The Parliamentary Under-Secretary of State, Department of Social Security (Viscount Astor)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Viscount Astor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 5 [Test of incapacity for work]:
§ [Amendment No. 25 had been withdrawn from the Marshalled List.]
§ Lord McColl of Dulwich moved Amendment No. 26:
Page 9, line 33, at end insert:
("(1A) Notwithstanding any other provisions of this Part of this Act, a person shall not be treated as capable of work if he is not capable of any paid work in the open market for at least 16 hours a week.
(1B) For the purposes of subsection (1A) above, work shall mean work which it is reasonable to expect a person to undertake having regard to his age, education, training, the state of his physical and mental health, and his capacity to deal with pain and stress.
(1C) A person is treated as incapable of work where a person's ability to perform work related activity is substantially reduced, not the point at which work becomes impossible.").
§ The noble Lord said: The amendment seeks to do three things. The first is to put on to the face of the Bill the definitions of "incapacity" and "work". Secondly, in so doing, it seeks to make use of the definitions used by the panel of 80 experts considering the test of incapacity. Thirdly, the amendment seeks to go further than the proposed functional approach to incapacity by reintroducing consideration of non-medical factors which are used in the current tests for invalidity benefit which are relevant to incapacity for work.
§ The first aim of the amendment concerns the lack of detail about the proposed test of incapacity within the Bill itself. It is proposed that there will be a purely functional test of incapacity which will be left to regulations which are not to be drafted until much later this year. But leaving the matter entirely to regulations makes it impossible to have an adequate debate on the subject of incapacity for work.
§ The second reason for the amendment is to bring into the Bill the definitions of "work" and "incapacity" which have informed the work of the expert panel. Those experts are attempting to score and rate disabilities with a view to assisting the Government to develop the new test of incapacity. If those definitions of "work" and "incapacity" are being used by the panel, there seems to be no reason why they should not appear on the face of the Bill itself. The definitions were revealed to Members of this place at a presentation of the test last week. It appears that the definitions to be used, and guidance documentation, have been sent to panel members with each exercise that they have been expected to undertake.
§ In that documentation, "work" refers to any paid work in the open market for at least 16 hours a week. What is important is a person's capacity to perform activities involved in work in the context of ordinary paid employment. Therefore it is intended that people would not be regarded as capable of work if they could work only in special circumstances, such as sheltered or supported employment schemes, or specially adapted work places, or who could work 16 hours, but only in an unusual combination of very short spells, or where a person's symptoms vary so widely that he or she could not work regularly.
§ Similarly, the DSS is inviting the panel to consider incapacity in relation to the point at which a person's ability to perform work-related activities is substantially reduced, not the point where work becomes impossible. That is recognition that incapacity for work is not an absolute state. It is the extent of incapacity which is important.
§ The third reason for the amendment is to extend the meaning of "incapacity" to include other relevant factors in addition to a crude scoring of functional limitations alone. The Government's approach to incapacity is based upon refining the research by the Office of Population Census and Surveys for measuring disability; but as has been highlighted by the Joint Consultants Committee, the OPCS surveys on disability were not designed to define capacity for work.
§ Incapacity for work is a more complex matter than merely assessing functions. A range of other factors is 289 relevant. The Joint Consultants Committee holds the view that medical factors are not the only ones that determine whether someone is incapable of work. Medical factors cannot operate independently of other factors. For instance, someone with epilepsy may be capable of some types of work; but the stress involved in that can often make the epilepsy worse. The test of incapacity now used for invalidity benefit includes reference to other factors. That means that having regard to the patient's age, education, experience, state of health and other personal factors, there is no work or type of work which the person can be reasonably expected to do.
§ To determine whether an individual has the capacity to do any work goes rather against the philosophy of general practitioners, hospital physicians and occupational physicians, who strive to rehabilitate people back to work. The new test is expected to be far more stringent, and considerable anxiety has been expressed that people could fail the new test yet still be incapable of work. In particular, people with fluctuating or relapsing conditions could be deemed capable of work on a purely functional measure, and yet not be fit enough for work at all. Cancer can be a relapsing disease with intervals between severe symptoms when a functional test could produce perverse and rather unfair results.
§ People with a long-term debilitating illness could also be wrongly considered capable of work; for example, if people with ME are made to work when they are not well enough they will suffer a relapse. Similarly, people who have managed their disability—for instance, by way of medication, treatment or supervision—could be regarded as cured if measured by functions alone, yet they would not necessarily be capable of work. Making them work or sign on as unemployed could act as a disincentive to any final rehabilitation. I beg to move.
§ Baroness Hollis of Heigham
We on these Benches warmly support the noble Lord, Lord McColl, in the amendment that he so persuasively moved. In this and the next sequence of amendments we are considering Clause 5 of the Bill. Whereas last Tuesday we were looking at the new levels of benefit, today we are dealing with the tough new medical test which a person has to pass in order to qualify for benefit. As the noble Lord said, that tough new medical test arouses in us very considerable worries. That is because the purpose of that tough new medical test is to ensure that enough people fail it so as to produce government savings of money —11.5 billion.
There is no other reason. Sir Michael Partridge the Permanent Secretary clearly told the Public Accounts Committee that,the theory that increased numbers on invalidity benefit is due to fraud is not borne out by research".Those are the words of the Permanent Secretary of the DSS. Quite so. Therefore, people are now claiming invalidity benefit quite legitimately. That is what the Permanent Secretary said. To save money, fewer people must claim it and that can only be done by making the medical test more harsh and stringent so that the 200,000 people who are now on invalidity benefit will 290 come off it when reassessed, and a further 70,000 a year who now come on to invalidity benefit would not in future pass the test to receive the benefit.
What happens at present? Well, a GP assesses whether an individual patient is eligible for statutory sick pay or sickness benefit and then, after 28 weeks, whether that person's health is such that he should continue to receive the benefit, which would then become invalidity benefit, because he is unfit for work. At the moment, the GP's assessment in half of all cases is reviewed by the medical service of the Benefits Agency. In eight cases out of nine, the OP's decision is upheld. The ninth case usually concerns either mental health cases or fluctuating conditions which, as the noble Lord, Lord McColl, explained, are quite difficult to assess.
But, crucially, the GP is making a professional judgment as he knows the person, his history and his entire situation. Perhaps I may quote from the DSS's own research. A GP of 17 years' experience in a group practice said:Someone has to decide whether or not people are fit to work".Who else could know? Who else could make that assessment? The GP knows more about the medical history of the patient than anyone else; indeed, he is the only medical person who knows the patient well.
In future, the GP's role as originally envisaged will be marginal—though perhaps the Minister could help us on that point. At present, the expectation is that the GF' will only diagnose illness and not assess, the capacity or fitness for work as is the case at present. Instead, claimants will be asked to fill in a large self-assessment form which may or may not be user friendly. It will assess their ability to walk, to see, to bend, to stretch, to hear and so on. Numbers will be allocated to the severity of the impairment. Those numbers will be added up and if they pass the threshold the person will receive the benefit; but, if they fail, the benefit will not be awarded.
That process of self-assessment, with ticks in a box, is described as a medical test. Of course, it is not: it is a mechanical test which bears as much relationship to the capacity for work as an MOT certificate does to the ability of a driver to pass the driving test. On that basis, and after an examination by a departmental doctor—which must, by definition, be a snapshot judgment because, unlike the GP, the doctor cannot know the patient—a determination will be made on whether the individual is considered fit for work.
However, the Government's own DSS in-house medical research which the Minister helpfully shared with us makes, I would argue, the Opposition's case —hence the concern for the amendment. What does that research show? It divided disability into little or minimum disability, moderate disability and severe disability. Little or minimum disability meant that the person could walk up to 400 yards or hear in a crowded room. Moderate disability meant that the person could walk up to 200 yards, pick up a two-pence coin and, with difficulty, read a large-print book. Severe disability meant that the person could not walk more than 50 yards 291 —that he could walk only up to 50 yards, or perhaps only five or 10 yards—or that he could not stand unaided or see the shape of furniture in a well-lit room.
I do not think that many of us would disagree with the definition of functional disability. However, the research then went on to show that one-quarter of people examined, with only modest or limited disability, were nonetheless unfit for work. At the other extreme, 15 per cent. of those with severe disability were fit for work. For example, someone who has been blind from birth —a severe disability—may well be fit for work and holding down a good job. But someone else with only a moderate disability—such as chronic back pain if he is a physical labourer—may nevertheless be incapable of work in consequence.
We all know from our own experiences that two people with similar disabilities may have a very different capacity for work. It is not either/or—that is, fit or unfit—but a continuum between being fully fit and fully incompetent to work. In that grey area in between we need a qualitative assessment by the GP who knows the patient's medical history. Why should that be so? Well, as the noble Lord, Lord McColl, said, the points in the functional test are added up to assess how far the person can walk, see, hear and whether he can lift an arm up above his head or into his shoulders, or touch his knees or feet.
We know that such a test of capacity is an MOT test for the body, but surely we also know that capacity for work is really a question of whether a person can perform such actions all the time or only sometimes. Indeed, it is whether his medical condition fluctuates as with ME, multiple sclerosis and arthritis, or whether it flares up sharply and painfully as is the case with asthma or, again, arthritis.
We also know that such a mechanical medical test may test for disability, but it certainly does not test for sickness; for example, long-term glandular fever and other similar medical diseases. Moreover, even if a person has recovered, it does not test whether that person's return to work will bring on a further onset of illness. Nor can such a mechanical so-called "medical test" tell us how much pain such activity generates because it cannot be mechanically measured. Similarly it cannot tell us how much tiredness and fatigue will follow from making certain movements; whether that is associated with strong mental health and the ability to carry on working; how much is associated with background pain; what the implications are of medication; and even whether that person can travel to work.
All those things we know from our own personal family experience affect and maybe determine one's capacity for work, but they are not counted in the new test which is a mechanical run through of what one can do in terms of lifting, stretching and bending. As a result, we believe that people will be disqualified from benefit on this new test when they nonetheless remain incapable of work. In other words, it is a qualitative assessment made by a GP that is necessary. I am baffled that the Government Front Bench does not appear to appreciate that.
292 So our first criticism of this new test is that it only measures what one can count—for example, the number of yards one can walk—but cannot and does not measure what one cannot count, such as pain, fatigue, stress and fluctuating conditions. In other words, it assumes that only what one can count is real and that which one cannot count should not be taken into account. That is why I suggest that this is a mechanical and not a proper medical test.
The second major defect of this medical test is that it assumes that anything one is not functionally incompetent to do—physically incompetent to do—one is therefore competent to do. In other words it assumes that if one is not physically unfit to do something, one is fit to do it. Whether one is able to do it, or whether even such jobs exist, has not been brought into the equation. Hence the examples we have mentioned at Second Reading of men unable to do heavy, physical, manual labour being told to seek lighter work, such as working as lift attendants, car park attendants and the like (such work now is almost non-existent) or alternatively jobs which require no heavy physical effort but which may nevertheless need skills well beyond the possibility of acquisition. The CAB brought one such case to our attention of a scrap metal dealer with angina who was told that he could do light work as a tax-collector even though he was only semi-literate; or there was the case of a Punjabi with no English who had back pain who was told that he could be a radio telephone operator.
I shall take one example slightly further. I take the perhaps fairly common case of a semi-literate building labourer with chronic back pain who is told that he is functionally incompetent to perform physical manual labour but he is therefore physically competent to perform any seated tasks, such as being a computer operative. The medical test simply states that he cannot do his old job, but if he can do any other job he is fit for work. He is therefore physically fit to be a computer operator as he is able physically to sit at a desk and he can physically manage to move the keys and see the keyboard. He is therefore deemed fit for that work and therefore fails the new test. The fact that his schooling finished at 15, that he can barely read, that he is in his 50s and barely able to undergo training in a completely new field, the fact that, perhaps like myself, he does not have the intellectual competence even to understand the computer principle, and the fact that no one would be willing to invest in his training, or that, if he took a training course, with his background and poor health he would be unlikely to get a job, would all be irrelevant. He would be deemed physically fit because he passed the mechanical test of seeing a screen, moving his fingers and being able to sit at a desk. Therefore he would lose benefit.
If our first complaint is that the test is a mechanical one and our second that it is not realistic in terms of what one can go on to do, our third complaint is that this new medical test is to be defined for us by regulations which at the moment, by definition, are not on the face of the Bill. That is why the noble Lord, Lord McColl —I am sure rightly —moved to incorporate onto the face of the Bill the working definitions that the panels of 293 experts are asked to observe. If the Committee were therefore minded to support this amendment, what would it mean? It would mean that we would bring the medical test back into the real world. It would state what we all know to be true; namely, that fitness for work depends not just on a shopping list of mechanical abilities, but also on one's age, one's aptitude and one's all round health—the sort of things a GP judges. This amendment emphasises what it is reasonable to expect a person to do, all things considered. It may, as a consequence, be that more people will receive benefit. So be it, because it is not right by means of an artificial, mechanical test to define the unfit as fit, the disabled as able-bodied, or the sick as well, just so that fewer people pass an inappropriate test. We support this amendment.
§ Lord Swinfen
I also have my name to this amendment and I strongly support it. The test of incapacity which is presently used for invalidity benefit includes reference to other factors. This definition of incapacity has been developed since 1911, and in 1951 the Social Security Commissioners held that someone was to be considered incapable of work:if, having regard to his age, education, experience, state of health and other personal factors, there is no work or type of work which he can reasonably be expected to do".This test was designed to ensure that people are only considered capable of work which is realistically within their grasp. Local labour market conditions are not taken into account, nor personal factors which are not relevant to incapacity, such as domestic commitments. I feel that non-medical factors relevant to incapacity for work should be taken into account. Factors which interact with disability such as age, skills and work history have a direct bearing on work capacity. Age is a serious omission from the proposals as it clearly relates to capacity for work. This is recognised in the department's own research which highlights the problems of people over the age of 50. In the list of groups of current claimants exempted from taking the test are people over the age of 58. Skills such as literacy, numeracy and communication with work colleagues are all vital issues which have a bearing on incapacity for work.
Ability to travel to work is another factor which has also been recognised in the department's own research. Often the distinction between medical and non-medical factors is blurred, or the factors interact. For instance, arthritis can flair up following external stress; mental health problems often have a social context, as in the capacity to maintain routines, to travel and to behave appropriately in public places, which forms part of how the diagnosis is currently made and understood.
The type of work under consideration must be work which is reasonable given the particular individual's circumstances, not a blanket consideration of all work. Job requirements, and therefore functional abilities to do that job, are different. To take one function in isolation as an example, it is not possible to compare the amount, frequency and intensity of bending required as between clerical and manual work. The "all-work" criteria is unrealistic. Someone whose intellectual abilities are limited does not have the option of switching away from the sort of physically demanding 294 jobs, which he could have undertaken easily in the past, to more intellectually demanding activities. At minimum, there should be consideration of the concept of an occupation which it is reasonable to expect someone to undertake. As with the current test, it should be the requirements of an average employer which is the yardstick. Most employers nowadays require a flexible, reliable and adaptable workforce. People who could only work for an ideal, altruistic employer, who i s willing for staff to work when they feel up to it, should not be regarded as capable of work.
Many disabilities, such as ME, MS or arthritis, are variable in their effect over a period of time, as the noble Baroness, Lady Hollis, said. Symptoms of such conditions can vary constantly so that any assessment of whether someone has attained the threshold is a totally artificial one. Individuals may be able to perform a specific function, but it does not necessarily follow therefore that they are capable of work. What is required at work is often repeated functions over a prolonged period. The effect of performing or repeating functions has to be taken into account. I believe that there is an illness known as repetitive stress syndrome. Whether that is legally recognised is a moot point; but it is something that with some jobs needs to he considered.
A claimant about whom I have been advised said:Being a sufferer of ankylosing spondylitis my condition fluctuates from week to week. Acute sciatic pain followed by restriction in bending and moving of the neck and pain in the chest can be followed by remission of say a week before the symptoms flare up again. If examined during this week I would probably be passed as physically fit, but the condition always certainly comes back with a vengeance".There are also invisible disabilities. People suffering from chronic pain already have problems convincing others that their pain is real. We are particularly concerned about this in the light of press reports suggesting that massive numbers of invalidity benefit claimants are malingerers. Images of disabled people are often stereotyped, which can result in some people neglecting to take up their entitlement for fear of being labelled a scrounger or, alternatively, being refused benefit on the basis of their apparently fit appearance.
The image of someone with arthritis as an older woman may disadvantage younger people with the same condition when presenting their claims. There are a considerable number of young people who at first sight one would not think had arthritis; but when they suffer from it, it can be very severe and disabling.
