HL Deb 15 April 1991 vol 527 cc1257-67

3.2 p.m.

Read a third time.

Clause 1 [Introduction of disability living allowance]:

[Amendment No. 1 had been withdrawn from the Marshalled List.]

Lord Carter moved Amendment No. 2:

Page 2, line 5, at beginning insert ("Subject to paragraph (7) below").

The noble Lord said: My Lords, in moving Amendment No. 2, I wish, with the leave of the House, to speak also to Amendment No. 3. This is a subject that we debated both in Committee and on Report but in a rather different context. Therefore we have retabled the amendment on Third Reading.

The amendment is related to remarks made by the Minister in response to a point that I made on Report on 25th March when I said: Currently claimants are denied both mobility and attendance allowance, even where they satisfy the terminal illness test, on account of the presence rule. It seems very harsh that that rule will be continued and will be applied to people claiming and othenvise entitled to benefits under the D.L.A. terminal illness rule".—[Official Report, 25/3/91; col. 863]

I pressed the Minister on that point later in the debate and he replied (at col. 865 of Hansard): My Lords, this is Report stage, but if the noble Lord will bear with me, I should like to come back on that point. If he wants to come back to this at a later stage, that may be appropriate but I prefer to write to the noble Lord".

I have not received a reply from the Minister. I am not criticising him for that; but I now have a chance to clear up the matter. Under the terminal illness rules the six-month waiting period that applies to all other parts of the DLA is waived so that a person who has been certified as terminally ill is able to receive benefit immediately. However, as the Bill presently stands, in order to receive the benefit, the person must have been in this country for at least six months out of the past year. Therefore the cruel and absurd situation could arise that a person who expects to die within six months is told that he or she has to wait six months before any benefit can be paid. That completely defeats the purpose of the terminal illness rules which are specially designed to ensure that people receive such help with the least possible hassle and delay.

The Association of Hospice Social Workers, which agrees with the thrust of the amendment, has written to me stating: The fact that Attendance Allowance can be paid within ten to fourteen days to someone terminally ill is a good breakthrough … We are however saddened by the fact that some of our patients still need to meet the presence criteria to be able to qualify for the allowance. We feel that the expenditure incurred in waiving the presence criteria in the UK would be minimal and may even result in some savings but would greatly enhance the spirit of the act".

The association refers to an example which I shall repeat to the House as it brings the situation home extremely well. The association referred to the case of Mr. "J" who is 38 years old. After being diagnosed as terminally ill, he returned to England in order to die within the loving care of his family. He returned to this country on 1st October 1990 and an application was submitted under the attendance allowance special rules. He was informed that the adjudicating officers' decision was that he did not meet the presence criteria until 1st April 1991.

For several months from October 1990 Mr. "J" was cared for by his family. If he had received attendance allowance and hence gained access to other benefits, his family members would have gained some respite. The situation on 10th April was that Mr. "J" was a hospital in-patient. He is dying. He does not qualify for the attendance allowance under the special rules. Had Mr. "J" or his family been able to enlist additional help through the receipt of the attendance allowance, access to other benefits would have been opened up, and his family may well have been able to provide care at home during his last few weeks.

The cost of the measure is minimal. The argument for adopting it is overwhelming and heart-rending. It is accepted in principle by the Government. I cannot believe that the Government will refuse to accept the amendment. I hope that the Minister will be able to explain the reasons why the Government feel that the presence requirement should remain for the terminally ill, as they stated in Committee and on Report. I beg to move.

The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley)

My Lords, I hope I can deal with the points that the noble Lord has made. As the noble Lord pointed out, I promised to write to him on the matter. However, as the noble Lord tabled this amendment, I felt this would be a suitable opportunity to explain the Government's position.

In Committee I explained that DLA will adopt the attendance allowance presence requirement of 26 weeks out of the preceding 12 months rather than the less generous requirement of 52 weeks out of 18 months which applies currently for mobility allowance. As I have explained before, the DLA regulations will also provide quite generous exemptions from the presence requirements by means of deeming people in certain situations to be present in Great Britain even though they are absent abroad. This will apply in particular where a person has gone abroad temporarily for medical treatment or the absence is for some other temporary purpose and has not lasted more than six months.

