HC Deb 04 March 1999 vol 326 cc1323-30

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

7.36 pm
Mr. Stephen Hesford (Wirral, West)

May I first say how pleased I am that my application for this debate was successful in the ballot? It is about my constituent, Mr. Nicholas Duff, who is aged 40. He is a registered disabled person who suffers from the disability of light-sensitive atopic eczema. This year, he has already spent three and a half weeks in hospital due to the condition, which is so severe that he takes nine different types of medication—either creams or internal medication—daily or weekly.

Typically, Nicholas Duff has to stay indoors during daylight hours due to his light-sensitive condition. If he comes into contact with any ultraviolet light that is commonly in daylight, his skin burns. The result appears to be severe sunburn, although such a description underplays the disability from which he suffers. For example, if he walked to his local shop—a matter of a few hundred yards—he would have to stay indoors for days to recover.

A local charity was kind enough to pay for a car that has specially tinted windows, which block out the damaging ultraviolet light. That enables Mr. Nicholas Duff to have a normal life and to get out and about in the daytime. Indeed, if he had to be admitted to hospital in an emergency, or needed to see his doctor at a moment's notice, he could make the journey in his car, since he is disabled, not from getting out and about, but from getting out in the daylight.

My constituent was granted disability living allowance at the higher mobility component rate in about 1990. He was re-examined for that benefit in 1993. In September 1993, the then adjudication officer gave this decision: I considered the evidence contained in Mr. Duff's claim form and letter. I also considered the letter from Professor Friedmann. The evidence shows that Mr. Duff was able to walk but due to his condition was unable to walk outside in daylight without considerable discomfort and skin reaction. Having regard to the evidence before me I found that Mr. Duff therefore satisfied the higher rate mobility component". In March 1997, Mr. Duff's case was reviewed by the Benefits Agency. At that review, the adjudication officer's decision was to withdraw his benefit. My constituent tells me that, in effect, that withdraws from him the money that enables him to use his car.

In reaching that decision, the adjudication officer said: This is because he is not suffering from physical disablement such that he is unable to walk or virtually unable to do so". That refusal by the adjudication officer was not believed by the local social services or by Professor Friedmann, a leading authority on this disease who is now professor of dermatology at Southampton.

In April 1997, on hearing of the refusal, Professor Friedmann immediately wrote the following letter: I must protest in the strongest possible terms … this disablement is sufficiently severe that he has spent many weeks in hospitals and requires toxic and even dangerous drugs to attempt to get his condition under control … This requires … the correct form of protective film applied to the windows to shut out the harmful wavelengths of the daylight. Mr. Duff is completely dependent upon the continued use of his car which is correctly equipped … There is, therefore, a … strong medical need for this man to have assistance that enables him to maintain his means of mobility. I therefore ask you to reverse this decision". Mr. Duff applied to have the decision reviewed. I ask my hon. Friend the Minister to examine the process that Mr. Duff then underwent between then and the present day, in early 1999. He had to go through a series of hoops which he should not have gone through, and which only exacerbated his situation.

Mr. Duff applied for a review; it took four months to come about, in September 1997. The refusal was confirmed by an adjudication officer. I became involved at or about that time, and it has taken an average of a month for the Benefits Agency to reply to any of my letters.

One of the delays in the case resulted from the fact that the Duff family were so desperate on refusal of their mobility component that they wrote to the Prime Minister. The Prime Minister's Office wrote to the Department of Social Security, and the Department lost the correspondence. I have on file a letter from the then junior Minister, my hon. Friend the Member for Wallasey (Angela Eagle), profusely apologising for that event.

Mr. Duff went for review towards the end of September 1997. The refusal read as follows: Medical opinion states there is no physical cause of any mobility difficulties. I can see no reason why Mr. Duff could not walk a reasonable distance outdoors using appropriate clothing and creams for protection … I do not accept that Mr. Duff's disability is physical. Mr. Duff s family cannot understand how anyone could reach that conclusion having seen Mr. Duff in the unfortunate state in which he often is during the day.