I have the impression that the medical test proposed could be conducted by one of those machines invented by Heath Robinson or Emmett. Some Members of the Committee will remember seeing them in Punch. The individual would be put in at one end. There would be lots of whirring and clanking. The person might go all the way through and be declared as being incapable of work but—and far more likely but inaccurately—be thrown out by one of the devilish devices en route.
§ 4 p.m.
Lord Campbell of Croy
We are now considering the clause which deals with the new test of incapacity for work. My noble friend Lord McColl of Dulwich moved the amendment and spoke from his great 295 experience of the medical world and his own professional life. I very much hope that my noble friend the Minister and the Government will listen most carefully to the comments he made about the details of the new test as proposed.
I must say that I believe that the present situation is unsatisfactory. The test which is now undertaken for invalidity benefit places GPs in a most invidious position. I must make that clear because I believe that their relationship with their patients is involved and the possibility of shaking the confidence of some of those patients who have to come before the test is also in question. Therefore, I sympathise greatly with general practitioners about what is happening now. I believe that there should be a change. I accept that something should be done to relieve them of what I believe is a most invidious burden which they now bear.
However, I believe that the details of the new test must be considered with the greatest care. We have to consider some of the points which have already been raised and take into account particularly the comments and proposals of members of the medical profession, which include my noble friend who moved the amendment.
Baroness Darcy (de Knayth)
It is because my name is not on the amendment that I should like to signal how strongly I support it. It is essential to take other factors into consideration rather than only physical and functional limitations. Other Members of the Committee who have spoken, particularly the noble Lord, Lord McColl, have made a very good case for the amendment, so I shall not take up the time of the Committee. I hope that the Minister has listened very carefully and will reflect on and respond positively to the amendment.
§ Earl Russell
I should like to offer my thanks to the Minister—and through him to his officials—for the meetings which he arranged for us with members of the Benefits Agency Medical Services to discuss these tests. I do not think that we agreed on every point, but we found the meeting extremely helpful. We were very grateful indeed for the opportunity to have such a meeting. None of us would wish anything that we have said today to give any other impression.
There is a fairly strong procedural case to be made in favour of the amendment. Perhaps the most important aspect of the Bill is that it introduces a new test of incapacity for work. I could not describe Clauses 5 and 6 on that subject as forthcoming. They merely state that this will all be prescribed in regulation. While I would not want by any means to suggest that anything here comes within the Delegated Powers Scrutiny Committee's definition of a skeleton Bill, it is a Bill whose skeleton is showing at this point. I think that we should decently cover it with some flesh. This test is an extremely important one. I believe something should go into primary legislation to spell out exactly what is meant.
I also share the doubt which has been expressed in every quarter of the Chamber about the purely functional test. Take, for example, people who are in a 296 state of shock after some particularly traumatic stress: say, for example, the cases which have been reported recently of people who were in Hillsborough at the time of the tragedy. It would be possible to have a functional test which did not show anything at all in that case.
It is a regular phenomenon with back pain that there are tests which do not show anything. The patient says that it hurts and no one believes him. I remember one case of somebody with acute pain in the knee who was dismissed by several doctors as suffering from growing pains. I do not know exactly what the medical meaning of that term is. It was not until she went to a top orthopaedic surgeon and had the knee X-rayed that it was discovered the problem was a chronic abscess as a result of falling off her bicycle 10 years earlier. That is the type of problem which a functional test simply would not show up.
The noble Baroness, Lady Hollis of Heigham, mentioned glandular fever. There have been more cases among my pupils of that disease in this past year than in all the 30 previous years put together. They find it very hard to get back to work afterwards. I sympathise with them. I remember a time when exhaustion put a stop to my attempts to read Agatha Christie when I was in that situation. However, I do not always accept what every pupil says to me about his or her inability to work in that situation. To judge it, I find it essential to know the person and to know his or her record and to know quite how much weight I can put on the individual's assertions. That is why it is unfortunate that the GP will not be given an opportunity to express an opinion on fitness for work.
I understand the point that the noble Viscount and the Secretary of State, and others, have made in this connection. I understand that the GP is under pressure because he risks offending, and possibly losing, a patient, and thereby diminishing his income. If that is true, is it perhaps the first admission by the Government that performance related pay may have a corrupting effect? If that point is sound, one has to weigh it against the knowledge of the patient's history. Even if one accepts the point, one may not necessarily give it priority.
Will the doctor of the Benefits Agency medical service be allowed to express an opinion on the patient's fitness to work? It seems to me that at some point, whether from the GP or someone else, we need a medical judgment to be made on the fitness to work, not just the use of an allegedly objective test.
The amendment also deals with the question of what fitness for work means. We have an undistributed niggle in the Government's mind. We have the "own occupation" test; and we have the "all work" test. But a great deal of unfitness for work falls somewhere between the two extremes. I must reassure the Minister that we are not reintroducing the labour market considerations. We are concerned with people who for medical reasons are unfit to do any other work which they might otherwise have been capable of doing. Let us take an extreme example. Were I to become blind, I would in the short term at least be incapable of doing most of the work that I normally have done. But were I to be told that there was work available as a model, I do 297 not think that I would be particularly well suited to it. I do not believe that I should be regarded as capable of the work on the ground that I have no physical obstacle to doing such work —or should I say at least no medical obstacle to doing such work.
Alternatively, if I were to be told that there was a vacancy for an opening bowler for England, I might dearly love to take up that vacancy, but I somehow doubt whether on the grounds of age, experience or aptitude I could persuade someone that I was suitable. There has to be some concept of suitable work.
Let us take the case of a building labourer who loses the use of his legs. He may perfectly well be fit for work in some clerical capacity. But suppose that he also happens to be illiterate. In that case the statement that he is medically fit for clerical work is irrelevant and he should be held to be unfit to work even though he could do a clerical job. There has to be a sense of appropriateness. For all those three reasons I very much hope that the Minister will take the amendment seriously.
§ 4.15 p.m.
§ Lord Rea
As a general practitioner, I appreciate the considerations of the noble Lord, Lord Campbell of Croy. Yes, general practitioners are sometimes in a dilemma when they have to decide about one of their patient's fitness for work. That can occur when a patient who has been unemployed for a long time is sent to him by an official in the local Department of Employment office and asked to obtain a certificate of long-term incapacity from the doctor rather than to go on claiming unemployment benefit because he has a minor complaint. That has happened to me and my colleagues on numerous occasions.
I strongly support the amendment for the reasons put forward so eloquently by the movers of the amendment. I refer specifically to the absence in the Bill of details of the medical examination and of who will conduct such examinations. As my noble friend pointed out, all those factors are left to regulations, the content of which we do not know and which may alter from time to time. What is an "own occupation"? How is an "own occupation" test to be constructed? What is the "all work" test? We are left in the dark as to the exact nature of those proposed tests, who will perform them and where.
I believe that it is essential that more details are made known in the Bill before we pass it. The amendment gives claimants a degree of protection. As the noble Earl, Lord Russell, pointed out, it states the principles on which those tests should be based. I strongly support the amendment.
§ Lord Dean of Harptree
My noble friend Lord McColl is an acknowledged expert in this field. I am a layman. So with some hesitation I express some doubts about the amendment.
First, I doubt whether the details in the amendment can be reconciled with the original aims which my noble friend Lord Astor laid down in his speech on Second Reading. He said that the aim of the Bill is to refocus the benefits on those who are medically incapable for work. 298 That seemed to me to be an acceptable definition and a way of overcoming some of the acknowledged difficulties which exist at present.
He also said that we need a clearer and more objective assessment of incapacity. I agree with that too. I think that all Members of the Committee probably agree that those are both desirable objectives. However, when one considers the details of the amendment—for example, in new Section (1A) in which 16 hours a week is laid down—I find it difficult to judge whether or not that is a valuable factor until we have heard the views of the expert panel which is now considering the detail of the tests.
I am also doubtful about the reference in new Section (1B) to age and education. Age may be a medical factor in some cases; I am doubtful whether it is in all cases. I am equally doubtful whether education is a relevant factor for such a test.
I recognise, as has been said by a number of noble Lords, that fluctuating conditions are particularly difficult to deal with. That was one of the facts that my noble friend had well in mind in seeking to be more specific in his amendments. Asthma, back pains, multiple sclerosis and mental illness, all subject to changes in condition from day to day, will present some obvious difficulties.
The noble Baroness, Lady Hollis, said that the test, as she understands it, will measure only what one can count. Again with respect to her, I do not believe one can say that with any precision until we know what the expert panel produces.
§ Baroness Hollis of Heigham
I thank the noble Lord for kindly giving way. My comments were based on the presentation which the medical staff of the DSS gave to us at the invitation of the Minister. We found it helpful. Therefore, my remarks were in the context of the tests which they indicated would be presented to us.
§ Lord Dean of Harptree
I well remember that helpful briefing. However, the fact is that we are still at an early stage. The expert panel has not presented its detailed provisions. It would be unwise to write on the face of the Bill rigid conditions which the expert panel may not consider appropriate.
The noble Earl, Lord Russell, mentioned the problem of regulations. If we leave it all to regulations there are procedural difficulties as regards examinations. I accept that that is the case, but it seems to me that it is far better to retain the flexibility which regulations can allow than to have rigid conditions put on the face of the Bill that may in practice prove to be undesirable. Therefore, legislation may again be required, with all the attendant difficulties of time.
The more I look at the amendment and similar amendments, the more preferable it seems to me to wait until we have the views of the expert panel and then to proceed in a more flexible way which is possible through regulations.
The noble Lord, Lord Dean, and I served in another place in the same job, trying to control proceedings and I therefore find it almost 299 embarrassing to disagree with him. However, I am grateful that I follow him and did not precede him as it gives me an opportunity to deal with the points made.
The noble Lord was afraid that we might act too soon before we had listened to the voice of the experts. With every respect, we have heard the voice of the experts: those who deal with such people in their professional careers. I do not think that anyone who has listened to the arguments will feel that it is at all a party matter. The great advantage of this Chamber is that we can improve legislation by amendments recommended to another place. I honestly believe that the moving speeches made in support of the amendment should weigh heavily with the Minister before she replies to the debate.
§ Lord Swinfen
It may be helpful to my noble friend Lord Dean to know that the panel of 80 experts who are helping to devise the threshold above which the capacity to work is reduced were advised that "work" refers to any paid work in the open market for at least 16 hours a week. That is why the figure has been included, because the panel of experts is working to it. It is a person's capacity to perform the activities involved in work in the context of ordinary paid employment which is important.
§ Lord Dean of Harptree
What I said is that I think it is a mistake to prejudge the final report of the panel of experts when it is still at work.
§ Baroness Robson of Kiddington
I support the amendment wholeheartedly and I particularly wanted to support subsection (1C):A person is treated as incapable of work where a person's ability to perform work related activity is substantially reduced, not the point at which work becomes impossible".I think that that is the most important part of the amendment. The assessment of physical ability should include not only whether the person is able to do a certain thing, such as walk or stand, but how that task is performed and what it takes out of the individual to do the task. There is the recent example of someone's ability to walk to a test centre being taken as proof of ability to walk. It completely ignored the fact that the person might have taken three times as long as you or I would have taken to do that walk, with frequent steps. Many people could also be in great pain and, in my view, would not be in a position to work.
Like many other speakers, I am sad about the removal of the judgment of the claimant's general practitioner. I heard what has been said about the problems, but what worries me is that although the GP can give a diagnosis to the Benefits Agency, he will not be asked to comment on the claimant's self assessment nor to give his opinion on the claimant's ability to undertake any kind of work.
I agree with the noble Baroness, Lady Hollis, that, from a health point of view, probably no one knows a 300 patient better than his general practitioner. But the GP also frequently knows the patient from his whole background. A GP is usually aware of the family background and the general state of mind of his patient so his opinion would be of enormous importance. It is a tragedy that it has been removed.
Another matter which I ask the Government to contemplate is that the Benefits Agency Medical Services panel should include a physiotherapist. Physiotherapists routinely assess disability and mobility problems in the course of their work, frequently more than the medical profession. It seems to me that it is a tragedy that the Bill is being introduced at this point, long before the Government have decided what regulations will apply and long before they know quite where they are going. Would it not have been better to leave the Bill until the regulations were ready?
§ The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege)
As has been said this afternoon, this amendment seeks to change the definitions of the "own occupation" and "all work" tests expressly to include certain medical and non-medical factors and to re-introduce the subjective concept of reasonable work. I believe that these amendments are misconceived. First, the "own occupation" test will be a factual test of whether or not a person is well enough to do his own job. Secondly, the "all work" assessment will include all the medical factors raised by these amendments, such as pain, stress and general health.
Perhaps I may expand. The "own occupation" test of incapacity which will apply to most people for the first 28 weeks of sickness will be a test similar to that which applies under the current system. It will assess a person's capacity to do his normal job. It will take into account relevant factors, including a person's general state of physical and mental health, disabilities and capacity to cope with pain or stress. However, it will only take these factors into account in so far as they affect a person's capacity to do his usual job.
The primary evidence for incapacity during the first 28 weeks will be provided by the claimant's own doctor, as the noble Baronesses, Lady Hollis and Lady Robson, said.
§ Lord Swinfen
Will the noble Baroness allow me to intervene? As I understand it, the Bill talks about incapacity for work generally. My noble friend used the expression incapacity "to do his usual job". There is a considerable difference between the incapacity to do one's usual job and the incapacity to do any job. If what my noble friend just said is accurate, she is supporting the amendments.
§ Baroness Cumberlege
That is not the interpretation. The "own job" applies only to the first 28 weeks. The "all work job" applies after that and if my noble friend will let me continue I shall explain it as we go further.
The primary evidence for incapacity during the first 28 weeks will be provided by the claimant's own doctor. He or she will exercise his or her independent clinical judgment in deciding whether or not the person 301 concerned should refrain from their own occupation. But this amendment seeks to tell the doctors how to do their job. It advises them how to exercise their clinical judgment by specifying the factors that they should consider. We do not think that is necessary. Nor is it necessary to set those factors out on the face of the Bill. The GP takes into account a person's general state of physical and mental health, his disabilities and his capacity to cope with pain and stress, when he is judging whether or not the person is fit for work. Guidance to GPs will continue to make that clear.
The amendment affects both tests of incapacity. I have explained how the amendment is unnecessary in relation to the "own occupation" test. In relation to the "all work test", I can assure my noble friend Lord McColl that the new test will assess physical and mental disabilities which affect a person's capacity for work in a range of physical functions. Mental health will also be assessed and the effects of pain, stress and fatigue. All these will he taken into account in that assessment.
I think that the amendment may be based on a misunderstanding of how the new test is being developed and how it will operate. I do not say that as a criticism; it is a very complex matter. It may help the Committee if I briefly recap on the current development work on the test and how the test will be applied in individual cases.
We are trying to establish a new, more objective test, by obtaining an effective assessment of how the effects of an individual's medical condition limit his or her capacity to work. We shall do that by assessing a claimant's limitations in a number of areas of activity which are relevant to work: for example, standing, lifting, and stretching. As my noble friend Lord McColl said, the work-related activities we are using are based on the disability scales developed by OPCS during the 1980s in its disability surveys. But our development work has gone further, in adapting the scales to measure incapacity for work rather than disability.
My noble friend Lord McColl is concerned at the lack of detail in the Bill, and that point was mentioned by other Members of the Committee this afternoon. But the Bill sets the framework, as with other Bills. It is for regulations to pick up the detail. However, we are very anxious to get it right. Therefore we are undertaking a thorough consultation and evaluation process. The consultation document published in December has so far prompted over 350 responses. We are looking carefully at all contributions. In addition, Members of the Committee who attended the presentation on the medical test—which was referred to by the noble Earl, and I thank him for his comments—may remember that we have convened two expert panels to look in detail at the categories of functional limitation, to define thresholds, and to look at functional capacity in relation to particular jobs. The detail of the test will be revised to take account of the consultation process and the outcome of the panels' deliberations. An evaluation exercise with a sample of 500 volunteers will begin in May and last through the summer. When the evaluation exercise is over, we will issue a report which will summarise all the work that we have undertaken and present our proposals for the test on which we will be 302 seeking views. Only after all that will we present our final proposals on the test to Parliament for approval, in the form of regulations.
In the majority of cases, the new "all work" incapacity test will apply after 28 weeks, at which point a questionnaire will be issued to claimants. The questionnaire will give claimants the chance to record their own views on the effects of their conditions. Any claimant who has problems in completing the questionnaire will be able to seek help from one of our offices. The claimant's own doctor will then complete a statement of the diagnosis and principal disabling effects of the medical condition. I accept very much the remarks that were made by my noble friend Lord Campbell of Croy, in that we want some input from GPs, but we do not see it as their role to decide issues beyond the medical ones.