That demonstrates that we are always prepared to look closely and sympathetically at how to improve our arrangements. That applies to an issue like this one. I was not aware, until the noble Lord briefly raised the issue on Report, that there was, or might be, any problem in this area. Having taken the opportunity of the Recess to look further into the matter, I can say that the department is aware of only a handful of cases where the residence and presence rules have worked to the detriment of someone claiming under the special rules that we operate for people who are terminally ill.

The terminal illness rules are very new and it is perhaps dangerous to draw conclusions from just a few months' experience. What I should like to do, if the noble Lord will withdraw his amendments, is to look further at the issue and the situations in which benefit is not being awarded. As I said on Report, we believe it is right in principle that DLA claimants should have to establish a real connection with this country before obtaining benefit. Nevertheless, if it appears that the residence and presence rules are operating unfairly in terminal illness cases, we shall certainly consider modifying them. I take note of the case that the noble Lord referred to concerning Mr. "J". If the noble Lord cares to supply me with the details of that case, or will allow me to read them in Hansard, I shall take a further look at the matter.

In asking the noble Lord to withdraw his amendments, I make one further point which I hope will persuade him that he can do so safely. If we reach the conclusion that a different residence and presence test is needed for terminally-ill people, it is something we can apply by means of regulations. The powers to prescribe different tests for different groups—if we wish to—are in the Bill already. I hope in view of that assurance, the noble Lord will feel able to withdraw his amendments.

Lord Carter

My Lords, I am grateful for that reply. The Minister has answered the question that I was going to ask—that is, how do the Government propose to carry out this measure? If they are able to do so by regulations, I am sure that they will be able to draft such regulations accordingly. We are talking about only a handful of cases, as the Minister has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Lord Carter moved Amendment No. 4:

Page 4, line 41, after ("person") insert: (", except a child under the age of 16 who at the request of a paediatrician is accompanied or frequently visited by a parent or guardian who provides prolonged or repeated supervision or attention with his bodily functions while in hospital for medical treatment,").

The noble Lord said: My Lords, this amendment seeks to amend the Bill to reflect an indication which was given on Report on 25th March by the Minister when he said: It is an issue at which I am prepared to have another look".—[Official Report; 25/3/91; col. 870.]

This is an opportunity for him to do so.

There is no need to repeat at any length the debate that we had at Report stage. However, in order to help your Lordships I shall remind the House that the amendment is modest in scope. It applies only to those parents who are already in receipt of attendance allowance and who continue to provide significant levels of care while their children are in hospital. The amendment suggests that it would be possible for that group of children to be defined by medical professionals, who could confirm that that was the case. No doubt the Secretary of State could prescribe regulations to ensure that that group of needy parents was properly defined.

The problem arises because parents in that situation fall foul of the regulation which restricts payments of attendance allowance where respite care is provided for a period over and above 28 days. The amendment does not seek to alter that condition but to separate hospital care from the regulations as the same considerations do not apply.

The parents to whom we refer are those who continue to provide care and attention to their children throughout the day, and indeed the night, while they are in hospital and who take over a number of the essential nursing tasks for their children. Thus this is a completely different situation from respite care, where the parents are relieved of the caring for a short period.

In an interview on the BBC's "News At One", Dr. Judith Kingston, a senior paediatrician, said: It does seem unfair that parents should lose attendance allowance when their children arc in hospital for a long time. We rely on parents looking after their children when they are in hospital, the mums contribute significantly to the nursing care of the child and there's a lot of expense—extra expense —involved when the child is in hospital".

Parents and children in such a situation face enough trauma without the burden of having their essential benefits reduced or taken away after the child has been in hospital for 28 days, especially when they continue to have the costs of travel to the hospital in addition to the other costs associated with having a disabled child.

