the all-work test immediately if he or she fell sick after only five weeks of redundancy.
In deciding the qualification for the own-occupation test, our aim was to produce a simple, workable definition that would ensure that as many people as possible underwent the own-occupation test when they became sick. Only in exceptional circumstances did we expect anyone to have to undergo the all-work test at that stage.
The amendment means that someone who has undertaken an occupation for more than eight weeks in the past 21 weeks will face the own-occupation test at the onset of incapacity, which is a much more reasonable approach.
Amendment No. 20 is purely technical and serves to clarify the drafting of section 171B(4). It applies either to disability working allowance or the training long-linking rule, as it applies to a person, where we do not want the long-linking rule to affect the test of incapacity that is applied. Section 171B(4) as it stands could be interpreted to have the effect that, where a person had been working and receiving DWA and made a further claim to benefit, he would be subject to the all-work test even though he had clearly been working for more than eight weeks prior to the claim. That is not what we want and amendment No. 20 puts the issue beyond all doubt, ensuring that the own-occupation test is applied where appropriate. That will be the second beneficial move.
Amendments Nos. 21 and 22 are also designed to clarify the application of the own-occupation test. As I explained before, in the majority of cases, for the first 28 weeks, a person's incapacity will be measured against his own occupation. We want as many people as possible to undergo the own-occupation test at the start of their period of sickness. We always intended that people on training courses—whether paid or unpaid—and who would return to their previous job or employer would be covered by the provision.
Amendment No. 22 is designed to ensure that we have such powers, and amendment No. 21 is a small technical amendment required for the paragraph proposed by amendment No. 22 to be inserted. Amendment No. 23 ensures that we have the necessary powers to ensure that the provision to apply to people who had more than one job during the 21-week period, or who had more than one job at the same time, are also included within this provision.
I understand the concerns which hon. Members have about the own-occupation test and the all-work test, but I hope that they will at least agree that the amendments are important improvements to the own-occupation test.

§ Mr. Bradley
We have now come to the amendments where I thought that we would be having the debate on the 151 medical test. But as we had a mini-debate on that—with your indulgence, Mr. Deputy Speaker—I do not intend to range over all the issues of concern which were raised by the hon. Member for Stratford-on-Avon (Mr. Howarth), which I fully support. However, it seems yet again that this matter has become a great yawning gap in the legislation.
It is the most difficult area for us to debate effectively, even at this late stage in the passing of the legislation, because as yet we have no details of what the medical test will be. We do not know whether it will apply to the own-occupation or to the all-work test, or whether it refers to work at all. As we know, yet again there is no definition of work in the Bill, let alone the other definitions about which we previously expressed concern as they were not on the face of the Bill.
I shall not range over all the concerns about the medical test to which we will clearly return when the medical test is published and goes out for further consultation. I would just seek some clarification about where work on the medical test itself has got to. I am aware that the so-called panel of experts has had meetings. Has that panel now completed its deliberations, or is it having further meetings to consider and refine further this document for which we are awaiting?
Will the revised medical test which is to go out for consultation still be published in August of this year? If and when it is published, how will consultation on the revised document be undertaken? What organisations and individuals will be consulted on that test?
5.15 pm
Crucially, can the Minister give me some guidance on how the Government intend to respond to the clear divergence of opinion within the so-called panel of experts about the way in which the test is being put together? The Minister is well aware of a letter which was sent to the noble Lord Astor from a number of organisations which are involved in the new medical test. They have sought clarification on one point upon which the Minister may want to comment.
The letter, dated 6 May 1994, states: It really will not be acceptable if panellists' concerns about various aspects of the test are not acknowledged in the final report of the consultation and departmental evaluation of the new test". Will their differing views about how the test can operate in practice be presented in the final report? The letter continues: We seek your assurance that there will be an opportunity to address our concerns, for example in a special section of the report. If the deliberations have moved on to a point where the revised medical test is about to be finalised—it is clear that there are a lot of differences of opinion about how the functional test will apply in practice—will those panellists be afforded the opportunity before the report is published to express their views further?
Will those differences of opinion be expressed in the report or do the Government intend to try to impose their consensual view upon the panel of experts to come out with a report which they believe reflects all the issues that the 80 panellists are expressing? These are very important matters on which we must judge the medical test within the legislation.
I hope that the Minister can give the House some assurances about the progress and presentation of that test 152 and how it will be then further debated, and the issues of concern brought back to the Floor of the House through regulation for our further consideration.

§ Mr. Scott
The hon. Member for Manchester, Withington (Mr. Bradley) acknowledged that the work has been proceeding. The results of the work—that is to say, the consultation process, the assessment panels and the evaluation study phases have already been completed—are now being analysed, and the detail of the tests will be revised to take account of the outcome of the consultation, development and evaluation processes.
Our next step is still to publish the results with our final proposals in a report in August. Only after all that will we present our final proposals on the test to Parliament for approval in the form of regulations. The earlier publication of our final proposals should allow interested parties to make their views known before the regulations are laid, and should ensure that we develop a test that is fair. The panel's task has been to advise on the details of the test, although of course not on the basis of the policy. Nobody was asked in any sense to sign up to the basis of the policy when they agreed to take part in the panel's work.
I must say that it has been an almost unique and very useful exercise to have the panel involved in the important work. I should emphasise, perhaps particularly at this point, that no decision has yet been made about the setting of thresholds which will determine whether or not a person is found capable or incapable of work. Nor will any decisions be made until the development and evaluation work is complete.
Once we have published our findings, regulations will be laid, and it will then obviously be up to any organisation to come forward with their comments on those proposals. We will obviously take account of those as the final shape of the test is decided.

§ Dr. Godman
Does the eight-week period incorporate training for a person's work? For example, welders work intermittently in the offshore fabrication industry, and if they are out of work for three or four weeks, they may not be able to reach the standards set for such work in that industry. They have been out of work to undergo periods of training to bring them back to the levels required by Norsk Veritas and an American insurance regulatory body. Does that eight-week period incorporate or include periods of training?

§ Mr. Scott
The hon. Gentleman's intervention relates to a previous amendment, but that period certainly would include any period of training. I was talking specifically about the medical test and the arrangements being made for our proposals to be brought forward properly and publicly discussed. There will then be a final opportunity for the House to discuss the regulations which will flow from that. If I can leap backwards, the answer to the hon. Gentleman is that such a period will certainly apply.

§ Mr. Bradley
I glean from the Minister's response that he intends to issue the final report, and that those panellists who have a dissenting view on it, rather than having their views highlighted in the report, will be allowed to comment on it. If I have misunderstood, I would welcome a correction from the Minister. It is important to discover whether the document will be published as though there was consensus. Will those panellists who disagree have an 153 opportunity to express their opinions separately, or will their concerns be highlighted when the revised report is published?

§ Mr. Scott
It is my present intention that, once the Government have considered the work of the panellists and the evaluation process, they will come forward with their own proposals. It will then be open to anyone to make clear his views about them. Whatever people's final views, I am extremely grateful to those who have taken part in the work of the panel for the body of expertise that they have offered and the fact that they have concentrated on an important issue.