Most claims will then be referred for advice to the Benefits Agency Medical Services (BAMS). The effects of medical conditions can vary widely between individuals and over time. We want the assessment of capacity for work to be as full and fair as possible to each individual claimant. That is why, in the vast majority of claims, it will be necessary to seek specific advice from the Benefits Agency Medical Services.
The BAMS doctor will provide advice to the adjudication officer. In doing so, he will take account of all the evidence. That will include the claimant's past medical history and the information submitted by the claimant and his doctor. The BAMS doctor will use his clinical judgment in forming his opinion of the case. I can reassure the noble Baroness, Lady Hollis, that that will, of course, include taking account of the claimant's mental and physical health, any disabilities that he suffers and the effects of pain, stress or fatigue. Because many effects can vary from day to day or, indeed, from hour to hour, the doctor will form an assessment of the effects over time.
§ Baroness Hollis of Heigham
Forgive me, but will the Minister be kind enough to answer how he can form a judgment over time when he is not the GP and will have one interview?
§ Baroness Cumberlege
These doctors are experts in this particular field. They understand the pathologies of the disabilities that are before them. They take a medical history, and they also have a report from the GP. They will get a very full picture of the person's condition.
§ Baroness Hollis of Heigham
I thank the Minister again for allowing me to intervene. I am quite sure that at that point in time they will have the full snapshot. But it is a snapshot. The point that many of us made is that people's conditions fluctuate so much over time—not just over a week or a month, but over a year—that only the GP is likely to be able to make a proper qualitative judgment. It cannot be made in a one-off interview with a doctor. However expert in the pathology such doctors may be, they are not experts on the individual.
§ Baroness Cumberlege
That is absolutely true. A person's condition does fluctuate. That is one of the reasons why these doctors have to be experts in their field; why they have to listen to what the claimant tells 303 them; and why they have to take into account what the GP says. I can foresee that a GP's report will say, "Over so many months this patient has suffered this condition, but we have seen it worsen at certain times". I think that I should press on.
The adjudication officer will then weigh all the available evidence and reach a view of the claimant's level of functional limitation. He will do that by applying the scores and thresholds laid down in the regulations.
The amendment seeks to reintroduce the old system, whereby the "all work" test is to be defined by reference to work a claimant could reasonably be expected to do, and a claimant's capacity to perform the work-related functional activities will only be a part of the picture. This undermines the whole aim of the new medical test. As my noble friend Lord Dean of Harptree highlighted so lucidly, we are trying to get away from the subjective "supposedly-reasonable job" approach, with its lists of appropriate jobs, and all the disquiet and ridicule that that method of assessment has generated—as was highlighted very effectively by your Lordships in the Second Reading debate.
The noble Baroness, Lady Hollis, and my noble friend Lord Swinfen raised the question of whether this benefit should be paid on grounds of medical incapacity, and took particularly into account a manual labourer, for instance, who cannot read and write. It is not a benefit that is paid on grounds of age, on grounds of lack of education, or on grounds of lack of training. It is a benefit that is paid on medical incapacity to work. The manual labourer, in this circumstance, where training, education and age are taken into account, is not sick. He is unemployed; and the proper benefit for him is unemployment benefit. In adapting the OPCS disability scales to measure incapacity for work rather than disability, we are aiming at a more objective test of incapacity.
We are developing a test which will be a significant improvement on the current arrangements for the assessment of incapacity. The Committee will, I hope —and particularly the noble Earl, Lord Russell, and the noble Lord, Lord Rea—agree that, while the consultation and development period is still incomplete, it would be very foolish of us to set down the details in the Bill. As my noble friend Lord Dean of Harptree said, we need the advice of the expert panel before we set the details of this test.
My noble friend Lord Swinfen was concerned that the test would be merely mechanistic. The noble Earl, Lord Russell, was also concerned that medical judgment should be exercised. The independent clinical judgment of the departmental doctor, based upon scrutiny of the evidence and in some cases on examination of the claimant, ensures that the test will not be applied mechanistically. He will need to exercise his clinical judgment and knowledge of disability.
The noble Earl also raised the clinical condition in particular of post-traumatic stress syndrome, relating that to the whole issue of mental illness. The effects of post-traumatic stress syndrome are psychological in nature and manifest the mental health problems. The 304 mental health questionnaire, which is part of the new test, will focus on those particular disabilities and will assess them in regard to their effects on work. Stress syndromes will be picked up and quantified in the new test.
My noble friend Lord Swinfen was also concerned that people who could not work regularly would be found capable of work. People who cannot work regularly every week or who can only work each week in short irregular spells or only in a specially adapted workplace would not be found capable of work under these particular tests.
The only parts of the amendment which will not be covered by the new arrangements and which we do not wish to include in them are the references to age, education and training. As I said in this Chamber two days ago, age is not a disability and to include it as a reason for incapacity for work would encourage discrimination. Increasing age may be a factor in the development of physical conditions, but those conditions will be taken into account in the whole assessment of the claimant's physical state.
The "all work" test does not take into account factors such as training or educational qualifications. There are people who, through their medical condition, become unable to do their own job. Such people will be entitled to be measured against the "own occupation" test for the first 28 weeks. However, we do not think it right that they should continue to receive incapacity benefit for evermore simply because they are physically incapable of performing one particular job. That is why the "all work" test will be applied.
Equally, we do not think it right that people should continue to receive incapacity benefit when they are trained for only one job and no other. Unemployed people are expected to consider all work after a certain period. Incapacity benefit is specifically designed for those who are medically incapable of work and used as a test for medical incapacity. If a person cannot find work because he has little work experience or unsuitable educational qualifications, a benefit designed for the sick and disabled is not appropriate. Assistance offered elsewhere by the Department of Employment and the Department of Social Security is appropriate for those people.
I should like to finish with the good news. The final part of the amendment relates to the new functional test of incapacity. It seeks to specify on the face of the Bill that a person should be treated as incapable of work where his ability to perform work-related activities is substantially reduced, not where work becomes impossible. That was a point raised by the noble Baroness, Lady Robson. That is precisely what we intend to do.
The principle behind the proposal is one on which we already operate. The thresholds in each category of functional limitation and the combinations of those limitations will be set at the point at which a person's capacity for work is substantially reduced. It may reassure the Committee if I read a passage from the instructions on setting thresholds, which we sent to the panel which is working on the medical assessment: 305We want to define a threshold at which a person should be regarded as incapable of work for the purpose of deciding benefit entitlement. This means we are interested in the point on the scale of increasing severity of disability at which a person should not be expected to work, not the point where work becomes impossible".The development of the new medical test therefore is proceeding exactly along the lines suggested by this Chamber. This part of the amendment is unnecessary because what it proposes is exactly what we intend to do. For those reasons, I invite the Committee to reject the amendment.
§ 4.45 p.m.
§ Lady Saltoun of Abernethy
The noble Baroness said that regulations would be able to be debated by us. I am afraid that I find that of very little comfort. First of all, the regulations will be debated in another place and in that other place there will be a Whip put on and there will be no recalcitrant Cross-Benchers to outweigh the Whip. Therefore, the regulations are almost certain to be passed and when they come to this Chamber there is a convention that we do not divide on regulations which have been passed by another place. So I do not find the idea of the regulations coming before us to be very helpful.
§ Earl Russell
I should like to thank the noble Baroness for her comments on the last part of the amendment. However, I hope that between now and Report stage there will be time for a little more thinking. I appreciate just how difficult it can be to reply to a debate with points coming at you from all directions. But I was not altogether convinced that the reply at all points met the arguments put forward not only from this side of the Chamber but from many others.
In particular, the argument used by the noble Lord, Lord Dean of Harptree, that this provision is too early is one which perhaps risks proving rather more than it intended. Parliament is now asked to approve a test. If Parliament approves a test, in relation to this Chamber it will be too late to call back that approval and say, "Oh, I am awfully sorry but we did not mean it." It is said that the Emperor Caligula, when drunk, used to turn on his friends and say, "Off with his head", and the man's head was duly cut off. The next morning the emperor, recovered from his cups, used to send for the person and was told, "He has been executed." "Oh," said the emperor, "I did not intend it." When this test takes a final form, we do not want to look at it, be told we have approved it and say, "Oh, we did not intend it."
So, if it is too early to lay down general principles on the tests, it is too early for us to approve Clause 5. I do not see that we can have the argument both ways.
The noble Baroness also argued that this amendment told doctors how to do their job. I do not think that that is accurate. It tells the doctors what the job is that they are being asked to do—on what point they are being asked to pronounce on the person's fitness. It is a little analogous to asking counsel's opinion. If you ask counsel's opinion, you must state a case on which you ask the opinion. Otherwise counsel does not know what 306 he is being asked to do. This amendment should be seen rather as stating to the doctor a case on which the doctor is to be asked to pronounce.
I also found it a little curious to hear such a great defence of the doctor's judgment, when we are told that neither the GP nor the Benefits Agency Medical Services' doctor is to be allowed to pronounce on the person's fitness for work. I cannot understand how the Government can use both those arguments.
Again, the noble Baroness argued that it is an objective test. It is not an objective test. Somebody devised it. That somebody had a mind and, having a mind, had assumptions, outlooks and attitudes. Let us consider the American graduate record examination, which is a similar, allegedly objective test. I had to administer it when I was there. I set t and was rather disappointed by my own performance until I was assured that, on average, non-Americans did 20 per cent. worse than Americans on that test, save only for Canadians, who did 5 per cent. worse. That is a classic example of the exception proving the rule. This is not an objective test. It is a quantifiable test. Whitehall tends to confuse the two, but they are very different.
The problem is that a great many people are not convinced that the test will get anywhere near deciding who is incapable of work. Unlike any resemblance to any living person, the results that are accurate may be purely coincidental.
To my great disappointment, the noble Baroness has argued that we are going back to subjective criteria. As long as you have subjects, you have to look at the individual case. If any attempt to look at such a case is to be dismissed as subjective, then I do not see how we can ever pay attention to the people before us which, after all, is what we have to do. The noble Baroness is still anchored to the undistributed middle between the "all work" test on the one hand and the "own occupation" test on the other. There is no response at all —I hope that there will be at Report stage—to our argument that there are situations of unfitness for work which come in between those two opposite poles. I do not ask the Government to agree with us on that, but I ask them to notice that that in fact is our opinion and if it is not theirs, to tell us why it is not.
We are not saying that education or age are medical conditions. We are saying that they are conditions which affect the type of work for which we might reasonably hope to be considered. If you are not fit for any type of work for which in perfect medical health you could hope to be considered, then in my book you are not fit for work.
§ Baroness Hollis of Heigham
Perhaps I may first make a comment. When the Minister uses the word "subjective", I would use the word "qualitative". When she uses the word "objective", I would use the word "mechanical". It is a question of language. In the Minister's notion of an objective test, we are saying that she is instead relying on a mechanical test which seeks to measure functional incapacity, which in turn bears little relation to the capacity for work.
I wish to press the Minister a little more on her views as to the work of the panel. Can she tell us whether all 307 the 80 members of the panel are still on board, so to speak? Can she tell us how the work is progressing and whether the members currently on the panel are comfortable and accept the framework within which they are being asked to work? In other words, can the Minister say what they are doing and how they are progressing? Does the scheme, as proposed, enjoy the full confidence of the panel?
§ Baroness Cumberlege
I understand that when the panel was appointed the members wanted it to be confidential and did not want their names to be released. They wanted to be open among themselves in the work that they were doing and they wanted to exercise their personal judgment. As such, I would not wish to betray the fact that they would be able to operate in confidentiality.
Perhaps I may now take up some of the points made by the noble Earl. It is very difficult when one is trying to put forward legislation such as this. The purpose of the Bill is to set the framework. The details which are to be put forward through regulations are very detailed. It is appropriate that the method of doing that should be through regulation. Work started 18 months ago on these tests. For the first 10 months all that work was done in-house. But we wanted to be open about it. We wanted to involve other people, including these 80 experts. Therefore it is very important for the success of the Bill that this work should be completed; that it should be done well; and that it should be ongoing. The panel is now into its third phase and is continuing its work. The Bill is no different from others and it is crucial that the work continues.
As regards the whole purpose of regulation, I say to the noble Lady, Lady Saltoun, that I understand that this House has voted 26 times against regulations since 1979, so there is opportunity for your Lordships to express your views.
§ Lord Rea
Before the mover of this amendment decides whether to press it, I thought that the Committee would be interested to hear examples of some of the questions which comprise the test for mental health incapacity. I have just received this fax. The questions are from A Consultation on the Medical Assessment for Incapacity Benefit received from the Benefits Agency this year. These are some of the questions asked to assess people's mental condition:
I believe that those questions speak for themselves. Perhaps the amendment should guide what the tests are to comprise. They are going the wrong way at the moment.
- "Do people or things so upset you that you just lash out?
- Do you prefer to be left totally alone at all times?
- Do you feel panic if you are on your own even for a brief time?
- Do you need someone always in reach in case of problems?
- Do you need someone to encourage you to get up and dressed?
- Do you often sit for hours doing nothing?"
§ Lord Swinfen
My noble friend has just told the Committee that this House has voted against regulations on a number of occasions since, I believe she said, 1976. I find surprising the number that she gave. Can she tell the Committee whether these regulations had previously 308 been agreed to in the other place or whether they came to this House first, where there is possibly an opportunity for us to do something about them? Is she prepared to give an undertaking that the regulations under this Bill will be laid before this House first rather than another place?
§ Lord Carter
Before the noble Baroness answers, I believe that when she referred to the number 26 she was including an example which we had only this week; namely, a Motion to call on the Government to delay implementation or something of that nature. It was not voting against regulations. I would find it very surprising if this House had voted 26 times to reject regulations.
§ Baroness Cumberlege
I sense the feeling of the Committee. I recognise the wisdom in your Lordships' House. I would certainly would not wish to press this point. I may well have got the figures wrong, in which case I would like to withdraw them.
§ Earl Russell
The noble Baroness has not got the figures wrong. I have all the relevant papers lying on the floor of my study. I have not got them to hand so I cannot immediately answer the question of the noble Lord, Lord Swinfen. But I can answer it for him by tomorrow if necessary. The figures certainly do not include regulation cases when Motions to resolve are tabled. There are precedents and I believe that the last one was in the name of the noble Lord, Lord Graham of Edmonton.
§ Baroness Cumberlege
It is very encouraging to find that help comes from unexpected quarters. I am very grateful to the noble Earl. If Members of the Committee would like it, I shall put some evidence in the Library. Perhaps I may respond to the noble Lord, Lord Rea, about the questions on mental health. The questions in that consultation document are now out of date. Work continues on revising those tests, so I can reassure him on that point.
§ Lord Boyd-Carpenter
If my noble friend is right in saying that since 1979 there have been 26 occasions when this House has rejected a regulation, that is news to many of us. Will she not merely put in the Library, but circulate in the Official Report a list of those cases which she says make up the 26? Until I can see that, I reserve my views.
§ Earl Russell
Perhaps I may be permitted a small clarification. These are not cases where the House has rejected regulations. It has voted on a Motion to do so but none of them has been carried.
§ Baroness Cumberlege
I hope that the matter is now a great deal clearer. I shall certainly put the evidence which my noble friend seeks in the Library. The principle is really established. Tonight I am urging Members of the Committee to reject this amendment.
§ Lord McColl of Dulwich
I thank my noble friend very much for her careful reply which I shall study in detail in Hansard. I have always been impressed with how severely disabled ex-servicemen, who have, for 309 instance, lost both legs, have made light of their disability. I have always been impressed by this marvellous attitude on their part which has often been totally misconstrued by assessors who have been ignorant of their personality, their courage and their unselfishness. So I do have reservations. However, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5 p.m.
§ Viscount Astor moved Amendments Nos. 27 and 28:
§ Page 10, leave out lines 7 to 16.
§ Page 10, leave out lines 26 to 32.
§ The noble Viscount said I spoke to these amendments with Amendment No. 18 at an earlier stage. I beg to move.
§ On Question, amendments agreed to.
§ Viscount Astor moved Amendment No. 29:
§ Page 10, leave out lines 33 to 39.
§ The noble Viscount said: In moving Amendment No. 29 I should like to speak also to Amendments Nos. 40 and 58. The effect of Amendment No. 29 is to delete Section 171A(7) from the Bill. Amendment No. 56 is a small consequential amendment to Clause 6 of the Bill, which deletes a reference to subsection (7). Amendment No. 40 is a consequential amendment to Section 171C. It may be helpful if I explain the original purpose of subsection (7) and why we are proposing to delete it.