I emphasise that the amendment does not propose any relaxation of the principle involved. It is targeted at those parents who continue to care for their children while they are in hospital. It is hedged around with qualifications to ensure that the general principle is not challenged. It applies to a small group of disabled children who are in hospital for medical care and whose parents continue to provide the bulk of that care.

At Report stage I gained the impression that the Government recognised the problem and were sympathetic. We have tried to meet the various points that were raised at Committee stage. As I said, the group is carefully targeted; it is small and the cost to the Government is minimal. I hope that the Minister will be able either to accept the amendment or to indicate that the Government at least understand the problem and are prepared to define this particular group, perhaps in regulations. I beg to move.

Baroness Seear

My Lords, I am very pleased to support the amendment. The main points have already been made and I should like merely to emphasise that this is a totally different situation from respite care. Very real expense is involved in going backwards and forwards to hospital to look after a child there. It has been made quite clear by the medical authorities that it is highly desirable that the parents should be there. That being so, the case for the amendment is extremely strong.

Baroness Phillips

My Lords, I too should like to support my noble friend and the noble Baroness who has just spoken. The amount of money involved will not be great because the numbers will not be great. A government who can find £30,000 a year for ex-Prime Ministers must surely see that when they go to the country for votes it will be far better to have given money to a worthy cause such as this. We have to get our priorities right. The sick, the needy and the poor, particularly children, have to be first in our thoughts if there is to be good government. This is an opportunity for the Government to look beneficent, kind and generous and I am sure that they will not turn the amendment down.

Lord Swinfen

My Lords, I also should like to support the principles behind the amendment. Very often disabled children are far more dependent on their parents than able-bodied children are, particularly if they have communication difficulties. In such cases it may be the parents alone who understand the children. As a result, in order to ensure that the child can make its needs known and answer questions from the specialists attending it in hospital, and to act as interpreters, such parents have to be present in hospital more than the parents of able-bodied children.

Baroness Hollis of Heigham

My Lords, I too urge your Lordships to accept the amendment. We are not talking about the Government giving additional grants or allowances. We are merely seeking that the Government should not withdraw allowances which parents caring for disabled children or children with challenging behaviour currently receive. The point has been made and can bear repetition that these are children who are not only sick, requiring medical care in hospital from paediatricians, but whose behaviour, disability or disturbance is such that they require almost continuous day and night care in hospital from a parent or other member of their family. That is why, were the allowance to be removed and parents found themselves unable to attend to their children a heavy burden would be placed on nursing staff.

It is in recognition of the continuing care which parents of such children offer to their children while in hospital, which is not similar to that required by able-bodied children, that we hope that the Government will not withdraw the disability benefits which parents would otherwise continue to receive.

3.15 p.m.

Lord Henley

My Lords, I have no intention of hiding behind the expense of the amendment. However, I must confess to being slightly surprised, after the assurances that I gave at Report stage and at Committee stage in response to similar amendments in the name of the noble Baroness, Lady Hollis, that we should be debating the amendment today. Perhaps I was too discouraging then, but as I said, I did not want to raise false hopes by giving a cast-iron guarantee that we would act. That would have been wrong of me, and I should be wrong to accede to the noble Lord's request to bind the Government today to do something, especially when we cannot be sure exactly what that something should be.

I accept the need to examine the issue and to see whether we can meet the concern that has been raised. I understand that concern and have much sympathy with it, as I said on earlier occasions. As I said at Report stage, I acknowledge the effort that has been put into ring-fencing the small numbers of children with whom the noble Lord and others are concerned in this amendment. I am equally sure that the noble Lord recognises our concern, which I raised at Report stage, that our general policy should stand. I shall not reiterate those arguments.

As I have said, a fair case has been made out for the change. However, we must examine the issue in some depth. There is a great difference between being able to cite individual cases in which the existing law may seem to be too tough and finding a legislative solution which ensures that all the right people are helped without opening the door to others for whom we would not accept that that was the cane. I doubt that that will prove beyond us, but we must look closely at the issue before deciding what to do.