I do not want to overplay the disappointment and distress that that refusal causes, but I draw to the attention of the House the fact that the official note of the adjudication officer's decision shows that he placed reliance on the Benefits Agency medical officer's note of his examination at that time. It was wholly inadequate; I shall explain why in a moment.

Not only did the adjudication officer rely on a wholly inadequate medical opinion, but there was no mention of Professor Friedmann's letter, to which I referred a few moments ago. I know that that letter was on file and was before the tribunal. I am at a loss to understand why the adjudication officer failed to refer to Professor Friedmann's letter of that time. It was one of the reasons why the original adjudicating officer granted the disability allowance in the first place.

On hearing that Mr. Duff had again been refused his disability allowance, Professor Friedmann wrote yet another letter, dated 14 October 1997. He stated: This letter is to express my concern at the utterly flippant tone and response in the letter declining to grant the mobility component of Disability Living Allowance to this man—my patient. … We do not normally ask for Disability Living Allowance for people with normal types of light sensitivity. In Mr. Duff's case the condition is much more severe than usual and in fact, little or no protective benefit is obtained from using sunblock creams"— which were suggested by the medical examiner. The letter goes on to state that the use of powerful cytotoxic and immunosuppressive drugs is necessary in this case, together with frequent in-patient admissions. Professor Friedmann continues: This has probably only been successful because he"— Mr. Duff— has managed to avoid exposure to sunlight… Rather short exposures to daylight can cause severe exacerbation of the skin disease which may take weeks to subside… For the adjudicating officer to make the comment 'why Mr. Duff could not walk a reasonable distance outdoors using the appropriate clothing and creams for protection' shows a complete misunderstanding of the nature of the condition. Mr. Duff appealed that decision to the social security disability appeals tribunal. That brings me to another part of my complaint about the system. He lodged his appeal in December 1997, but it was not heard until November 1998—he had to wait almost a year. That is not satisfactory. I bring the matter to the attention of my hon. Friend.

The appeal tribunal confirmed the decisions refusing the benefit. On hearing of the new refusal, Professor Friedmann wrote a third letter, dated 30 November 1998. He wrote: I understand that his most recent appeal before the Tribunal was rejected on the grounds that 'he is able to walk'! I feel somehow that an almost wilful refusal to acknowledge the nature of the disability on behalf of people assessing this case has been demonstrated. I ask my hon. Friend to reflect on that. I understand from speaking to other hon. Members that it is not uncommon for people with disabilities, on being examined, to be wholly dissatisfied with the way in which they are treated at tribunals. They cannot believe that the doctors are unable to understand their condition.

In Mr. Duff's case, the formula of words found by the doctor and repeated by the adjudication officer is inadequate in medical terms, but it is no surprise to Mr. Duff and his family that it refuses disability on the ground that the claimant "is able to walk".

Professor Friedmann's letter goes on: The whole point about Nick's case is that he can move about only if he is encased in a capsule that filters the sunlight to prevent the harmful ultra-violet rays reaching his skin. The genuineness of his case is exemplified by the fact that, even as I write, he is now in hospital with a severe relapse of his condition. He concludes: I feel that Nick is one of the genuinely deserving cases. My hon. Friend the Minister will understand that I do not speak only of Nick Duff's case. Not only did Mr. Duff's father write in desperation to the Prime Minister—my hon. Friend will understand that not just Mr. Duff junior is affected; the whole family is placed under tremendous strain when dealing with such cases—but he wrote to every hon. Member about the case. I am pleased that hon. Members have stayed tonight to show support. I know from seeing their replies that they gave that support to Mr. Duff, and knowing that the House is willing to listen to their complaint and the wider issues has been of tremendous value to the family. Nearly 50 hon. Members replied in a supportive way, and some took the trouble to mention like cases among their own constituents.

Mr. Duff senior wrote to me about an incident which occurred at the end of November, which encapsulates how the strain impinges on the family. Mr. Duff junior was again housebound and Mr. and Mrs. Duff, having been called round, found the carpet around his chair literally covered in skin. He could not stand the complaint and could not stop scratching. When the doctor saw the skin that had been cleaned up, he was amazed at how much had exfoliated. That shows the severity of the condition, if that needed underlining.