§ Section 171A provides for incapacity for work to be measured in the same way across the social security system and for regulations to be made which are common to both tests of incapacity. It may help if I recap on how the test will operate. As with any other benefit, claimants for incapacity benefit will have to supply the necessary information to support their claims. This will include, in some cases, attending medical examinations. It will take some time for the test to be completed. And so that we do not leave people without money, we will deem them as satisfying the test on the basis of a medical certificate. Section 171A provides regulation-making powers which, among other things, treat claimants as being capable of work if they fail, without good cause, to supply such information.
§ Subsection (7) provided a power for regulations to be made so that where a decision had been made to treat the claimant as capable of work because of his failure to supply information the claimant would in these circumstances continue to be treated as capable until such time as the information is provided. Also, where a claimant has been found capable of work because he has failed to satisfy the tests of incapacity, he shall continue to be treated as capable until such time as he provides evidence of a material change in his condition. The purpose of this subsection was to amend the power which exists to deem people as satisfying the test while the test is being carried out, where a person has previously failed to provide information or been found capable of work.
§ One of the amendments proposed in Committee in another place was to delete subsection (7). After discussion, the amendment was withdrawn. However, we agreed to look again at the provision. It seems to be 310 redundant. We do indeed need the powers that I have outlined, but they can be provided for by a small amendment to Section 171C. We propose therefore to delete Section 171A(7). Amendment No. 56 is a small, consequential amendment which deletes a reference to that subsection in Clause 6, Section 61A(3) (a).
§ Amendment No. 40 inserts a new paragraph in Section 171C(3). Subsection (3) allows regulations to be made to treat, if the prescribed conditions are met, the "all work" test as being satisfied until the claimant has been assessed under that test. This will allow us to continue to pay claimants incapacity benefit during the period that the "all work" test is being applied. The purpose of the new paragraph is to ensure that a claimant who has been previously treated as capable or found to be capable is not deemed incapable if he claims the benefit again when his circumstances have not changed. The prescribed conditions will include that it has not been previously determined within a prescribed! period that the claimant is, or is to be treated as, capable of work. In other words, for the "all work" test to be treated as satisfied, one of the prescribed conditions will be that no previous decision on the person's capacity has been made within a prescribed period.
§ The situation that we wish to avoid is one in which someone is paid benefit during the period that the "all work" test is applied, fails to meet that test and is found to be capable of work, then reclaims benefit shortly afterwards and is again paid while the "all work" test is applied again. We are trying to prevent anyone from playing the system.
§ The purpose of these amendments is to delete a redundant provision and to clarify the remaining regulation-making powers. I beg to move.
§ Baroness Hollis of Heigham
Perhaps I may use this as an opportunity to press the Minister and ask him a question. We understand the technical points he is making in clarifying some of the technical regulations. Will he confirm for the record that someone who fails the incapacity for work test and therefore loses that benefit will automatically be eligible for unemployment benefit or, when it is appropriate, income support—in other words, he will not subsequently be judged unavailable for work and not actively seeking it by virtue of a continuing disability which, however, is not regarded by the incapacity for work test as sufficient to qualify him for benefit?
As I understand the noble Baroness —I shall have to read what she said—she is asking whether someone who is on incapacity benefit and then fails the test and comes off incapacity benefit will be able to claim other benefits if they qualify. The answer to the general point is yes.
§ Baroness Hollis of Heigham
I know the answer to the general point: yes, if they qualify, they qualify. My question is whether, by virtue of not qualifying for incapacity benefit, that automatically means that they qualify for unemployment benefit or income support. To make the point very obvious, what we are afraid of is that some people may fail a new stringent test who in the past would have received invalidity benefit and 311 therefore be regarded as not sick or disabled enough to be incapable of work; but, on the other hand, when they go down to the unemployment office or the income support office they will be deemed not fit enough to be held capable of work—available for and actively seeking work. Therefore, they could fall between two stools and not be eligible for either benefit. That is what I am pushing the Minister on.
I understand the noble Baroness's anxieties. They can get unemployment benefit if they qualify and are actively seeking work, which they would be if they come off the test. If for some reason they do not qualify for unemployment benefit, income support is available.
§ Baroness Hollis of Heigham
The Minister is saying that if one fails the incapacity for work test one thereby automatically qualifies in terms of eligibility for unemployment benefit or income support. Obviously, one still has to pass the test of actively seeking work—
The noble Baroness is putting words into my mouth which I did not say. If she cares to read Hansard, exactly what I said about qualification for benefits will become clear.
§ On Question, amendment agreed to.
§ Viscount Astor moved Amendment No. 30:
§ Page 10, line 41, leave out ("12") and insert ("21").
§ The noble Viscount said: I beg to move.
§ Lord Swinfen
This amendment is grouped with Amendment No. 31, by which I am endeavouring to increase the period from the current 12 weeks to 52 weeks. I very much appreciate that my noble friend the Minister has moved on this one and has moved quite a way. That is a step in the right direction. However, I wonder why he has stopped at 21 weeks and not gone on to 28 weeks which would tie in with other benefits and therefore probably make it much easier to administer.
Perhaps I should apologise to my noble friend. Amendment No. 30 is my amendment which, when I moved it, I thought was grouped with Amendment No. 29, which, of course, it is not. Perhaps it would help my noble friend if I spoke to Amendment No. 30 first and then allowed him to speak to his amendment, Amendment No. 31, which is grouped with it.
The effect of Amendment No. 30 is to extend the application of the "own work" test at the onset of incapacity to people who have been engaged in an occupation in more than eight weeks in the past 21 week period. My noble friend's amendment seeks to extend the period further to more than eight weeks in the past 52 weeks.
The Bill that we are considering introduces two tests of incapacity. The "own occupation" test will apply to most people at the onset of their period of sickness. It is a test of whether people can do their own job. The proposal mirrors the current system. For the purposes of the test, we have to have a definition of "own occupation". When the Bill was considered in another place, we proposed that this definition should be that if 312 someone had worked in more than eight weeks in the past 12 weeks, he should undergo the "own occupation" test. If someone did not fulfil that requirement, he should undergo the "all work" test at the beginning of his incapacity.
In the discussions in another place, it was said that that definition was unreasonable and we undertook to consider the matter further. Having done so, I can tell the Committee today that we agree that the definition is unreasonable. It would mean, for example, that someone who has been in work for 20 years and is then made redundant would face the "all work" test immediately if he fell sick after five weeks of his redundancy.
I should also explain that, in defining the "own occupation" test, our aim was to produce a simple and workable definition which would ensure that as many people as possible would undergo the "own occupation" test when they fell sick. Only in exceptional circumstances did we expect that anyone would have to undergo the "all work" test at that stage.
The amendment in the name of my noble friend seeks to extend the period under consideration to more than eight weeks in the past 52 weeks. I am afraid that I am not able to accept this. There is no evidence that the amendment would have the suggested impact on the disabled. It is in fact the case that people with disabilities have better work attendance records than the rest of the population.
Perhaps more importantly, the idea behind the definition is that it relates the test of incapacity to an occupation which the person has recently undertaken. If the Committee accepted my noble friend's amendment, it would allow a situation in which someone could begin a job in January, do it for nine weeks, then leave it and register as unemployed, claim incapacity benefit in November and still be assessed against that job. I do not think that many people would consider it reasonable to assess a person's incapacity against a job which he has not done for a period of some months, especially as, when unemployed, the same individual would be treated as being available for all work.
The amendment I am supporting proposes a middle way. It would mean that a person who had undertaken an occupation for more then eight weeks in the past 21 weeks would face the "own occupation" test at the onset of incapacity. We think that that is a reasonable period.
When this matter was discussed in another place, there was some discussion about whether, for example, people on leave or on training courses would be included. It might be helpful if I clarify the matter. The amendment would allow anyone who had worked for more than eight weeks in the past 21 weeks to undergo the "own occupation" test. If the person had been on paid leave from his job, or undergoing training paid by his employer or connected with that job, we would not count him as being unemployed. We are still considering whether it would be possible to include other types of training in the provision. In addition, if the person had had more than one job, we would add the periods together. If the person had had more than one job at a time, we would include him in the provision, as long as each job took more than 16 hours per week.
313 I hope that I have explained that we aim to operate the application of the "own occupation" test at the onset of incapacity as flexibly as possible. I believe that the period that I have suggested is a reasonable one. I hope that, with that explanation, my noble friend will understand why I believe that my amendment is perhaps preferable to his.
§ Lord Swinfen
I do not know that I necessarily consider Amendment No. 30 to be preferable to mine. That might dent my personal pride. To be honest, I am human. Although, as I said earlier, I am pleased that my noble friend has tabled an amendment which moves in what I consider to be the right direction, I wonder whether between now and the next stage he will give a little further consideration to this matter. I think that, in order to protect people in the widest possible circumstances, a period of 28 weeks would be better than 21 weeks. I do not need my noble friend to reply on that point now, but perhaps he will consider the point and possibly table an amendment on Report.
§ 5.15 p.m.
I understand the point that my noble friend makes. He asked why we have chosen a period of 21 weeks. One of the reasons is that there is a parallel with unemployment benefit under which people can restrict their search for a job to their own occupation for up to 13 weeks, after which they must widen the search and they are considered available for all work. Amendment No. 30 introduces the same period into the qualification of the "own occupation" test. We are trying to align the rules throughout the social security system because that makes for a much simpler system.
As I said, we are considering whether it will be possible to include other types of training in the provision. I am happy to give my noble friend the assurance that between now and Report stage I shall study carefully what he has said. Obviously, I cannot give my noble friend any commitment that I shall be able to return with an amendment in his favour.
§ Baroness Hollis of Heigham
We appreciate that the Government have moved from their original 12 weeks to 21 weeks. That is welcome. Perhaps the Minister will clarify a point for me. It might just be a matter of mishearing because of the microphones in the Chamber. I was not sure whether the noble Viscount said that, if someone was on a training course, that would count as being unemployed or employed. I wonder whether the Minister can clarify that. I believe that it came fairly early on in his brief.
I said that we are looking at training as a whole. I gave that commitment. I said that if a person had been on paid leave from his or her job or undergoing training paid for by the employer or connected with that job, we would not count that person as being unemployed. We are considering whether it would be possible to include other types of training within the provision.
§ Baroness Hollis of Heigham
That is helpful. It meets some of the concerns that were raised in another place. I should like to support some of the comments 314 made by the noble Lord, Lord Swinfen. We are seeking the same sort of approach as in the linking rule on DWA. Somebody who is disabled because of a fluctuating medical sickness condition may have a very different work history in terms of attempting to return to work than somebody who is not so disabled. I think we are all agreed that the rule may be reasonable for somebody who is fit. We would perhaps accept the Minister's point that the rules may not be unreasonable for somebody who is disabled but with a steady disabled condition.
However, there is a third category of people whose sickness condition fluctuates. They may come in and out of work and even the 21-week rule—although a welcome advance—may not allow them a sufficient or realistic opportunity to return to their own occupation. I am afraid that the moment that one presses an "all work" test on those people, one ensures that they will be denied benefit because, by definition, they can do some work even if that work is not realistically within their grasp, as we explored earlier this afternoon.
§ On Question, amendment agreed to.
§ [Amendment No. 31 not moved.]
§ Lord Swinfen moved Amendment No. 32:
§ Page 10, line 49, at end insert ("having regard to personal factors such as age, state of physical and mental health, capacity to deal with pain and stress.").
§ The noble Lord said: In moving Amendment No. 32, I should like to speak also to Amendment No. 38 with which it is grouped. The amendments are designed to ensure a definition of incapacity which includes relevant factors in addition to physical and mental disablement. They seek to reinstate a definition which includes non-medical factors. The new so-called "objective medical test" will assess only physical and mental functions. As such, it can measure only impairment, not incapacity. A purely diagnostic and functional test, based on scoring ability to carry out functions of daily living, is not the same as looking at "workability". Incapacity for work is a more complex matter, because a range of other factors is relevant. Medical evidence is of course necessary, but it is not sufficient.
§ Introducing a new functional test represents an overreaction by the Government to the increasing number of people receiving invalidity benefit. The independent Policy Studies Institute has found that there is no evidence that more people are making new claims for benefit, rather that fewer are leaving benefit. It estimates that the increase in claims can be accounted for in demographic terms so that, for example, 29 per cent. of the increase is comprised of people over pension age who would otherwise be drawing retirement pension, and 16 per cent. is due to more women in the labour market paying national insurance contributions.
§ The PSI has stated that it is a mistake to discount all reference to environmental factors in considering incapacity for work. External influences have to be taken into account in so far as they impinge on the experience of a particular claimant. The test for incapacity now applied under invalidity benefit includes factors which interrelate with disablement to constitute incapacity. That has been developed since the introduction of national insurance sickness benefit in 315 1911. It has rightly been regarded as a sensible approach otherwise no one would be considered incapable of work.
§ In 1951 social security commissioners held that someone was to be considered incapable of work if, having regard to his age, education, experience, state of health and other personal factors, there was no work or type of work which he could be reasonably expected to do. That is designed to ensure that people are only considered capable of work which is realistically within their grasp. Whether there is a job available is not a relevant consideration, nor are personal factors, such as domestic commitments, which have no bearing on incapacity.
§ If the capacity to deal with pain or stress is not taken into account, people may be regarded as fit for work, but be unable to deal with the stress of work. One woman with a diagnosis of schizophrenia trained as a teacher and was desperate to go to work. She found some unskilled work, shelf filling in a supermarket, but could never do more than a few days even at that sort of work as she could not cope with the stress of getting up and sustaining the pressure of a full day's work. Her health deteriorated until an adviser ensured that she had regular invalidity benefit payments and sheltered accommodation.
§ Under the present system a person with a background in manual work, as has been said earlier, with no educational qualifications could be regarded as incapable of work as factors such as education and employment background are taken into account. However, the new test is expected to be far more stringent. It is expected that some 200,000 people on invalidity benefit will be excluded as a result of the new test. I gathered that information from Hansard of another place dated 9th February (col. 369). It is possible that a person in that condition could be deemed to be capable of work under the new test of purely functional ability.
§ As has been said, concentrating upon purely functional limitations could disentitle some people from benefit. People with fluctuating conditions who may not be able to carry out a function repeatedly; people with a long-term debilitating illness whose condition can worsen if they are forced into employment prematurely; people whose disabilities are invisible, such as those with chronic pain who often encounter difficulties in convincing others that their pain is real; people who have managed their disability, for instance, by way of medication, treatment or supervision, could be regarded as cured if measured by functions alone. Yet they would not necessarily be capable of work. Making them work or sign on as unemployed could act as a disincentive to any final rehabilitation.
§ Excluding non-medical factors which are relevant to incapacity for work will create further hardship for thousands of disabled claimants and merely transfer statistics onto unemployment benefit or income support. I beg to move.
§ Earl Russell
This is a good amendment, and I support it. When I said a little earlier that I do not accept 316 that this is an objective test, one of the best reasons I can see for taking that view is the decision that it should be a purely functional test. It should be clear by now that that was an intensely controversial decision, and therefore whether you think it right or whether you think it wrong, not an absolutely objective decision. It is a decision which represents one point of view.
The reason why the Government have taken that decision is their determination to exclude all non-medical factors. I understand why they may have wanted to do that, but you cannot do that for the simple reason that there is not a single thing called work. Work covers a great variety of activities, and there are a great many of us here, I think, who work very hard indeed, who might possibly fail a great many of those tests. The tests in the consultation document that was published are not in any way related to any specific occupation. The scoring of the test is not in any way related to what sort of work you are looking for. You simply cannot consider whether a person is fit for work until you can discuss the particular work for which they might or might not be fit. That is why we cannot use an assessment of incapacity for work which does not take into account what are the types of work for which that person, if they were fit, might reasonably be required to look.
I do not believe that I need give any more examples of that. The point is, in its own nature, clear enough. One either agrees with it, or one does not. Until we can consider the question of suitability for work, I do not see that we have any prospect at all of deciding who is incapable of it and who is not. The test will produce a list of people who are said to be capable and a list of those who are said to be incapable. It will have a great deal to do with the scoring system. It will not, in my view, have much to do with whether they are or are not capable of work.
§ Lord Carter
Our earlier debate was concerned overall with the test for incapacity for work. The amendments deal, as we know, with the "own occupation" test. Although the debate is somewhat similar, it is important to recognise the difference. We are now dealing with the "own occupation" test and not the "all work" test. I do not wish to repeat the arguments about the problems that we are having due to all the details being left to regulations, but I am sure that the Minister is aware, if she was not before, that that is causing a great deal of concern.