Perhaps it would reassure the noble Lord if I confirmed the indication that I gave at Report that that is something that we could achieve by regulation if the case for action is made. No amendment to the Bill is needed. I hope that, on the basis of that assurance—an assurance which I gave at Report stage —and my undertaking that we shall look closely at the issue in the department in consultation with the organisations which have raised the issue, the noble Lord will feel able to withdraw his amendment. I stress, as I have on other occasions, that my door will remain open if the noble Lord wishes to come to see me on this matter.

Lord Carter

My Lords, I am surprised that the noble Lord is surprised that I should raise the matter. Perhaps I may remind him of what he said at Report stage. He said: I do not advocate the adoption of this amendment but it is an issue at which I am prepared to have another look. I should be happy to explore it further … I do not want to minimise the difficulties or raise any false hopes, but my understanding is that this is not an area in which we need primary legislation. Should it prove to be so there is anyway some time before this Bill has its Third Reading".—[Official Report, 25/3/91; col. 870.]

Here we are at Third Reading and the intention of putting down the amendment was precisely to learn whether the matter can be dealt with by regulation. I am grateful that the Minister has confirmed that. I note that the Government are sympathetic to the problem. I was anxious to have it on the record that they are now prepared to have a look at the problem to see whether they can deal with it by regulation. I am grateful to the Minister for that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter

moved Amendment No. 5: Page 5, line 9, leave out from ("period") to ("throughout") in line 10.

The noble Lord said: My Lords, in moving Amendment No. 5 I should like to speak also to Amendment No. 6.

Your Lordships will be aware that at previous stages of the Bill we have tried to reduce the minimum age for receiving the mobility component from five years to two years. The Government's response consisted of unconvincing arguments about the ability to walk and the fact that handicapped children under five have no greater problems than able-bodied children under five. When that did not work, the Minister fell back on the cost of reducing the minimum age from five years to two years.

There is no need to repeat the arguments at length. We are convinced that significant differences in the ability to walk and mobility can be discerned between non-disabled children and disabled children who have serious problems with mobility far earlier than the age of five. Those problems can result in the need to spend far more on mobility than would otherwise be the case. A little more money to help with the extra costs of mobility for children with disabilities between the ages of two and five would make an enormous and practical difference to those families and would help to relieve their worry and stress. I do not propose to take the time of the House by repeating the examples that have been given at earlier stages, but they make a strong argument.

The Government estimate that the amendment to reduce the age from five years to two years at one go would cost about £30 million. The purpose of the amendment is to give the Government the flexibility to consider implementation in stages at the Government's own speed; for example, down to the age of four, then perhaps to three and eventually to two, as the funds became available. It is important that something should be done and we are seeking to give the Government the necessary flexibility.

As I said, we well appreciate that the department might have some problems with the Treasury if the minimum age is reduced from five to two in one move. The amendment merely gives the Government the power to prescribe the minimum age by regulation without recourse to primary legislation so that the change can be made as the funds allow, perhaps in stages. It is a sensible approach. It leaves the timing and implementation entirely in the hands of the Government. Their response to this conciliatory approach will indicate how seriously they understand the problem. I beg to move.

Lord Henley

My Lords, the question of the lower age limit for entitlement to the mobility component has been debated at length on several occasions and at Report the House rejected an attempt by the noble Lord to reduce it from five years to two. The noble Lord has now come forward with a further amendment the effect of which would be to reopen the whole issue and leave it to be settled in regulations at some future point.

I do not see what the noble Lord hopes to achieve by this latest amendment, other than further debates. To avoid any misunderstanding, let me make it clear to the House that if the amendment is accepted the Government would have no intention of specifying anything other than five years as the minimum age in regulations. Let me also make it clear, if any of your Lordships are still in doubt after our previous debates, that it is not simply a matter of cost; though obviously cost must be an important matter. The Government are convinced that five years is the most sensible age at which to set a minimum age limit for the mobility component given that, as I believe everyone accepts, a line must be drawn somewhere. The noble Lord said that the arguments were unconvincing. I do not accept that and nor did the previous Labour government which the noble Lord no doubt supported.