I ask my hon. Friend the Minister to reflect on whether the refusal was proper. Looking at some of the cases involved, there seems to be a potential confusion between section 73 of the Social Security Contributions and Benefits Act 1992, setting out the conditions for eligibility for the disability living allowance, and the regulation made thereunder—regulation 12 of the Social Security (Disability and Living Allowance) Regulations 1991. That sets out a slightly different approach for deciding whether a claimant is entitled to the mobility component of the disability living allowance. I do not ask for a definitive answer tonight, but I have told my hon. Friend where I see a potential difference. I do not intend to detain the House tonight by going through those regulations, but I do ask my hon. Friend to reflect on that and look again at the potential difference, particularly as it affects Mr. Duff s case, if not more generally.

7.53 pm
The Parliamentary Under-Secretary of State for Social Security (Mr. Hugh Bayley)

I congratulate my hon. Friend the Member for Wirral, West (Mr. Hesford) on securing this Adjournment debate on an important matter concerning his constituent. My hon. Friend has made a solid reputation for himself as a powerful advocate here for his constituency and his constituents, and his speech this evening will enhance his reputation. I am glad to have the opportunity to respond to his points.

I have read the files on Mr. Duff's applications for disability living allowance, including the letters submitted by his consultant dermatologist, Professor Friedmann. I recognise that he suffers from a severe condition and, naturally, I sympathise with the difficulties that that causes him and his family.

Before speaking about Mr. Duff's case, it would be helpful to the House if I explained the reasons why disability living allowance is awarded. It is not, and has never been, awarded as compensation for disability. Nor is it awarded because an individual has a particular disabling condition. The level of the award is determined by the effect of a person's condition on his daily life—the level of care that the person needs and the effect of the condition on his mobility.

DLA has two components. One is paid in relation to the need for help with personal care. The other, which concerns us in this case, is paid in relation to mobility needs. The mobility component is paid at two rates. The higher rate, which we are discussing, is paid when an individual is unable, or virtually unable, to walk; or has had both legs amputated at, or above, the ankle; or was born without legs or feet; or is deaf and blind; or is severely mentally impaired and has severe behavioural problems. The lower rate is paid when an individual can walk, but needs someone with him to do so.

Decisions on awards are made by adjudication officers, who are statutory office holders and are required to make impartial decisions by applying the law to the facts of the individual case, based on the evidence before them. The primary source of evidence, in all cases, will always be the evidence provided by the claimant. However, evidence is collected from other sources such as the claimant's personal carer, a school, a physiotherapist or specialists and consultants involved in the claimant's care, as well as the claimant's general practitioner.

When adjudication officers consider an application for DLA, help and guidance are available from a variety of sources—for example, the "Disability Handbook", which is produced by doctors from my Department's medical policy group in close consultation with the Disability Living Allowance Advisory Board. It explains the effects of a wide range of medical conditions on a person's everyday life and often suggests where the best corroborative evidence could be sought.

All entitlement decisions carry the right of independent review—my hon. Friend the Member for Wirral, West raised that point—and, under review, a claim can be looked at afresh by a second adjudication officer, who can request additional evidence if necessary. If, following a review decision, the claimant remains unhappy, he has the right of appeal to an independent appeal tribunal. As the name suggests, that tribunal is entirely independent of the Department of Social Security. It provides a means of redress for people who feel that their case has been decided incorrectly by the Department. The tribunals are independent of the Government, so it is not open to Ministers to interfere with their decisions.

To summarise the benefit generally, DLA is paid not as compensation, but in accordance with the law, which sets out detailed conditions for entitlement. Claimants are provided with every opportunity to support their claim and to challenge decisions that they believe to be incorrect.

Mr. Harry Barnes (North-East Derbyshire)

On the general point, and before my hon. Friend the Minister moves on to Mr. Duff's case, he said that one category to which severe disability allowance automatically applies is double amputees; but it did not apply to double amputees a few years ago. I brought to the House the case of one of my constituents, which had many similarities to that of Mr. Duff. My constituent was in severe trouble and was a double amputee. A number of other cases were pressed by hon. Members and an adjustment was made to the law so that it applied to those cases. Mr. Duff may be in a category concerning an unusual area which has not been considered previously. There may need to be an adjustment in the law.