The noble Lord, Lord Swinfen, explained the amendments extremely well. What we are trying to do is to improve the test. It has nothing to do with controlling numbers or anything of that nature. It attempts to add to the "own occupation" test in Section 171B(2) the personal factors such as age, state of physical and mental health and the capacity to deal with pain and stress. It is intended to improve the definition. I emphasise that because I hope that when the Minister replies she will not introduce figures showing that there is a need for change because there are more people claiming. The amendment has nothing to do with that. It has to do with obtaining a definition of the test which 317 will be fair to the applicant and the taxpayer. It is all about ensuring that the "own occupation" test is properly defined and fairly applied.
I wish to make a general point which applies to the "own occupation" and "all work" tests. We have heard that the details of the tests will be in regulations and that the research work and so forth is being carried out. We understand that it will be some time before we know the final details. Is it intended to put all the details in regulations or is it more likely that there will be a combination of regulations and guidance notes, as is normally the case?
On previous occasions guidance notes have been circulated in draft to Members who are interested for consultation. Does the Minister anticipate that the details of the test will be a combination of regulations and guidance notes? If so, will it be possible to see the guidance notes and to make comments on them?
§ Baroness Cumberlege
Amendments Nos. 32 and 38 seek to define the factors to be considered both in the "own work" test and the "all work" test and to prescribe these on the face of the Bill. Despite what the noble Lord said, the "all work" test is covered too. As I have said before, these amendments are misconceived. First, the "own occupation" test will be a test of whether or not a person is well enough to do his own job. Secondly, the "all work" assessment will include all the medical factors raised by these amendments, such as pain, stress and general health.
As I have explained, Amendment No. 32, which refers to the "own occupation" test, is not necessary. The "own occupation" test of incapacity, which will apply to most people for the first 28 weeks of sickness, will be a similar test as applies under the current system. It will assess a person's capacity to do his normal job. It will take into account a person's general state of physical and mental health, disabilities and capacity to cope with pain or stress. Training and education are unlikely to be important factors at this stage, as the person will evidently be sufficiently trained and educated to perform his own job.
The primary evidence for incapacity during the first 28 weeks will be provided by the claimant's own doctor. Like any other doctor, he will exercise his independent clinical judgment in deciding whether or not the person concerned should refrain from his own occupation. The amendment advises doctors how to exercise their clinical judgment by specifying the factors that they should consider. We do not think it is necessary to do this. Nor is it necessary to set it out on the face of the Bill. The GP knows to take account of a person's general state of physical and mental health, his disabilities and capacity to cope with pain and stress when he is judging whether or not the person is fit for work. Guidance to GPs will continue to make this clear.
As I have said before, I think that Amendment No. 38, which specifically includes a number of medical and non-medical factors in the assessment of incapacity for all work, is based on an understanding of how the new "all work" test is being developed and how it will operate. I can assure Members of the Committee that the new test will assess all the physical and mental 318 disabilities which affect a person's capacity for work in a range of physical functions. The effects of pain, stress and fatigue will all be taken into account in that assessment.
We have set this out specifically in our development. work on the test. In the instructions on this point to the assessment panel we stated:Where pain is not mentioned explicitly, it should still be taken into account as a constraint on a person's ability to perform an activity. In other words, someone who is effectively prevented from doing something by pain should be regarded as equally incapacitated as someone who cannot perform the activity at allThe same principle applies to stress and fatigue. Mental health will also be assessed by separate procedures. A sub-group of the main assessment panel is currently working in this area.
The only parts of Amendment No. 38 which will not be covered by the new arrangements and which we do not wish to include are the references to age, employment history, education and training. Age is not a disability and I believe that it encourages discrimination. Of course, increasing age may be a factor in the development of physical conditions but that will be taken into account in the whole assessment of the claimant's physical state.
The "all work" test does not take into account factors such as training, employment history or educational qualifications. Of course there are people who, through their medical condition, become unable to do their own job. Such people will be entitled to be measured against the "own occupation" test of incapacity for the first 28 weeks. However, we do not think it is right that they should continue to receive incapacity benefit far evermore simply because they are physically incapable of performing one particular job. That is why the "all work" test will be applied.
Equally, we do not think it is right that people should continue to receive incapacity benefit because they are trained only for one job and no other. Unemployed people are expected to consider all work after a certain period. Incapacity benefit is specifically designed for those medically incapable of work and uses a test of medical incapacity. If a person cannot find work because he has little work experience or unsuitable educational qualifications a benefit designed for sick and disabled people is not appropriate. Assistance offered elsewhere by the Departments of Employment and Social Security is appropriate for him.
Amendment No. 38 seeks to reintroduce into the "all work" test the element of subjectivity that was such a problem in the old system. We are trying to get away from the subjective "supposedly-reasonable job" approach, with its lists of appropriate jobs and consequent problems, many of them cited by Members opposite. With this test we are aiming at a more objective test of incapacity.
Perhaps I may pick up the point made by the noble Lord, Lord Carter. Time is being taken to develop these tests. However, we hope to reach a conclusion in August when a report will be produced. That report will be out for full consultation before the regulations are drawn up and laid before the House.
§ Lord Carter
I asked the Minister about the guidance notes, which are so important. One would expect a report to be circulated and it would be helpful if the guidance notes were attached to the regulations and circulated in draft.
§ Baroness Cumberlege
Yes, that will be the case. Guidance will be made public so that people can comment on it.
§ Earl Russell
As we go through the debates I beg the Minister not to repeat the argument that age is not a disability. No one has argued that it is. That argument is a complete misunderstanding of the case which is to be met. We have not argued that age makes people incapable of work. To argue that here would be a contempt of this House and I have no intention of doing so.
We have argued that age affects the type of work for which you might be found fit. I do not believe that at the moment I would volunteer for work as an Olympic oarsman but I regard myself as being perfectly capable of work. The Minister is still impaled on problems created by thinking of fitness for all work and not thinking of fitness for work for which one is capable.
I beg her also not to repeat the argument that the case we are trying to make is subjective. We are simply trying to say that we are considering subjects. Each person is a subject and each person has particular aptitudes. Within the meaning of the language as I understand it, I do not regard it as subjective to say that one ought to consider the work for which that individual person is fit.
The noble Baroness said that we have not understood the test but I am afraid that we have understood it all too well. As the debate goes on, what she is convincing me of is not what she intended. She is convincing me more and more that it is not possible or desirable to attempt to compile a single test to assess fitness for all work. The fitnesses one needs for different kinds of work are so completely different that it simply cannot be done within the scope of a single test. In fact, the noble Baroness is convincing me that the whole project should be scrapped. If she says that what we say is fundamentally in conflict with what the Government are doing she is encouraging us to vote out the clause altogether. I do not believe that is what she intended but that is what she has done.
§ Baroness Cumberlege
The noble Earl may not agree with what I said but we are clear about what we want to achieve in terms of incapacity for work. We believe that the benefit should be judged on medical factors alone but these amendments try to bring in other issues. The noble Earl may believe that the arguments I have put forward about age are not relevant. I believe that on Second Reading mention was made of the fact that age is a disability in itself. We say that it is not and that, although it can contribute to a range of disabilities, those will be taken into account when the tests are carried out.
On the question of jobs, what is available and whether one is fit to do them, perhaps I may just say to the noble Earl that I share his view that neither he nor 320 I will ever be an Olympic oarsman, but that does not mean that we cannot look for jobs in other areas. That is what the "all work" test is about: it is fitness for work but it does not mean to say that all people can do all jobs.
§ Earl Russell
Perhaps I may just clarify what I said. I was not saying that what the Government are doing is wrong. If it could be done, it might be very good. I am saying that it simply cannot be done at all.
§ Lord Swinfen
I thank all those who have taken part in the debate. In the last part of my noble friend's winding up remarks she insists that the Government are attempting to rely solely on a medical test. That reminds me of a famous story: the operation was a great success; unfortunately, the patient died.
I should like to read what my noble friend said and to consider it. I must admit that it is very likely that I shall return to this matter on Report, either with the same amendments or with a revised version of them. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Swinfen moved Amendment No. 33:
§ Page 11, line 8, leave out ("197th") and insert ("365th").
§ The noble Lord said: This amendment seeks to make the "all-work" test applicable at the same stage as the long-term rate of incapacity benefit becomes payable.
§ The Bill extends the period classed as short-term incapacity from 28 to 52 weeks. That means that benefit entitlement is delayed for a full year, resulting in a lower level of payment than is currently available under invalidity benefit. At the same time as redefining short-term incapacity at 52 weeks, the new "all work" test remains applicable at 28 weeks. That will mean that people who pass the test at 28 weeks will be regarded as incapable of all work but not entitled to full benefit for a further 24 weeks.
§ The Government appear to be wanting to have their cake and eat it by changing the definition of long-term incapacity to 52 weeks for payment purposes but keeping 28 weeks for the "all work" test of incapacity.
§ As the Committee will appreciate, the amendment is a fall-back position on Amendment No. 1, which we dealt with on Tuesday. That sought to restore the status quo in the definition of long-term incapacity and therefore provide for full payment of benefit at 28 weeks.
§ Since 1971 long-term incapacity has been regarded as commencing after the 28th week. The payment of invalidity benefit, introduced by a Conservative Government, after 28 weeks of sickness benefit has marked the beginning of the long-term period. Assessment of incapacity for work has followed that pattern. For the first 28 weeks of incapacity, when short-term benefit is paid, incapacity for work is assessed by reference to the claimant's usual occupation. After that time, alternative work can be considered, although there is no set period within the legislation when all work should be considered. Guidance issued to GPs by the Department of Social Security states that when a patient has been incapable of work in his normal occupation for six months or more, 321 consideration should be given to what alternative work he could reasonably be expected to do. That coincides with the payment of invalidity benefit after a period of 28 weeks.
When discussing Amendment No. 1, my noble friend Lord Astor said—and it is recorded at col. 101 ofHansard—that the different rates of benefit were designed to reflect the cost of short-term and long-term periods of incapacity. He went on to say:
'"They are not in any sense a reward for passing the medical test. The rate of benefit and the test are independent of each other. If a link was intended, then the Bill would provide that the long-term rate of benefit was dependent on satisfying the 'all work' test".—[Official Report, 19/4/94; cols. 101–102.]
§ However, the Government intend to change the definition of long-term incapacity from 196 days to 365 days. No convincing rationale has been put forward for that change, beyond stating that 365 days is reasonable. The Government have failed to explain the basis of that change and I should be grateful if the Minister would do so when she replies. In my view, it would be far more reasonable if the claimant had to satisfy the "all work" test at 365 days rather than 196 days; otherwise, disabled people will have passed the test confirming that they are incapable of all work and yet they will not be entitled to benefit. I beg to move.
§ 5.45 p.m.
§ Baroness Hollis of Heigham
We support the amendment moved by the noble Lord, Lord Swinfen. He moved it fully and so I shall be brief.
§ We are trying to establish that at the point at which one fails the "all work" test—in other words, the point at which it is recognised that one is incapable of any work—one should be regarded as long-term disabled, and, therefore, should simultaneously move to long-term disability benefit.
§ In Committee, on Tuesday, we tried to bring the benefit forward to the point at which the test is taken; that is, at 28 weeks. We tried to persuade the Minister and we shall obviously return to that on Report. As the noble Lord, Lord Swinfen, said, this is a fall-back amendment; namely, that if one moves on to the higher rate of benefit not after six months but after 12 months, so too should the "all work" test be brigaded with it.
§ In the past, the two have run together. The Minister has simply asserted that he is to sunder them, to sever them, but has given no reason why that should be the case. It is incumbent on the Minister to explain why, at the point when one fails to pass the "all work" test and is therefore regarded as incapable of all work, one should not receive the higher rate of benefit. We may argue about whether both should occur at six months or at 12 months; but that they should be interlocked seems to us self-evident and the Minister, apart from saying, "It is as I say it is", has given us no such evidence. We invite her now to do so.
§ Baroness Cumberlege
This amendment seeks to link the application of the "all work" test to the highest rate of incapacity benefit, with the effect that the "all work" test will not be applied until the 53rd week.
The Bill proposes that where a person has had a regular occupation, the "all work" test shall be applied 322 at the 29th week of incapacity. Up till the 29th week, the "own occupation" test will be applicable. That is intended to reflect the current system. The present law provides that the test of incapacity for work is capacity to do work which a person can be reasonably expected to do. Decisions taken by the social security commissioners have held that in the short-term, where capacity for work is only temporarily impaired, this means assessing a person's capacity for his usual job. In such circumstances it would not be fair to expect the claimant to change his usual occupation. In time, however, it is reasonable to measure his incapacity against a wider field of work.
In providing for two tests of incapacity in the Bill, we have used the case law as a basis. For the first six months of incapacity, therefore, the test will be the claimant's capacity to do his own job. Later, however, he will be tested against a wider definition, as the commissioners' decisions show. We considered that six months was a reasonable period to apply the "own occupation" test. In considering an unemployed person's availability for work, the Department of Employment allows only 13 weeks for the person to look for a job similar to his previous one; thereafter, he must consider all work.
There is a related issue of the linking of benefit rates to the application of particular tests. We have deliberately sought to keep those two areas separate. It is not the case that passing a certain test brings a higher (or lower) rate of benefit. Depending on its construction, a link would discriminate for—or against—those claimants who have not had a recent regular occupation and so who are not eligible for the "own occupation" test, but will take the all work test at the outset. That is not our intention. Benefit rates are designed to be linked to the length of a person's period of incapacity, and the needs arising therefrom. I urge Members of the Committee to reject the amendment.
§ Lord Swinfen
I thank my noble friend for her response. I shall consider carefully what she said. With my poor brain, and especially with a hearing defect, it is sometimes difficult to take things in when briefs are read rapidly. Nevertheless, I shall read inHansard what my noble friend said and may return to the matter at the next stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Viscount Astor moved Amendment No. 34:
Page 11, leave out lines 26 to 29 and insert:
("( ) Any provision of this Act apart from subsection (4) above under or by virtue of which a day is or is not to be treated for any purpose as a day of incapacity for work shall be disregarded for the purposes of this section.").
§ The noble Viscount said: This is a technical amendment that serves to clarify the current drafting of Section 171B(4) (of the Social Security Contributions and Benefits Act 1992).
§ Where either the DWA or the training long-linking rule applies to a person, it is not intended that that should affect the test of incapacity that is applied. However, Section 171B(4) could be open to different interpretation as it stands. The effect of that would be that where a person who has been working and receiving DWA finishes a job and makes a further claim for 323 incapacity benefit, he will be subject to the "all work" test even though he has clearly been working for more than an eight-week period prior to the claim. The amendment puts the issue beyond doubt, ensuring that the "own occupation" test, not the "all work" test, is applied where appropriate. That is beneficial for claimants. I beg to move.
§ On Question, amendment agreed to.
§ Viscount Astor moved Amendment No. 35:
§ Page 11, line 38, leave out from ("if') to end of line 39 and insert ("—
- (a) the reference there to 4 consecutive days were to such lesser number of days, whether consecutive or not, within such period of consecutive days, as may be prescribed; and
- (b) for the reference to 8 weeks there were substituted a reference to such larger number of weeks as may be prescribed.").
§ The noble Viscount said: I spoke to the above amendment when moving Amendment No. 12. I beg to move.
§ Baroness Hollis of Heigham
When Amendment No. 12 was debated, I asked the noble Viscount a question. I wonder whether he has had the opportunity to ascertain the answer. It concerns the precise implications of paragraph (b) of the amendment which reads,for the reference to 8 weeks there were substituted a reference to such larger number of weeks as may be prescribed".At the time, the noble Viscount said that that paragraph was merely repeating an existing provision. I understand that, but can he say whether that will allow the Minister concerned—presumably, by regulation—to extend the linking rule from eight weeks to a longer period? If that is the case, we can only support such flexibility. Does the Minister intend to make use of it?
I am still considering what the noble Baroness said on Tuesday. However, I shall write to her on the matter before the Report stage.
§ On Question, amendment agreed to.
§ Lord Swinfen moved Amendment No. 36:
Page 11, line 42, at end insert:
("(1A) The all work test is whether he is incapable by reason of some specific disease or bodily or mental disablement of doing all work which he could otherwise reasonably be expected to do.").
§ The noble Lord said: In moving the above amendment, I shall, with the leave of the Committee, speak also to Amendment No. 37. The purpose of the amendments is to get the nature of the "all work" test described in primary legislation. The first amendment is modelled on the definition of the "own occupation" test in Section 171B(2). The second amendment is consequential.
§ The Bill contains an explicit definition of the "own occupation" test on page 10 at lines 40 to 44. However, by contrast, the definition of the "all work" test is left entirely to regulations which will prescribe a list of activities. Whether a person passes or fails the "all work" test will depend on the extent of his incapacity to perform the prescribed activities.
