HL Deb 24 July 1991 vol 531 cc865-71

8.42 p.m.

Lord Henley rose to move, That the draft regulations laid before the House on 4th July be approved [25th Report from the Joint Committee]

The noble Lord said: My Lords, in moving these regulations, it may be for the convenience of the House if we discuss also the Disability Living Allowance Advisory Board Regulations 1991.

The House may recall that on 7th March during the Committee stage of the Disability Living Allowance and Disability Working Allowance Bill, I announced the Government's intention to modify the residence qualifying condition for severe disablement allowance for serving members of the armed forces and their close families. Regulation 2 of this draft instrument gives effect to this commitment.

The latter part of Regulation 2 and the whole of Regulation 3 bring forward some purely technical amendments. These amendments are needed to clarify earlier drafting, relating to the introduction of age-related additions to SDA, and to the exceptions which already apply to the SDA presence conditions. I should stress that these provisions do not introduce any changes of policy.

The qualifying conditions for severe disablement allowance require a claimant to have been resident in Great Britain for a total of 10 years in the 20 years preceding the date for which benefit is claimed. We recognise, as indeed my noble friend Lord Swinfen has pointed out on a number of occasions, that this rule has presented difficulties for some members of the families of servicemen required to be abroad in the service of their country.

Although recent case law has enabled some members of service families who have been abroad to qualify under the existing rules, there may still be a small number of such claimants who will be unable to do so. Regulation 2 of these draft regulations makes it absolutely clear that periods abroad as a serving member of the armed forces, or as part of his close family, shall count as residence in Great Britain for the purposes of the SDA qualifying conditions.

The House will agree that this small amendment to the severe disablement allowance is, nonetheless, a worthwhile improvement in benefit provision to make at this time. It is wholly consistent with making improvements to the benefits for sick and disabled people. I therefore commend these regulations to the House.

I shall deal now with the Disability Living Allowance Advisory Board Regulations 1991. Noble Lords may recall that they gave widespread support for the creation of such a body when what is now the Disability Living Allowance and Disability Working Allowance Act was debated earlier in the year.

The regulations for the DLAAB put the flesh on the bone of the provisions in Section 3 of the Act. In particular, they provide details of our proposals for the qualifications of members. I hope that noble Lords will welcome our emphasis on a balanced membership which includes people from caring professions such as physiotherapy, nursing, occupational therapy and social work as well as doctors. I am sure that noble Lords will note particularly that the regulations stipulate that the board must include at least one informal carer and six people with disabilities.

Our approach to the membership of the board, as set out in the regulations, underlines our commitment to ensuring that the emphasis is on the effects of a condition, rather than diagnosis. Through the board's assistance in the drafting of a disability handbook, adjudication officers will be better placed to determine claims for disability living allowance and attendance allowance on the basis of self-assessment, without the need for a medical examination.

The board's job will not be a one-off task. Clearly it will not be the board's job to monitor the standard of decision-making by adjudication officers. That is the role of the chief adjudication officer, but the board will be expected to monitor the handbook. It will need to ensure that it covers new conditions and treatments as they emerge. It will also wish to monitor the use that is made of it by adjudication officers and their medical advisers, and that it is being properly interpreted. In addition, we shall welcome any observations that the board, either from its own experience or through contact with specialist groups, wishes to make on the broader operation of the new assessment arrangements.

I hope that the House will welcome these regulations; I commend them to the House. I beg to move.

Moved, That the draft regulations laid before the House on 4th July be approved. [25th Report from the Joint Committee].—(Lord Henley.)

Lord Carter

My Lords, the House is grateful to the Minister for explaining the two sets of regulations. As he said, it is convenient to discuss them together.

On the Social Security (Severe Disablement Allowance) Amendment Regulations, we know (because we have discussed this many times in the past) that the residence rules are more stringent for SDA than for other disability benefits. For example, people who have been in Great Britain for fewer than 10 years will not be entitled to SDA but may qualify for mobility allowance as a result of the difference in the residence rules.

Claimants who go abroad may risk a loss of their entitlement under that rule. It has been argued that that would discriminate against some black and ethnic claimants. We know that if a test of residence is used to establish entitlement, that creates anomalies between claimants and bears no relationship to the disability which brings about the claim. Two people with identical disabilities may be treated differently. One will be awarded SDA and the other refused it. There may not be many claimants affected by that rule. As the Government have removed the residence anomaly for members of the forces, which we understand and support, would this not have been the chance to remove it for all claimants? It would be interesting to know why that was not done.

Once again I must remind the Government that they have ignored the recommendations of the SSAC that SDA should be upgraded to the level of invalidity benefit. I think that I know the answer that the Minister will give; but he might be good enough to repeat that it is because of the cost. The SSAC regarded it as unfair that people disabled from birth and unable to work still receive substantially less benefit than those who have been disabled later in life or through work injury.