I do not wish to delay the House by going over all the old ground unnecessarily, but I should again briefly state why the Government consider five to be the right age at which to start helping children with mobility needs. The key consideration is at what point the costs associated with disability begin to add significantly to the costs associated with age. No one denies that it may be apparent before the age of five that a child is unlikely ever to be able to walk. Nor does anyone deny that there may be individual cases where a child's disability causes particular problems from an early age.

However, as I said both on Report and in Committee, all children below the age of five have mobility needs. They are not independently mobile and their mobility needs inevitably place additional demands on their parents. Having recently increased the size of my own family, I hesitate to imply that young children are in any way an unwelcome burden. It is simply a fact of life that the transport of children under five creates both problems and expense. There are no doubt some exceptional cases, but I do not believe that it has been demonstrated by the noble Lord or anyone else that disability causes significant additional costs in the generality of cases involving under-fives.

I accept that the position becomes less clear cut the closer the child gets to the age of five. Any dividing line is to some extent artificial and there is always a temptation to bring in cases which are just the wrong side of it. The noble Lord suggests that we could make the change gradually if we feared that cost was the consideration, but I do not believe that that would be the way round the matter. For example, I do not see that there would be any particular logic in choosing, say, the age of four in preference to five. There is a perfectly logical basis for an age limit of five because that is the age at which most children start school and start to become independently mobile.

I suspect that the reason why the noble Lord put forward the amendment is that he is unable or unwilling to accept that the Government believe that an age limit of five is right for the mobility component. I hope that what I have said today will finally convince him that this is a point of principle upon which we are not prepared to give way. From his point of view, therefore, deferring the question of the age limit until the regulations are made would bring no advantage. Nor, frankly, do I believe that it would be right to remove an issue as fundamental as this from the Bill. Your Lordships have already expressed the view that it would be wrong to reduce the age limit from five. If the noble Lord wishes to press his amendment I hope that the House will continue to affirm that view and reject his amendment.

Lord Carter

My Lords, at least we are now entirely clear that the argument was not rejected in the past on the question of cost. It was rejected entirely because the Government believe—this is an attitude which I believe is completely detached from the reality of living with disabled children —that there is no extra cost for a handicapped child between the ages of two and five when compared with a normal toddler.

Perhaps I may quote one mother, though I could quote many. She says: It's disgusting! A normal child is walking at one, though maybe not independently until two. I had a handicapped child first, so I had no one to compare him with. But now, with the little girl. She's been an independent little miss for 18 months of her life, feeding herself and walking. Not in a pram. To put the mobility at five is ridiculous, because you need the help more in the early days".

In another example, a lady who had a child with cerebral palsy says: Just getting buses was awful. I could never do it. I was getting eviction letters for not paying the mortgage because all my money was going on taxis every week, because I had no time. If you had the Mobility from an early age, you could live as normal a life as anyone else. But without mobility … If you've got to buy a car or a van … We took out a £2,000 bank loan and we're paying out money on it all the time. But, we've done a lot of things because of the car that we couldn't have done. We're still paying the bank loan now".

It seems to me that the Government have completely ignored the arguments of the organisations and parents concerned. I do not apologise for returning to the point. We have given the Government the chance to act with flexibility over time as funds allow. Obviously, they reject the whole principle of the argument and therefore the only thing that I can do is to test the opinion of the House.

3.29 p.m.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 72; Not-Contents, 102.