§ I feel that the latter is unsatisfactory. First, although the test is called an "all work" test, there is no 324 requirement for the prescribed activities to have any direct bearing on a person's ability to work. Secondly, ability to undertake work is not synonymous with ability to perform a standard set of activities. The activities threshold above which a person is likely to be incapable of work is bound to vary considerably according to the nature of the work for which the person is suited by age, education, training and experience. Judging incapacity for work solely on the basis of ability to perform prescribed activities would be manifestly unfair in the context of an income maintenance benefit. I beg to move.
§ Lord Carter
I was pleased to add my name to Amendment No. 36. For reasons that I shall try to explain, it is extremely important that we should have a definition of the "all work" test. As the noble Lord, Lord Swinfen, said, the "own occupation" test is clearly defined in Section 171B(2). However, in comparison, the definition of the "all work" test in Section 171C(2) (a) refers to,defining the all work test by reference to the extent of a person's incapacity".We have all heard about the disadvantages of the "all work" test—indeed, I am sure that they will be discussed again —so the definition of the test is most important. We are concerned that there will be a test of doubtful validity which will be used as a reference point in deciding on the "all work" test and prescribed in regulations. Therefore, there will be a contrast between the objective definition of the "own occupation" test in Section 171B(2) and a secondary definition. However accurate the scoring on the assessment test, there will be a degree of subjectivity in the decision as to whether or not a person has passed the "all work" test. That is inevitable. Therefore, it is most important that the definition should be clearly made and that the "all work" test is not defined only by reference to the extent of a person's incapacity.
We now have the opportunity to discuss the definition of "all work". The Minister will remember that, when we had that extremely helpful presentation by officials regarding the testing, I gave the example that all work covers everything from filling envelopes to flying Concorde. I chose those examples deliberately because they seemed to me to show the extremes of what could be defined as an occupation of work. If one links that extreme to the other definition, "any paid work in the open market"—which is crucial and which the department is to use'—the market becomes more and more open as jobs become less and less skilful. To use my example, there is a very open market for filling envelopes which can be compared with a very closed market for those who can fly Concorde. Every Concorde pilot can fill envelopes; but, I do not know how many envelope fillers can fly Concorde.
I used those examples quite deliberately. It seems to me that the "all work" test must drive people downwards in the market place for work. If that is the case, it is most important that we should have a clear definition of the "all work" test on the face of the Bill and that we do not attempt to define it by reference only to a person's incapacity to pass such tests which, in any event, we believe to be of doubtful validity.
§ Baroness Cumberlege
The amendments seek to define the factors to be considered in the "all work" test and to prescribe them on the face of the Bill. We believe that they are misconceived. The "all work" assessment will include all the medical factors raised by the amendments, such as pain, stress and general health, though not the non-medical ones.
The amendments seek to redefine and weaken the "all work" test. I have already set out the current development work on the test and how the test will be applied in individual cases. I shall not repeat the details again. Suffice it to say that the new, function-based test of incapacity which we are developing is designed to do what Amendment No. 36 proposes. First, it will assess the effects of specific diseases and bodily and mental disabilities on a person's capacity for any work. Secondly, the activities specified in regulations will be related to those necessary to perform the 100 most common jobs in the economy. These jobs are drawn from the Labour Force Survey, classified according to standard occupational classification, and between them cover nearly three-quarters of all the jobs in the UK economy. It can therefore hardly be said that the test is unreasonable. The test is, however, new: it introduces a new way of assessing incapacity.
The amendments effectively seek to reintroduce the old system. The "all work" test is to be defined by reference to work a claimant could reasonably be expected to do, and a claimant's capacity to perform the work-related functional activities will only be a part of the picture. This undermines the whole aim of the new medical test. The current system is subjective and, despite its objective of "reasonable work", often produces unreasonable outcomes. Currently, the adjudication officer may be asked to give a list of jobs a claimant could do: this is an unreasonable demand, as an adjudication officer is not an employment rehabilitation adviser. This blurring of employability and incapacity also leads to unfairness: two people with precisely the same degree of incapacity may be treated differently because one has retrained and the other has not, although both are equally capable of retraining. That is both unreasonable and nonsensical: someone who cannot work because he does not have the appropriate skills requires training, not a benefit for sick or disabled people. As I have said before, we are trying to get away from the subjective "supposedly-reasonable job' approach. In adapting the OPCS disability scales to measure incapacity for work rather than disability, we are aiming at a more objective test of incapacity.
We are developing a test which will be a significant improvement on the current arrangements for the assessment of incapacity. While the consultation and development period is still going on, it is not possible to put down details of the test in the Bill. As I have said, the "all work" test does not take into account factors like training, employment history or educational qualifications. Incapacity benefit is specifically designed for those medically incapable of work, and uses a test of medical incapacity. If a person cannot find work because he has little work experience or unsuitable educational qualifications, a benefit designed for sick and disabled people is not appropriate. Other social 326 security benefits or assistance with, for example, retraining from the Employment Services Agency may be appropriate. For these reasons I invite the Committee to reject these amendments.
§ 6 p.m.
§ Lord Swinfen
I thank my noble friend for her response. I would say, however, that a test which is called an "all work" test cannot simply be about physical and mental functions. A disabled person's inability to work depends on other factors such as education and experience. Essentially what we need is a fair means by which to identify people who are incapable of work. The amendment addresses the Government's concern that over the years the commissioners and the courts broadened and blurred the definition of incapacity for work beyond the perceived intention. It does this by balancing the need for a tighter definition with what may be considered a realistic approach. I am not really satisfied with my noble friend's response but we have a "thin" Committee and therefore I am not tempted to press the amendment to a Division tonight. However, I may well come back to it at the next stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 37 and 38 not moved.]
§ Viscount Astor moved Amendments Nos. 39 and 40:
§ Page 12, line 7, leave out from ("(2)") to end of line 8 and insert ("or (3) above or section 171DA below.").
Page 12, line 8, at end insert:
("The prescribed conditions may include the condition that it has not previously been determined, within such period as may be prescribed, that the person in question is or is to be treated as capable of work.").
§ The noble Viscount said: I spoke to these amendments with Amendments Nos. 18 and 29.1 beg to move.
§ On Question, amendments agreed to.
§ Lord Campbell of Croy moved Amendment No. 41:
Page 12, line 8, at end insert:
("(4) Regulations may provide that where a person has satisfied the all work test, he shall not be subject to further testing unless the adjudication officer has reasonable cause to review the person's incapacity.").
§ The noble Lord said: This amendment aims to ensure that someone who passes the "all work" test is only re-tested when there is a proper reason for doing so. The Bill makes no mention of the frequency with which incapacity benefit claimants could be tested. I recognise that this may be covered in regulations to be made later, or in guidance. My object at this stage is to find out the Government's intentions in this matter.
§ Invalidity benefit claimants are at present referred to the Benefits Agency Medical Services for consideration, or medical examination, at intervals which depend on the type of illness or disability. As the new test is expected to be more stringent than the present test, I would be concerned if someone who passed the "all work" test were to be regularly re-tested without good reason. The rules at present allow for adjudication officers to review a claim if they have good cause to do so. That provision, I believe, should surely enable 327 adequate scrutiny to be maintained. Having passed this stringent test once, the individual should be assured that he is not going to be subjected to it again and again without good reason. I beg to move.
§ Baroness Cumberlege
I do not wish to pre-empt any debate but perhaps it might be useful if I explained why this amendment is unnecessary and that is because it duplicates existing provisions. Section 25 of the Social Security Administration Act 1992 outlines the conditions under which an adjudication officer can undertake a review. The adjudication officer can only review a case if he is satisfied that there is a change of circumstances, or that he was ignorant of or mistaken as to a material fact, or that he was wrong in law. The proposed amendment adds nothing to the powers of the adjudication officer. The existing provisions require that the adjudication officer is satisfied that there is a reason to review. The proposed amendment merely specifies that there is reasonable cause. It is therefore weaker than Section 25, and is therefore not necessary. With that explanation, I hope very much that my noble friend will withdraw the amendment.
Lord Campbell of Croy
I am grateful to my noble friend for the assurance which I was seeking because it sounds as though she has met the point I raised and has indeed referred to the present duties of adjudication officers, about which I spoke. I am glad to know that they will continue and that that will be the safeguard in these cases. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 5, as amended, agreed to.
§ Clause 6 [Test of incapacity for work: supplementary provisions]:
§ Baroness Turner of Camden moved Amendment No. 42:
§ Page 12, line 21, leave out from ("or") to ("work") in line 22 and insert ("earning no more than the prescribed amount for doing").
§ The noble Baroness said: In moving Amendment No. 42, I wish to speak also to Amendment No. 43. These two amendments are concerned with therapeutic earnings. As we know, at present someone on invalidity pension is able to earn up to £43 a week without losing entitlement to invalidity pension, if his or her doctor affirms that the work is of therapeutic value. Therapeutic earnings are currently governed only by earnings (less allowable expenses). It is understood that it is proposed in future to limit therapeutic earnings by both earnings and hours, as I gather it is proposed that the hours should not be more than 16 hours a week.
§ The therapeutic earnings system is highly beneficial to disabled people, actively assisting many back into full-time work. The proposed future imposition of a 16-hour limit, as well as an earnings limit, could be a retrograde step even if some people would become entitled to the disability working allowance. It must be noted that an ability to work more than 16 hours a week on an occasional basis is of little interest to most 328 employers and the disability working allowance is not therefore an option for many who now benefit from the therapeutic earnings limit.
I understand that in the other place the Minister, Mr. Burt, appeared at one time to be reasonably sympathetic because he said,
We recognise that some groups of people on incapacity benefit undertake more than 16 hours of rehabilitative work but receive very little remuneration—for example, people who are in-patients in hospitals and similar institutions and undertake work under medical supervision as part of their treatment"—[Official Report, Commons, Standing Cttee E, 22/2/94; col. 354.]
§ I am informed by the Association of Disabled Professionals that it has a number of members who are too disabled to work in ordinary employment but who can work irregularly, sometimes exceeding 16 hours a week. It has given examples from among its members. One example is that of a 35 year-old woman who contracted multiple sclerosis and whose last fully paid job was that of a secretary. Her condition made it increasingly difficult for her to work regularly, and she lost her job and was awarded an invalidity pension. Not wanting to be idle, she sought and was given a job by a national organisation for disabled people. She worked irregular hours, sometimes as much as 30 and some other weeks much less than that. Her doctor considered the work of therapeutic value and her earnings per week were governed by the therapeutic earnings limit.
§ There are many examples of people who benefit from doing this kind of work. It seems to me that there is no reason to put limits in relation to hours or in relation to earnings if people are certified by their doctors as incapable of normal work but capable of doing therapeutic work. The Association of Disabled Professionals, to which I am indebted for some briefing, has indicated to me that many of its members remark that invalidity benefit enables them to live but the work that they do, even though irregularly, helps to keep them sane. I commend the amendments to the Committee. I beg to move.
§ Lord Swinfen
I can see no reason why my noble friend could not accept these amendments. I understand that very few people undertake therapeutic work. Indeed, of claimants surveyed by the Department of Social Security, as indicated in its Research Report No. 20, only 1 per cent. of claimants had done such work; 80 per cent. of claimants had not even heard of it.
Removing the earnings limit may assist a very small number of people towards rehabilitation. It would have virtually no expenditure implications. However, helping people back to work will have beneficial financial implications because instead of the Government spending money they will probably end up gaining funds through tax.
Once again I suggest that where people are trying to get themselves back into proper employment, the Government should consider seriously not withdrawing all benefit but withdrawing it on a sliding scale. As I said on Tuesday, I suggest that for every pound disabled people earn, they should lose only 50 per cent. of their benefit. That would mean that they had encouragement to work. With modern computers that should not be difficult or expensive to administer. In the end it would 329 help to improve the economy of this country, about which the Government talk so much. I hope that they will accept the amendments.
Baroness Darcy (de Knayth)
I should like to support the amendments, which were explained so clearly by the noble Baroness, Lady Turner of Camden. I support what the noble Lord, Lord Swinfen, said about a sliding scale. Since the 1970s, I have been trying to remove the total cut-off point of the therapeutic earnings rule. The fact that once one reaches a certain limit one forfeits all one's invalidity benefit has always been a very severe disincentive for a disabled person to attempt to return to work. Imposing a 16-hour limit to boot is a highly retrograde step. The noble Baroness, Lady Turner, made it very clear why that is the case; and I shall not produce any further evidence. I shall say only that I hope that we receive a more encouraging response to these two amendments.
§ 6.15 p.m.
§ Earl Russell
The concept of therapeutic work is perhaps rather more wide-ranging than we sometimes realise.
I recall in the local elections in my borough in 1986 somebody who was in a wheelchair, had no use of her legs, very limited use of her arms, and who would have qualified for incapacity for work under any reasonable test. She acted as an election agent, and did it extremely well. She had the full use of her fingers and could operate a computer, and understood everything about how that mysterious object worked. She was able to use her husband, when necessary, as her arms and legs. That was a thoroughly well-managed campaign.
Being our party, she was not a paid election agent. But there are such things as paid election agents. If she had been earning, that money would have been thoroughly well earned and thoroughly deserved. As the noble Lord, Lord Swinfen, said, it would have been in the interests of the Exchequer, which would have benefited. However, in any normal sense of the words, that woman would still have been incapable of work. That is just the kind of case which this amendment is intended to cover.
The noble Earl, Lord Russell, gives an example of therapeutic work in relation to elections. Some would argue that an election itself is a therapeutic measure, particularly when the Government are returned.
A number of important points have been made in relation to therapeutic work, and I shall return to those. However, I should point out that the amendments are not concerned only with that issue. They are slightly wider. Therefore it would be right for me to address the wider issues.
The first of the amendments would restrict the power so that the regulations could only prescribe an earnings limit and not a limit on the number of hours worked. The second amendment has the reverse effect in specifying that only a limit on hours could be imposed and no limit on a person's earnings.
We intend that therapeutic work will be allowed for up to 16 hours a week with an earnings limit of £43 a 330 week. The accepted definition of full-time work used across the social security system is 16 hours a week or more. This is the right benefit for people who undertake remunerative work and are at a disadvantage in the labour market because of their disability.
Incapacity benefit is intended to provide a measure of income replacement to those people who are unable to work because of an incapacity. I am sure that the Committee will agree that it would be wrong to allow a person who is receiving incapacity benefit to use it as a supplement to well paid part-time work. That would be the effect of the second of the amendments, which prevents any reference to an earnings limit. We need to maintain the earnings limit to ensure that the benefit is focused on the right people.
We intend to introduce a new provision to allow incapacity benefit claimants to be engaged in up to 16 hours voluntary work a week without any impact on their benefit entitlement. That provision will be introduced in regulations under Section 171D. Our announcement of its introduction has been widely welcomed. The work done by charities and voluntary organisations is enormously important in our society and often has a significant role in helping people back into work. Indeed, we have now brought forward regulations which will introduce the provision from 16th May this year.
That change is consistent with the Government's wider policies to encourage voluntary work. It will also help people who want to go back to work by allowing them to make a gradual transition. We hope that incapacity benefit claimants will be, able to take advantage of the new provision to build up their confidence and experience in the workplace.
However, as I have already explained, this is of benefit to those people who are incapable of work. There must be a point at which a person undertaking many hours of voluntary work can no longer be accepted as being incapable of work. The definition of full-time work within the social security system is 16 hours a week. It would therefore be appropriate to apply that limit to voluntary work.
I hope that the Committee will agree that there is a need to maintain some control over the amount of work people do while receiving income replacement benefits paid by the state. The amendments would remove that control.
Perhaps I may address the specific group of claimants who would be adversely affected by the 16-hour limit on therapeutic work; for example, people working in adult training centres who work for more than 16 hours a week and receive a nominal amount of remuneration, say £10. I should point out to my noble friend Lord Swinfen, that the disability working allowance—the right benefit for people working at least 16 hours a week —seeks to encourage those people to work.
We are aware that some groups of people receiving incapacity benefit who undertake rehabilitative work of more than 16 hours receive little or no remuneration for that work. I refer in particular to people who are in-patients in hospitals and other similar institutions who undertake work under medical supervision as part 331 of their treatment. For those people, claiming disability working allowance would almost certainly leave them worse off financially.
We are very concerned that such people are not adversely affected by the 16 hours limit. Indeed, we are looking carefully at ways of protecting their position. However, there is no need to amend the Bill to achieve that. If special provisions are required, they can be included in regulations made under Section 171D (1).
I shall consider carefully what has been said during the debate about therapeutic work. If we consider that changes are necessary and are required, I shall announce them during the progress of the Bill. I shall consider the issue carefully. However, I must point out to the Committee that the two amendments are not the way to satisfy the very reasonable concerns of my noble friend.