It would be helpful if the Minister would tell us whether there will be any retrospection in respect of people who will now benefit from the change. I have already mentioned the 10-year residence test. It has been argued that that discriminates against people who have the right of settlement in Great Britain and who may be British citizens. It may also be seen as giving a message to black and ethnic minority communities that their severely disabled members are awarded less priority than white British people.

That argument has been put by a number of organisations. I should be glad if the Minister would comment on it.

I turn to the second group of regulations and I shall also use the awful acronym, DLAAB. I have made the point on previous occasions. The principal Act received Royal Assent on 27th June. We have the draft statutory instrument in front of us with a number of handwritten amendments. I have said before that it seems that the amendments are in respect of printing errors. Does no one proof read the documents, or is there some other reason for the errors? I see that the Minister is taking advice on the matter.

I should be interested to know, since there has been over a month in which to prepare the document, why there have to be handwritten amendments. There have been previous occasions when the House has adjourned for pleasure because we could not read the writing. However, these amendments are clear and we can read them. I make that point in passing.

Unlike the attendance allowance board which will now disappear, the DLAAB has no decision-making powers and no real power to act independently. Under Section 3(2) of the principal Act there is no clear remit for DLAAB, other than that its functions must relate to DLA or attendance allowance. Section 3(2)states that: Regulations shall confer on the Board such functions relating to disability living allowance or attendance allowance as the Secretary of State thinks fit". The section then goes on to make provision for membership of the board.

On the regulations themselves, Regulation 2 sets up the functions and powers of the board. It is clearly in no sense an independent body. It is: to give advice to the Secretary of State on such matters as he may refer to them for consideration … to give advice to a medical practitioner … which he refers to the Board", and, to present an annual report on its activities". It therefore has no effective power to act independently. It has the ability to present an annual report on its activities to the Secretary of State. Is it the intention that the annual report will be published and will be available for debate in Parliament?

The Minister mentioned advice from the board on the handbook on the care needs and mobility requirements which are likely to arise from different medical conditions. I presume that there has been consultation with outside organisations in the drafting of the handbook. I should be grateful if the Minister could confirm that.

I have already said that under Regulation 2(1) (b), the board's role in adjudication is simply to give advice to DSS doctors on those individual cases or questions arising in individual cases which have been specifically referred to it. Why was the board not given independent powers to give general advice, to comment on the efficacy of medical report forms and self-assessment forms or to carry out general research on medical issues arising?

We have been advised that at the very least the regulations should give the board the capacity to act independently of the Secretary of State and of individual requests for advice from the medical practitioners under Section 115C(4) of the Social Security Act 1975.

There is a feeling among the organisations that in the setting up of the board an opportunity has been missed. It seems that the DSS is still attempting to retain powers for itself which it otherwise might lose. In that sense, there is a degree of disappointment. Having said that, we support the Government and accept the regulations.

8.55 p.m.

Earl Russell

My Lords, after our previous debate it is a great pleasure to welcome an announcement by my noble kinsman. The severe disablement regulations give effect to an undertaking that my noble kinsman made in the House on 7th March. They also recognise the tenacity and skill of the noble Lord, Lord Swinfen, who brought the point to the Government's attention. He authorised me to make his apologies to the House this evening. He is regrettably unable to be present because of his obligations as host to newly arrived guests.

I understand that he is satisfied with the point made by the regulations. They deal with members of the armed forces who would otherwise have been excluded from severe disablement allowance under the residence qualifications. This concession may cover rather fewer people than it would have done a few weeks ago, but it is nonetheless welcome.

However, in welcoming it I ask the Government to consider whether the principle in the regulations may legitimately be applied to other categories of people. The obvious one is diplomats who are often abroad for long periods in the service of their country. Civil servants may be abroad for similar reasons. Also, since their living depends on selling goods abroad, the Government might give similar consideration to those who are sent abroad on the service of their firms.

I also wish to ask a question which has been asked on previous occasions. When do the Government intend to raise the severe disablement allowance to the level of invalidity benefit? On this question the noble Baroness, Lady Blatch, once gently encouraged me to hope. She does not do that very often but, when she does, I am interested.

The other regulations, the Disability Living Allowance Advisory Board regulations—I shall not attempt the initials—deal with the board which advises the Minister on questions to do with the disability living allowance. The composition of the board was discussed exhaustively in the House. I shall not touch on it now. I am worried about the same point as the noble Lord, Lord Carter, on the freedom of the Board to give advice. This is becoming a general matter of anxiety dealing with organisations appointed by the Government. It arose first on the appointment of the Universities Funding Council, which was not allowed to give advice to the Government in public. I divided the House on that occasion and I do not regret having done so. Of course, I shall not do so now, particularly in the light of the remarks of the Minister's right honourable friend Mr. Scott speaking in Committee in the other place on 23rd July. He said: We envisage that the report will not be sat on by the Secretary of State but will be published and be a matter of public discussion".—[Official Report, Commons, First Standing Committee on Statutory Instruments, &c., 23/7/91; Col. 12]. I warmly welcome that assurance by the right honourable gentleman and should be grateful if my noble kinsman can confirm it.