Mr. Bayley

My hon. Friend makes a useful intervention and, if I have time, I will refer to it later in my speech. The law states that the higher rate mobility component of DLA is paid to people who cannot or virtually cannot walk. Double amputees are covered for that reason.

I now turn to Mr. Duff's case. Mr. Duff had an award of disability living allowance higher rate mobility component, which was due to expire on 15 August 1997, and he asked for his claim to be renewed. Once the evidence had been studied, the adjudication officer determined that Mr. Duff was no longer entitled to DLA. From the information provided, it looks now as though a mistake was made when Mr. Duff was awarded DLA, and we had to correct that. I recognise that it has caused my hon. Friend's constituent considerable inconvenience and upset, and I apologise for that on behalf of my Department.

I appreciate that the withdrawal of Mr. Duff's DLA has been distressing for him and for his family. I also recognise my hon. Friend's very real concern that the decision in Mr. Duff's case was wrong. I have to say, however, that Mr. Duff's benefit was not withdrawn without proper consideration by the adjudication authorities.

Mr. Hesford

Will the Minister consider whether some of these adjudication officers are up to the job? Are they fully qualified to recognise what is in front of them?

Mr. Bayley

The adjudication officers are trained to work according to the law. They and the doctors employed by my Department often anger the people whose cases they consider, particularly when they turn down their applications for benefit. Sometimes, that is a natural reaction, but I accept that, on occasions, the way in which adjudication officers conduct their business, although strictly in accordance with the instructions they have been provided, gives rise to offence. My Department is seeking to improve the position. In consultation with bodies that represent disabled people, we are drawing up new programmes for further and additional training, so that those who deal with claims from disabled people are sensitive to the disability on which they are adjudicating.

Mr. Dennis Skinner (Bolsover)

May I make a quick suggestion?

Mr. Bayley

I have only a few minutes left and, in fairness to our hon. Friend the Member for Wirral, West, who raised this case, I should reply to his points. If there is time later, I shall certainly give way to my hon. Friend the Member for Bolsover (Mr. Skinner).

Mr. Duff took full advantage of the system of review and appeal which I have just outlined. Two separate adjudication officers and an independent appeal tribunal have agreed that Mr. Duff is not entitled to the mobility component of DLA because he can walk.

There is case law from the Court of Appeal. In 1996, in the case of Diment and Hewitt—two individuals with serious skin conditions in which the ultraviolet rays in sunlight caused blistering, lesions and irritation—the Court of Appeal agreed that the conditions of entitlement relating to the higher rate of the DLA mobility component were not satisfied because the reaction to sunlight was not related to the act of walking. In addition, it found that entitlement arose only when the severe discomfort was as a result of the physical act of walking.

As to the eligibility criteria for DLA, it has long been accepted that the current tests of the need for help with care and mobility reflect the effect of a disability and the associated extra costs. The criteria are based on the findings of research undertaken by the Office for Population, Censuses and Surveys in the 1980s, which led to the development of DLA.

My hon. Friend referred to a possible discrepancy between the 1992 Act and the regulations. I have looked into that, and I do not think that there is a discrepancy. However, he has asked me to review the matter, and I shall do so. I shall write to him on that point.

My hon. Friend expressed concern about the delay that claimants often face between appealing against a decision on benefit entitlement and getting that appeal heard. He is right to do so. Average waiting times are currently running at around seven months, which is clearly unacceptable. In fact, it is one of the main reasons for the Government's root-and-branch overhaul of the adjudication system, which is well on the way to implementation. The Social Security Act 1998 laid the foundations for a new system, and regulations implementing that will soon be presented to the House.

My hon. Friend mentioned the loss of his constituent's letter to my right hon. Friend the Prime Minister. I accept that that happened, and it should not have happened. I also accept that Mr. Duff s case has not been dealt with well by my Department. Mr. Duff has experienced both delay and mismanagement, and I apologise to him for that. I hope that my hon. Friend will pass on my apologies.

This is not the service that a member of the public is entitled to expect—

The motion having been made after Seven o'clock, 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 six minutes past Eight o'clock.