§ Baroness Turner of Camden
I thank the Minister for his response to the two amendments. I am a little disappointed that he does not accept entirely both amendments or our arguments on them. However, I am glad that there will be some announcements made as to the Government's response during the passage of the Bill.
Of course, there will be regulations again. Yet again we have legislation via regulation. As the Minister will know, we are not altogether happy about that. We would sooner have people protected by provision in primary legislation. I had not considered the point made by the noble Lord, Lord Swinfen, and referred to by the noble Baroness, Lady Darcy (de Knayth), concerning the possibility of a sliding scale. That is a matter that can reasonably be considered. At present there is an arbitrary cut-off point. It would be much better for the people concerned if there were a sliding scale.
In view of the comments made by the Minister it is certainly not my intention to press the amendments to a vote tonight. I am glad that he will consider carefully what we have said this evening. If we return with some provision at Report stage, perhaps he will be sympathetically inclined. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 43 not moved.]
§ Lord Swinfen moved Amendment No. 44:
Page 12, line 23, at end insert ("or by reason of carrying out duties as a carer.
(3) For this purpose, "carer" means a person (not being a person employed by any body in the exercise of its functions under any enactment) who is providing a substantial amount of care on a regular basis to a disabled person or to a person in need of community care services.").
§ The noble Lord said: The purpose of the amendment is to ensure that carers who are incapable of work are not deemed to be ineligible for incapacity benefit because they happen to undertake caring duties for another sick or disabled person. The provision would make it abundantly clear to the Benefits Agency officials that carers could claim incapacity benefit in their own right as opposed to the confusion that currently exists. Many people currently in receipt of invalidity benefit are carers themselves, looking after someone who is in need 332 of greater care. Carers on invalidity benefit are often in poor health as a direct result of the physical and mental strains of their caring responsibilities.
§ In May 1992 the Carers National Association produced a report based on a survey of 3,000 carers. That research revealed that two out of three carers suffered from problems with their own health. The Carers National Association has evidence that under the present IVB system a person's ability to carry out caring duties such as lifting, washing, cooking, and so on, is sometimes taken into account in judging capacity for work.
§ One has to remember that many carers are spouses, often elderly, and because they have little help it is quite proper and natural for them to care for their spouse—male or female. If there were no help they would do that in any case. The association has been contacted by a number of carers who have told us that they have been informed by their local DSS offices that it is not possible to claim invalidity benefit if they are a carer. What nonsense! One carer was told, "You can't be disabled if you are a carer", even though he was a chronic arthritis sufferer. Another carer was told that invalidity care allowance would have to be claimed rather than invalidity benefit and that he should get his doctor to sign him off. We strongly believe that a person's caring responsibility should be ignored completely when judging capacity for work. I should like to see that made clear in relation to the new benefit.
§ Carers on invalidity benefit face little choice but to carry out certain caring tasks even if that means a degree of pain and health cost to themselves. That is the reality of community care and the personal sacrifices made by carers. But their willingness to perform such tasks should not be taken as an indication of a general capacity or ability to work. We would like to see the Government give assurances to that effect in introducing the new benefit. The Bill already sets a precedent by stating that work as a councillor should be disregarded for the purpose of judging capacity for work; and we believe that work as a "carer" or "caring duties" should be similarly disregarded.
§ If the Committee accepts this rather small amendment it will recognise the contribution being made to the United Kingdom by the 6.8 million carers who support sick, elderly and disabled people and enable them to remain in the community, as well as safeguarding their right to claim incapacity benefit.
§ It is the Government's wish that care should take place in the community. By caring for their relatives at home, those carers save the Government millions. I do not believe that accepting this amendment will cost the Government anything like as much as is saved. I should like my noble friends on the Front Bench to consider this: when the time comes and they are elderly, not very strong and with problems with their own health, will they not care for their spouse if their spouse needs greater care than they do? I beg to move.
§ Earl Russell
The noble Lord, Lord Swinfen, has understated his case. He said that carers were saving the Exchequer millions. According to the society security Select Committee in another place, in 1990 the correct 333 figure was £24 billion a year. That is the equivalent of 12 pence on the standard rate of income tax. That amount might induce any government to think again.
I believe that the Government would be unwise to encourage those acting in their name to say, as in the cases quoted by the noble Lord, Lord Swinfen, "You are incapable of work. You cannot be a carer". If the Government say that those people are incapable of caring for their own families, they will find that alternative care has to be provided under the care in the community programme. That is a programme for which money is not particularly plentiful. Such provision would be at considerable extra cost to the state. In doing that, the Government would take a considerable risk of pulling apart a number of marriages among the elderly by putting one person into residential care when the other was perfectly well able to look after him or her. I hope that the amendment will be taken seriously.
§ Lord Carter
It would be helpful to the Committee if the Minister could tell us whether the problem that has been described by the noble Lord, Lord Swinfen, and the noble Earl, Lord Russell, is due to lack of clarity in the adjudication or a misunderstanding or whether it is expressing policy. When the matter was discussed in the other place in February, the Minister, Alistair Burt, said:Carers will be considered in the same way as everyone else to determine what their disabilities are, how they affect their capacity for work and whether they substantially reduce their opportunities of finding work".—[Official Report, Commons, Standing Committee E 22/2/94; col. 360.]That is clear enough. However, we need to know whether the fact of caring will be taken into account in deciding on capacity for work. It is as simple as that. If the Government intend that it should not be taken into account, it would be helpful if the Minister could tell the Committee that guidance notes will be issued to adjudication officers to make that clear. That is the central question—whether the fact of caring will be taken into account in deciding on capacity for work.
§ Lord Rix
I support the amendment. I fear that my statistics are anecdotal and not totally accurate, but I rely on the information which, as chairman of MENCAP, I receive from hundreds of parents. Many of them are incapacitated and they look after their learning disabled offspring. The withers of Members of the Committee would be wrung if I were able to bring the stories and the lists to the Committee. I believe that the noble Lord, Lord Swinfen, has moved an amendment of great importance from the point of view of MENCAP and I hope that the answer which the noble Lord, Lord Carter, asked for will be given to us.
§ 6.30 p.m.
I do not think that I could possibly take issue over anything that is said about the importance of carers in our society. However, what we have to decide is which benefit is the right one for everyone within our society and whether it is focused on the right thing, whether it should be one benefit or another. I shall try to explain and put it in context.
Incapacity benefit, like sickness and invalidity benefit, is meant for those who are unable to work by reason of their mental or physical incapacity. Other 334 benefits are available for those who cannot work for other reasons; for example, unemployment benefit and income support for those who are unemployed; retirement pensions for the elderly; the invalid care allowance for carers; the disability living allowance for people aged under 65 who, because of illness or disability, need help with personal care and/or with mobility.
The amendment seeks to make provision for carers by amending Section 171D and states that a person shall not be treated as capable of work by reason only of caring for another person. It also seeks to define a carer, for the purposes of the Bill, as someone,who is providing a substantial amount of care",for someone else, but is not employed by any organisation to do so.
I believe that my noble friend's amendment is based on a misunderstanding of the functioning of the new test. We will not be telling claimants, for example, that, if they can walk upstairs to look after a relative, they can clearly work. The new test will instead depend on an assessment of functional capacity. The test will assess a claimant's ability to perform a series of functional activities which are related to work, not their capacity to care for someone else.
However, if a claimant is found to be capable for work under the new test, they will be expected to seek work. It would be inappropriate for us to pay incapacity benefit to someone who is able to work simply because they were caring for another person. Incapacity benefit is designed to support people who cannot work because they are sick, not those who are involved in caring for other people. Carers will be considered in the same way as everyone else who wishes to claim incapacity benefit.
A wide range of other benefits exists for those who need care and their carers. First, the care component of the disability living allowance has three rates of support to meet the extra costs associated with personal care needs arising from an illness or disability. Secondly, invalid care allowance is the major benefit for carers. It provides an independent income for some caters which is paid to the person who is doing the caring. Expenditure on invalid care allowance increased from —4 million in 1979 to £345 million in 1992–93, while claimant numbers rose from 5,000 to 199,000.
Thirdly, on the carer premium in the income-related benefits, the latest estimates indicate that about 70,000 recipients of income-related benefits are being helped by the carer premium, which, of course, was introduced in October 1990.
Finally, there are also generous earnings allowances which encourage carers to retain or establish links with the employment field. Carers can earn up to £50 a week from April 1994 after deduction of allowable expenses while the carer is at work. These include national insurance contributions, fares to work, and cost of paying for the care of a child or a person living with the carer, among others.
What I am trying to point out to the Committee is that the needs of carers are addressed elsewhere in the benefit structure. They are important needs and I hope I 335 have explained to the Committee that we address them. However, my noble friend's amendment would address them through the wrong benefit.
§ Lord Carter
May I confirm that those conducting the test need not know that the person is a carer? They have no need to ask for that information. If people were asked whether they were caring for anyone, they would be entitled to tell the assessor to mind his own business.
We have tried to explain that the medical test is a test on the capacity to do things, it is not a test on age, education or anything else like that. The noble Lord, Lord Carter, has seen the evidence on how we do the test. He makes an important point, the test is of a person's capacity to work, not the capacity to look after a relative.
§ Lord Carter
I am sure that that is right, but I repeat the question. Would the assessor be entitled to ask whether that person was capable of caring, if he was in a caring capacity or in a caring situation? Or has that nothing at all to do with the test?
I think that I should have to look at the proposed regulations. However, I can assure the noble Lord that it would not be our intention in any way that an assessor could use the fact that someone was caring in order to change the capacity or incapacity for work.
§ Earl Russell
In this House, as in games of chess, there are a limited number of gambits. I sometimes think that, as in chess, we ought to go in for naming them. What the Minister has offered us here is what I think of as the "filing clerk" defence. In arguing about appropriate categories of benefits, the noble Viscount went into great detail about the carer's premium. He seemed to assume that either you were a carer or you suffered from incapacity. He gave that impression so strongly that I became more convinced than I was before of the necessity for the amendment. I think that the Minister ought to look again at his reply to see whether it has made the case against the amendment or, as I think, the case for it.
If the noble Earl will allow me to say so, I thought I tried to explain quite clearly that there may be carers who are on incapacity benefit. I was trying to separate the two, and I hope that I explained to the noble Lord, Lord Carter, that that was a different issue from capacity for work.
§ Earl Russell
That is a fair enough answer but the noble Lord, Lord Swinfen, quoted cases where people had been told that because they were carers they were not incapable. Will the Minister consider issuing guidance to the effect that that should not be done in future?
I shall certainly consider what the noble Earl said this evening and write to him before the next stage of the Bill.
§ Lord Swinfen
That is a very disappointing reply, except for one ray of hope. It sounded to me, though I 336 may not be right, that my noble friend was saying: become a carer and enjoy perfect health. I have probably misquoted him but that is the impression I received.
To change the subject, the noble Earl, Lord Russell, said that the Standing Committee in the other place had said that carers saved the nation £24 billion—I only talked of millions—or 12 pence on income tax. I wonder whether my noble friend can tell me what would be the cost of this amendment. I do not think that it would be anything like that. Or can he tell me what would be the cost of the additional home helps who would be required if these people, through lack of any benefit, were forced to go out and get work of any kind? I do not suppose that he has the figures to hand. But a little bit of simple arithmetic would show quite a healthy profit for the Treasury—and the Government seem to work an awful lot on profit and finance, which I do not always agree with.
It is getting late. I should like to digest all that my noble friend has said. I have a feeling that I shall return at the next stage with either the same amendment or an even stronger one. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Baroness Turner of Camden moved Amendment No. 45:
Page 12, line 23, at end insert:
("(3) Regulations may provide that a person shall be treated as incapable of work if he suffers from one or more prescribed conditions including those which have not been subject to further medical controls for invalidity benefit purposes.").
The noble Baroness said: I beg to move Amendment No. 45. The intention of the amendment is to try to ensure that the list of exempt conditions will include all those that are listed by the Benefits Agency as requiring no further medical control. The Secretary of State in the other place said at Second Reading that the Government had tried to identify the groups of people whom they can tell a priori are clearly unable to work. He said that none of those would have to undergo any review process in the future. He said at some length, at col. 43 on 24th January, that the proposed list included conditions such as tetraplegia; paraplegia; persistent vegetative state; registered blindness; severe learning difficulties; and severe and progressive neurological or muscle-wasting diseases and disorders. He gave a whole list of disorders that clearly render the unfortunate sufferer incapable of work. Somewhat surprisingly, I noted, Alzheimer's disease was not included. The Secretary of State said, however, that the Government were,
consulting leading disability organisations with a view to seeing whether the list can be extended".—(Official Report, Commons, 24/1/94; col. 43.]
§ The purpose of this amendment is to probe to see whether the list of conditions will cover all conditions that are currently described in Benefits Agency literature as not requiring further medical controls. That includes conditions such as congestive heart failure; pneumoconiosis; rheumatoid arthritis, and so on. Clearly people with those conditions are unlikely to be able to do future work. It seems wrong to put further stress upon them by subjecting them to a medical review. The Secretary of State seemed to accept that 337 point when speaking at Second Reading in the other place. I therefore await the Minister's response with some interest.
§ Earl Russell
I am happy to support this amendment. There is a case for writing into legislation the list that the Minister outlined in another place. After all, we accept the Government's intentions in the matter. This Government may not be in office forever. It would be worth having something permanent on the statute book. Also, it seems to me to be important that the test as we have it is more suited to measuring some forms of incapacity for work than it is others. Almost all benefits tests are much better in particular at dealing with physical impediments to work than they are at dealing with mental impediments. The whole approach in the Bill of functional impairment necessarily exacerbates that. There are some conditions—I am thinking particularly of schizophrenia—which it would be very, very difficult indeed to test by the procedures that the Government are laying down, but which nevertheless are ones that are very difficult to combine with regular work. If we do not take that on hoard, some unfortunate employer may find that he has appointed the successor of Christopher Clunis.
§ Lord Swinfen
I should also like very briefly to support this amendment. It is enabling; it would be a useful measure; it should not be difficult to operate; and it would be of considerable assistance to those who are severely disabled, incapable of work and unlikely to show any improvement.
§ 6.45 p.m.
§ Baroness Cumberlege
This amendment seeks to extend the number of people who will be exempt from the new "all work" test. It may be helpful to the Committee if I very' briefly explain our proposals on the application of the test.
We intend to apply the test to all existing claimants, except those who are clearly incapable of work. These are people who are terminally ill, those who receive the highest rate care component of disability living allowance, and people suffering from one of a number of severe, incapacitating disabilities. The same categories will apply to new claimants. In addition, existing claimants who were receiving invalidity benefit on 1st December last year and are still in receipt and aged 58 or over when the new benefit is introduced will also be exempt.
The new test assesses the effects of a person's medical condition on their capacity for work. Such effects can vary widely, we know, over time and between individuals. In only a limited number of serious conditions can incapacity for work be assumed. We have—as the noble Baroness, Lady Turner of Camden, said—produced a provisional list of these conditions. That was announced by my right honourable friend the Secretary of State in another place at Second Reading on 24th January. We want to be sure that the list is full and complete. As the noble Baroness said, to help us, we have consulted the disability organisations, including the Disability Benefits Consortium, which represents the leading disability organisations and includes the 338 British Council of Organisations of Disabled People, the Disability Alliance, the Disablement Income Group and the Royal Association for Disability and Rehabilitation. We have asked the consortium for its views by the end of April. The amendment seeks to extend the proposed list by adding to it all the medical conditions, which, under the current system, means that no further medical controls are carried out.
As the Committee is aware, under the current system, when a claim is received, the adjudication officer consults written guidance prepared by the Benefits Agency Medical Services on the likely time the average person would take to recover from the particular medical condition involved The adjudication officer then decides whether any further medical control action should take place. In certain cases, where recovery i s unlikely or the claimant's condition is unlikely to improve, the written guidance advises no reference or no further reference so long as the claimant is suffering from that particular condition.
Accepting the amendment would increase the number of exemptions from the new test. All those existing claimants —about half a million in number—whose cases are marked for no further control would be exempt, as would anyone who claimed the new benefit and was suffering from one of the relevant conditions.
I cannot accept the amendment. It seeks to introduce into the new benefit much of the current system of control, which we consider to be ineffective. The list of medical conditions that is used at the moment is out of date and would require serious revision if we were retaining the current system. It was designed as part of the current system and it would be inappropriate to import it into a new, very different, benefit. It does not take account of recent advances which have improved the management of certain medical conditions. For example, people suffering from ischaemic heart disease can now benefit from treatment techniques which increase markedly their chances of getting better.