8.57 p.m.

The Countess of Mar

My Lords, I regret that Her Majesty's Government have not taken the opportunity to harmonise the residence qualifications in line with attendance allowance and mobility allowance, which are six and 12 months respectively. This is particularly so since on the introduction of the disability living allowance the two will be harmonised to six months.

I ask the Minister what consideration the Government have given to any EC directives as the SDA is a work-related benefit. This was apparently not considered by the First Standing Committee on Statutory Instruments.

Lord Henley

My Lords, I am not sure that I caught the last point made by the noble Countess, Lady Mar. Did she say that it had not been referred to the First Standing Committee on Statutory Instruments?

The Countess of Mar

My Lords, I understand that it was not discussed by that Committee.

Lord Carter

My Lords, this is a point that I meant to make. There is a case before the European Court of Justice. Perhaps the Minister would refer to it in his reply.

Lord Henley

My Lords, my understanding is that it was referred to the committee. The fact that it did not discuss the regulations means nothing; the committee did not disagree with them.

First, I shall deal with the severe disablement allowance and the grudging acceptance that it was a concession for the armed forces. The suggestion was that the measure should go further, particularly, as my noble kinsman put it, to Crown servants. Obviously, these regulations were to address one particular difficulty affecting members of the armed forces. I pay tribute to my noble friend Lord Swinfen for his persistence in the matter. I thank my noble kinsman for his kind words about my noble friend who came to see me beforehand to tell me that he regretted being unable to stay for the end of the debate. I presume that he also regretted that he was unable to stay to support me earlier in the Division Lobby. However, I am not putting words into my noble friend's mouth.

The House will recognise that apart from Crown servants there are others whose work takes them abroad. A wider change of rules at this stage to accommodate all those groups—we were trying to meet the needs of one particular group—would have considerable cost implications which would have to be set against other very pressing demands on social security expenditure.

The noble Lord, Lord Carter, was quite correct to refer to my next point. We would need to take account of the views of the European Court of Justice which is to consider the length of such residence conditions in the context of the case before it concerning a Belgian benefit. For the moment therefore I believe it is quite permissible to go as far as we have done, but it would not be right to go further. Again I stress the cost implications when I say that I do not believe now is the time as the noble Countess put it —to align SDA residence tests with those which apply to attendance allowance, mobility allowance and disability living allowance. I stress that the test for SDA contains no racial discrimination. It has always been accepted that a person should be expected to have established some connection with this country in order to receive benefits such as severe disablement allowance which do not depend on national insurance contributions.

I now turn to the Disability Living Allowance Advisory Board regulations. I am sorry that the noble Lord, Lord Carter, had a copy of the regulations that contained manuscript amendments. My copy does not have manuscript amendments.

Lord Carter

My Lords, all the copies in the Printed Paper Office had manuscript amendments. That was quite surprising.

Lord Henley

My Lords, I am sure that the noble Lord is not suggesting that—as happened on a previous occasion—we should now adjourn the House. I shall certainly look into this matter. I understood that my copy was the final copy. I do not know whether the noble Lord's copy is the same as mine but amended, or whether my copy is his as it was amended. However, this state of affairs does not sound satisfactory. I shall look into it.

I am also sorry that there was a slightly grudging acceptance of the board. It was suggested that the board should be given much greater and more independent powers. However, there was certainly a general welcome of the new board at the time of the passage of the Bill which has now become an Act.

Lord Carter

My Lords, I should point out that the copy of the regulations on the Table also has manuscript amendments.

Lord Henley

My Lords, I take the point the noble Lord has made. I shall certainly look into this matter. I apologise for the fact that I did not go to the Printed Paper Office as I should have done. I relied on the copy that I lad in the department. I accept that this state of affairs is not satisfactory. I shall certainly try to ensure that this problem does not arise again.

I have only one point to make on the Disability Living Allowance Advisory Board and that concerns its annual report. I can confirm that its report will be published. That report will give an account of the board's activities over the year and it will feature any amendments or additions that have been made to the disability handbook. It will report on meetings of the board with groups representing people with disabilities. On the positive side I should stress that a wide range of people were trying to get on to the board, particularly representatives of the disabled, those with personal experience of caring for the disabled and—as noble Lords will see in Section 3(2) (a) of the regulations—various people with either professional knowledge or experience in various fields.

As I have said, the report will comment on groups representing people with disabilities and on those cases of special difficulty or of a complex nature which will have been referred to the board by doctors in the benefit agency's medical services. I hope I have answered most of the points that have been made. I commend both the regulations to the House.

On Question, Motion agreed to.