Division No. 1
Acton, L. Ardwick, L.
Airedale, L. Attlee, E.
Annan, L. Aylestone, L.
Banks, L. Jenkins of Hillhead, L.
Blease, L. Jenkins of Putney, L.
Bonham-Carter, L. John-Mackie, L.
Boston of Faversham, L. Kagan, L.
Bottomley, L. Kilbracken, L.
Carmichael of Kelvingrove, L. Kinloss, Ly.
Carter, L. Leatherland, L.
Cledwyn of Penrhos, L. Llewelyn-Davies of Hastoe, B.
Clinton-Davis, L. Longford, E.
Darcy (de Knayth), B. Mackie of Benshie, L.
Dean of Beswick, L. Mason of Barnsley, L.
Donaldson of Kingsbridge, L. Mayhew, L.
Dormand of Easington, L. Molloy, L.
Ennals, L. Morris of Castle Morris, L.
Ewart-Biggs, B. Nathan, L.
Ezra, L. Nicol, B.
Falkland, V. Ogmore, L.
Fisher of Rednal, B. Phillips, B.
Gallacher, L. [Teller.] Rea, L.
Galpern, L. Sainsbury, L.
Gladwyn, L. Saltoun of Abernethy, Ly.
Graham of Edmonton, L. [Teller.] Seear, B.
Sefton of Gaston, L.
Halsbury, E. Scrota, B.
Hampton, L. Stallard, L.
Hanworth, V. Stedman, B.
Harris of Greenwich, L. Stoddart of Swindon, L
Hatch of Lusby, L. Strabolgi, L.
Henderson of Brompton, L Swinfen, L.
Hollis of Heigham, B. Tordoff, L.
Holme of Cheltenham, L. Underhill, L.
Hutchinson of Lullington, L. Wharton, B.
Hylton-Foster, B. Williams of Elvel, L.
Alexander of Tunis, E. Gray of Contin, L.
Arran, E. Gridley, L.
Astor, V. Hailsham of Saint Marylebone, L.
Auckland, L.
Bancroft, L. Hayter, L.
Belhaven and Stenton, L. Henley, L.
Beloff, L. Hives, L.
Belstead, L. Holderness, L.
Blatch, B. Hooper, B.
Blyth, L. Ironside, L.
Boardman, L. Killearn, L.
Borthwick, L. Knollys, V.
Boyd-Carpenter, L. Lauderdale, E.
Brightman, L. Long, V.
Brigstocke, B. McColl of Dulwich, L.
Brougham and Vaux, L. Mackay of Clashfern, L.
Butterfield, L. Malmesbury, E.
Butterworth, L. Margadale, L.
Caithness, E. Merrivale, L.
Campbell of Alloway, L. Mersey, V.
Campbell of Croy, L. Milverton, L.
Carnock, L. Morris, L.
Cavendish of Furness, L. Mowbray anc Stourton, L.
Clanwilliam, E. Munster, E.
Cockfield, L. Murton of Lindisfarne, L.
Colnbrook, L. Nelson, E.
Cottesloe, L. Nugent of Guildford, L.
Cullen of Ashbourne, L. Oxfuird, V.
Cumberlege, B. Park of Monrnouth, B.
Dacre of Glanton, L. Pearson of Rannoch, L.
Davidson, V. [Teller.] Pender, L.
Denham, L. [Teller.] Porritt, L.
Donegall, M. Rankeillour, L.
Dudley, B. Reay, L.
Eccles of Moulton, B. Renton, L.
Effingham, E. Richardson, L.
Ellenborough, L. Rodney, L.
Elliot of Harwood, B. St. John of Fawsley, L.
Elton, L. Savile, L.
Faithfull, B. Skelmersdale, L.
Ferrers, E. Strange, B.
Flather, B. Strathcarron, L.
Foley, L. Strathclyde, L.
Fraser of Kilmorack, L. Strathmore and Kinghorne, E.
Gainford, L. Strathspey, L.
Sudeley, L. Waddington, L
Swansea, L. Wade of Chorlton, L
Terrington, L. Waldegrave, E
Teviot, L. Walton of Detchant, L.
Thomas of Gwydir, L. Wise, L.
Thorneycroft, L. Wynford, L
Vaux of Harrowden, L.

Resolved in the negative, and amendment disagreed to accordingly.