The list of serious incapacitating disabilities that is being developed will ensure that both existing and new claimants who are clearly incapable of work will not be bothered by the application of the new test. It is right that other people whose incapacity cannot be assumed should undergo the new test. Many of them will be found incapable of work. The amendment seeks to import part of the current ineffective control system into the new benefit.
Perhaps I could just take up the point about Alzheimer's disease made by the noble Baroness, Lady Turner. It is in fact included as one of the exemptions under "dementia". With regard to schizophrenia, sufferers are likely to fall into the category of severe mental illness. They will not be asked to complete a questionnaire. The department's doctor will liaise with the claimant's GP to gather that necessary information.
§ Earl Russell
I thank the noble Baroness for what she said about schizophrenia but I wonder whether she could perhaps be just a little more forthcoming. She said that such people were very likely not to fall into the new test. Will she go just that little bit further and say that they will not do so? It is particularly difficult for a 339 schizophrenic to fill in a questionnaire setting out his own mental state. Such people usually think that they are absolutely and completely sane and if anyone is not sane it is all the rest of the people over there! I feel that it would be wise for the Government to do that. It would save them a great deal of trouble and increase goodwill, which is usually worth doing when it does not cost anything.
§ Baroness Cumberlege
The information would come from the GP and the consultant psychiatrist. If that were their diagnosis, those people would be exempt from having to fill in a questionnaire or undergo any test.
§ Baroness Turner of Camden
I am glad to hear from the noble Baroness that consultations are proceeding with the organisations representing the disabled and that agreement over a list is expected. I am also glad to know that Alzheimer's disease is included, because I raised that matter quite specifically.
However, I still remain a little suspicious. The Minister's reference to having to move away from the present system of control simply leads me to believe that this is part of the Government's move to cut the costs of benefit and part of the move to save on benefits which would otherwise have been paid under the existing system. She will know from all the contributions that have been made, not only from this side of the Chamber but from various parts of the Committee, that many of us are very concerned that people who would be eligible for benefits under the present system, will find themselves out on a limb under these proposals.
I shall not press the amendment at this late stage and with such a thin Chamber. I am still not terribly happy with the response that was made to what I believe were very reasonable propositions from this side of the Committee. Nevertheless, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Viscount Astor moved Amendment No. 46:
Page 12, line 23, at end insert:
("Incapacity for work: disqualification, &c.
171DA—(1) Regulations may provide for disqualifying a person for receiving any benefit, allowance or other advantage under any provision for the purposes of which this Part of this Act applies, or, in such cases as may be prescribed, provide that a person shall be treated as capable of work, if—
(2) Regulations shall provide that any such disqualification shall be, or as the case may be that the person shall be treated as capable of work, for such period not exceeding 6 weeks as may be determined in accordance with Part II of the Administration Act.
(3) Regulations may prescribe for the purposes of this section—
§ The noble Viscount said: I spoke to this amendment with Amendment No. 18. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 47 not moved.]
§ Viscount Astor moved Amendment No. 48:
§ Page 13, line 26, leave out from ("person") to end of line 27 and insert ("—
- (a) is, or is to be treated as, capable or incapable of work, or
- (b) falls to be disqualified for any period in accordance with regulations under section 171DA of that Act,
§ The noble Viscount said: Again, I spoke to this amendment with Amendment No. 18. I beg to move.
§ On Question, amendment agreed to.
§ Viscount Astor moved Amendment No. 49:
§ Page 13, line 30, leave out from ("conclusive") to ("for") in line 31.
The noble Viscount said: This amendment to Clause 6 removes an unnecessary provision. Our intention is that where there has been a determination that a person is, or is not, capable of work, then the determination will apply:
for any purpose for which the provisions of Part X11A of the Contributions and Benefits Act apply".
§ I understand that that is the right Part of the Act, but I shall check it. The determination will continue to apply to all the other parts of the social security system for as long as the initial determination stands.
§ Thus, a person who is found to be capable of work, having failed the "all work" test in connection with a claim for incapacity benefit, will be considered capable of work for other social security purposes, such as entitlement to the disability premium in income support or when applying for national insurance contribution credits.
§ The current wording of Section 61A(2) allows circumstances and periods to be prescribed in connection with this determination. In fact, there is no need to prescribe any circumstances or period for this determination. Therefore, the effect of this amendment is to delete the unnecessary words. I beg to move.
§ On Question, amendment agreed to.
§ Viscount Astor moved Amendments Nos. 50 and 51:
Page 13, line 31, at end insert:
("Regulations may in particular provide that a determination that a person is disqualified for any period in accordance with regulations under section 171DA of the Contributions and Benefits Act shall have effect for such purposes as may be prescribed as a determination that he is to be treated as capable of work for that period, and vice versa.").
§ Page 13, line 32, leave out from ("for") to ("to") in line 35 and insert ("questions of such descriptions as may be prescribed").
§ The noble Viscount said: I spoke to both these amendments with Amendment No. 18. I beg to move them en bloc.
§ On Question, amendments agreed to.341
§ Lord Archer of Sandwell moved Amendment No. 52:
§ Page 13, line 39, leave Out from ("tribunal") to ("and") in line 41 and insert ("to include one member with medical qualifications").
§ The noble and learned Lord said: I move this amendment in an interrogative spirit, or partly so, motivated by a thirst for knowledge. However, lest the Government Front Bench take too much comfort too quickly, it is done only partly in that spirit.
§ The amendment relates to the constitution of the tribunal which will hear appeals against the adjudications which the Committee has been discussing. I do not seek to reopen the debates about the issues which will fall to be decided. I appreciate that the questions will relate not to medical theory but pragmatically to what the claimant can and cannot do, and that a claim will be initiated on the basis of a self-assessment. As I understand it, clearly it is envisaged that what the claimant says will be tested in some way. The benefit will not be paid just because it is claimed. The fact that the Bill provides for adjudications makes that clear. Testing whether a claimant's condition renders him incapable of work inevitably entails medical questions. So much, I understand, is common ground and it forms the basis of the Bill.
§ This amendment is concerned with how appeals from the adjudications can be most conveniently and fairly decided. At the outset, I should declare an interest. The Council on Tribunals, which I am privileged to chair, was consulted on this Bill. I say at once that we are grateful for the good relations that we have with the Department of Social Security. The council, having been called on to address the problem, duly addressed it. It is no secret that we have continuing discussions on a whole range of matters with a number of bodies which are concerned with these issues, including the office of the president of the Independent Tribunals Service.
§ I accept that for any tribunal which has to consider medical questions there is a problem, unless every hearing is to be unacceptably long and expensive. Medical evidence will normally be tendered in writing. A claimant appealing to any tribunal about a medical condition will be well advised to bring along a medical report, usually from his general practitioner and sometimes from the consultant who has been treating him.
§ If every report were full, clear and—dare I say it? —legible, there would probably be no need for this provision in the Bill. If it were expressed in language which was readily comprehensible by lay people, usually—not always, but usually—a tribunal of three lay people would assess the report, decide whether it was consistent with what the claimant said and, it is to be hoped, decide the case. I hope that the medical profession will forgive me when I say that the standard of medical reports produced to tribunals varies, at least those which we have at the moment to adjudicate on invalidity benefit. Some are very good and very clear. Sometimes they are virtually incomprehensible, sometimes they do not address the question at issue and sometimes they consist of a one line certificate from a general practitioner saying that X is unfit for work. Not 342 infrequently, alas, they are handwritten and quite illegible. If that is construed as a criticism of the medical profession, I hasten to say that the legal profession, too, has its occasional lapses.
§ I should add that sometimes a claimant before a tribunal, asked about a medical certificate, replies that the doctor makes a financial charge for a report and that the reason why he is appearing before the tribunal is that he has no money. In the absence of medical evidence, as we heard in a debate earlier today, a tribunal is sometimes reduced to assessing a claimant by noting how he walks into the tribunal hearing room, which basically is relying on uninformed guesswork.
§ I suspect that all this is recognised by the Government, which is why they have sought to make the provision which we have in the Bill; namely, that the tribunal shall be a social security appeal tribunal with provision for a medical assessor. It would help to be told the reasoning behind this because, so far as I am aware, the Committee has not yet been told. But what troubles us about the Government's solution is twofold: there is an objection relating to legal theory and an objection which is severely pragmatic. To say that an objection is theoretical is not to say that it is unreal; it relates to safeguards for natural justice.
§ The courts are always a little uneasy when they are sitting with assessors. If an assessor simply listens to the evidence and then privately tells the court what view he has formed of the issues, then, if the court is to make any use of the assessor's expertise, it will be relying on the assessment of someone who is not a member of the court. It will be forming a judgment al second hand. If the assessor's advice is not made known to the parties, it cannot be challenged or addressed in argument. In effect, a contribution which may be vital to the case has been made by someone who, like the court itself, cannot be challenged but who is not the person whom Parliament has charged with deciding the issue. If the assessor's advice is made known to the parties, then it is virtually essential that it should be open to be explored and challenged. The assessor in effect becomes a witness, although admittedly one called by the tour: and not by the parties. So there is an ambiguity in the position of an assessor which can create difficulties in ensuring that justice is done.
§ The pragmatic problem is that those who appear before a tribunal will find it difficult to understand just who this doctor is and what he is doing there. He is likely to be perceived as deciding the issue. All the reasons why the tribunal consists of three members disappear out of the window. The whole philosophy of the three-member tribunal, as the Department of Social Security frequently reminds us, is that the adjudicators should be lay adjudicators who form a cross-section of the community and whose role is to weigh the evidence. Admittedly, despite these advantages, some courts in dealing with specific questions do find on balance that it is better to have adjudicators. But that does not dispense with the disadvantages of adjudicators.
§ I say at once that I believe the best approach would be to provide proper medical evidence which can be heard by everyone concerned, tested and challenged. But I accept that that would entail providing advice and 343 assistance on a fairly substantial basis and that would probably be legal as well as medical advice. But if instead there is to be a medically qualified person involved in the adjudicative process, then the Council on Tribunals believes that it would be better if one member of the tribunal were a doctor. Then he could ask such questions as he considered necessary; the claimant would know who this doctor was and what he was doing there and the doctor could discuss the case with his colleagues and share responsibility for the decision.
§ It would of course be a separate question whether there would be provision to examine the claimant. I appreciate that there have been debates about whether claimants should be subjected to a further examination. I only make the point that if there is to be a medical examination it is probably better that it should be by a member of the tribunal who is going to participate in arriving at a decision.
§ There is already in existence a tribunal which includes medically qualified members—that is to say, the disability appeal tribunal. I suspect that at least one reason why the Government have preferred the social security appeal tribunal is because it is cheaper. The members do not require to be paid as members of disability appeal tribunals do, although I confess that I have never understood why members of some tribunals are paid and members of others are expected to give their services free.
§ I accept of course that saving resources is a perfectly legitimate reason for taking a decision. There is nothing wicked about trying to save money, particularly if the money saved is devoted to some of the causes which a number of us would suggest and which are suffering from a lack of resources. I take leave to doubt if having medical assessors is a way of achieving the savings, however. If, as I assume, doctors will be persuaded to act as assessors by a suitable fee on a case-by-case basis, and assuming that the list is going to contain, say, five cases in a morning, then a doctor's total receipts for his earnings will cost the Treasury certainly no less than if the same doctor were a member of the tribunal and were paid for his attendance and probably rather more than if the medical evidence were paid for in the first place and the question did not arise. If it is feared that to pay a medical member of the tribunal when the other members are not paid may lead to some resentment among the lay members of the tribunal, I doubt whether that resentment would be dissipated if they learnt that even more money was being paid to the medical assessor.
§ I do not claim that these are easy questions. I understand that the matter was debated briefly in committee in another place. I wanted to read that debate, but the printed version of the report is not available so I have not been able to read it. It may be that the noble Viscount can enlighten me.
§ I would be reluctant to say that this is simply a probing amendment. I hope that I have not simply asked a question, but rather have made a case, although that is not inconsistent with being open to persuasion if the noble Viscount can persuade us. In that spirit I beg to move.344
§ 7 p.m.
§ Baroness Turner of Camden
I support the case made by my noble and learned friend Lord Archer of Sandwell. This is a very important point. The tribunal will be dealing with poor people who will not be represented. It is therefore reasonable that a member of the tribunal should have medical qualifications that would enable him to participate in the final decision, which is more likely to be medically justified than otherwise. I support what is being said.
When the noble and learned Lord, Lord Archer of Sandwell, first stood up I thought that we were going to have a debate as to whether it was more difficult to read a doctor's note or a lawyer's handwriting. But with his expertise in the area of tribunals he quite rightly widened the argument and the case into this quite complex and extremely important area.
We intend that, in cases involving questions of incapacity, social security appeal tribunals will be assisted by a medical assessor. This amendment seeks to ensure that one member of the tribunal will also be medically qualified.
§ Lord Archer of Sandwell
If the amendment is misleading, the drafting of the amendment was entirely mine and I take full responsibility. I was not suggesting that there should be both an assessor and a member of the tribunal. I was suggesting that the assessor should be replaced by a member of the tribunal.
I take the noble and learned Lord's point. We are making provision for appeal tribunals to have access to medical expertise. Our intention is that appeals against decisions made by an adjudication officer on incapacity benefit shall go to social security appeal tribunals. These tribunals comprise a legally qualified chairman, who guides the proceedings and advises on the law, and two lay members. This arrangement reflects the existing provision in invalidity and sickness benefits.
We consider that the most sensitive appeals on incapacity benefit will be those which concern a dispute about the limiting effects of the medical condition on the claimant's capacity for work. In these cases we think that the tribunal should have access to independent medical expertise. Of course, the members of the tribunal will weigh and assess the evidence. They are trained in this and will make the decision. However, to assist and clarify technical medical questions, a medical assessor will sit with the tribunal in those cases where the appeal concerns the question of whether the claimant is capable of work on the "all work" test.
Existing legislation provides for the appointment of such medical assessors at the tribunal chairman's discretion. Our proposal will improve the current situation, in that it will require tribunals to appoint medical assessors in the cases I have described above.
When we were considering the arrangements for the adjudication of incapacity benefit, consideration was given to the merits of including a medically qualified member on a social security appeal tribunal. Some people have asked why we do not propose to have 345 medical appeal tribunals or disability appeal tribunals for appeals on incapacity. We concluded that we should not do so. Medical appeal tribunals are specialised tribunals. They are made up of one lawyer and two medical consultants. The test of capacity for work does not require the degree of clinical specialty offered by medical appeal tribunals and needed for assessing awards in industrial injury benefit and severe disablement allowance. A specialist consultant is not necessarily the best person to judge general incapacity for work.
Disability appeal tribunals have been specifically constituted to consider the range of issues that can arise in disability benefits. Throughout the development of incapacity benefit, we have been careful to draw the distinction between the conditions of entitlement to disability and incapacity benefits. Entitlement to incapacity benefit will depend on the effects of disability on capacity for work.
The intention is that the tribunal will assess all the evidence presented. This will be provided by the claimant and/or their representative, their GP or hospital doctor, and a departmental doctor. The tribunal will reach a decision on that evidence of whether a claimant is incapable of work.
The question before the tribunal is whether, on the evidence before it, the claimant is incapable of work. It is not intended that the tribunal should reach its own decision on the claimant's medical condition. Neither the tribunal members nor the medical assessor have powers to examine the claimant. This is the situation that applies when social security appeal tribunals determine whether a person is incapable of work for the purposes of sickness benefit and invalidity benefit. It is very different from the medical appeal tribunals where the specialist doctors are members of the tribunal, bring their own expertise to bear on the case before them and reach their own conclusions on the claimant's condition, often as a result of examining the claimant. The noble and learned Lord asked me about fees. I can assure him that the question of fees had no impact on our choice of the proposed adjudication system.
§ Lord Archer of Sandwell
I am grateful to the noble Viscount for answering at least that question. I hope he will not take offence if I say that two-thirds of what he said was simply setting out what your Lordships know already because it is in the Bill. I never suggested for a moment that the appropriate tribunal was the medical appeal tribunal. If it will help to narrow this discussion, I say at once publicly that I do not think a medical appeal tribunal would be the appropriate tribunal. I am not sure I understood the reasons given by the noble Viscount for eliminating the disablement appeal tribunal, but I promise that I shall read what he said. In fact, if I may, I shall do a deal with the noble Viscount. I appreciate that his briefing was prepared before he heard what I had to say. I shall read very carefully what he said on the basis that he will read what I said; and then possibly there may be a greater meeting of minds if we return to this matter at Report stage. In that spirit, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.346
§ Viscount Goschen
I beg to move that the House do now resume. In moving this Motion perhaps I may suggest that the Committee stage begins again at eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.