HL Deb 21 April 1994 vol 554 cc350-72

House again in Committee on Clause 6.

Earl Russell moved Amendment No. 53:

Page 14, line 1, at beginning insert ("Subject to subsection (4) below,").

The noble Earl said: The eyes of men, After a well-graced actor leaves the stage, Are idly bent upon him that enters next". Even so, one feels, if one is asked to move the first amendment after dinner, that one is facing competition which one cannot possibly match. Nevertheless, I am glad to see that there are at least a few people present in the Chamber.

I rise to move Amendment No. 53 and with it to speak to Amendment No. 60, which is consequential upon it. The point of the amendment is to give us power to approve the medical test by vote before it actually comes into force.

Of course I know that we already have a procedure for affirmative resolution. Voting on that, as the noble Baroness, Lady Cumberlege, has pointed out, can happen, and has happened. The point was made on the 13th of this month by the noble and learned Lord, Lord Simon of Glaisdale, in the debate on the role of this place; but, nevertheless, that is on occasion a procedure which gives rise to a certain amount of debate, whereas voting on a resolution precedent to the moving of the affirmative instrument is more widely recognised in this place to be a normal procedure, and has been used constantly.

The point is, where we are having parliamentary authority invoked on something which is extremely controversial, there must at some stage be a chance far this place to vote to decide whether it approves it or not. The noble Baroness, Lady Cumberlege, has already argued today on the first amendment that the tests are not yet in a complete state. In fact, I think her exact words were, "They are not ready". So, if they are not ready, it seems a pity if our last chance to give or withhold approval were to be at a stage where we are voting on something which is at best provisional because, however deep our objections are, it is possible —all things are possible—that future changes might make our objections less fundamental. So, forcing us to vote at this stage, when we could vote when we have the completed product to vote on—possibly after further consultation—might lead more people to vote against the Government than would otherwise do so in different circumstances.

I am, as I think I have made fairly clear today, fundamentally opposed in principle to the tests as they presently stand; but I should be reluctant to have to vote out Clause 5 as the only means of expressing that. It seems to me that by leaving the decision until we have the thing properly before us is a more orderly form of procedure. When I had the privilege of listening to the doctors from the Benefits Agency Medical Service I was taken aback because I suddenly recognised, in almost all the details, the same procedure which is being used at the moment to assess my teaching. It seemed quite painfully familiar. So much so that I wondered whether perhaps in this debate I should declare an interest. The only difference was that this procedure leaves out by the skin of its teeth the one thing which made that proposal acceptable to us.

There was there, as there is here, a form to be filled in to which there were set right answers, and any department that scored highly on that form should be ashamed of itself. But the one saving grace there was the opportunity for professional judgment: that the teaching was actually observed by competent people who then had to pronounce practically—the Government might say subjectively—on how good it was. That is the feature which is missing from these tests in restricting both the GP and the Benefits Agency Medical Service doctor from expressing an opinion on whether the patient is capable of work.

There is here a constitutional question upon which I should like to ask for some advice from the Minister, if he is capable of giving it. Where one has, in effect, an identical policy put forward in a large number of departments—and it is not just two, because what is attempted to be done to the magistrates in the current Bill is very similar—whom does one hold responsible? It is all very well to say that the Secretary of State is responsible for the policy of his own department. That is clearly the case, but who is responsible for a policy like this which stretches across the scope of a great many departments?

If I were to put down a Question asking the Government to cease the policy of relying upon these allegedly objective quantifiable tests for assessments, which department would answer that Question?

Though I am implacably opposed to the use of this allegedly objective test, there are certain things which could be done which might make the opposition less implacable. I recognise that I speak from the Opposition side of a Chamber whose powers are limited. I am not asking for the moon. There are certain things which could be done before we reach the final stage which might make it easier for me not to vote against these tests. One is the introduction of a greater element of professional judgment, and with professional judgment must necessarily come a greater awareness of an individual case, because cases are individual. I shall take one, if I may, out of Sherlock Holmes: a man who never completed a meal without taking out his false teeth and throwing them at the person opposite. Since that was a compulsion, it might have rendered him fit to be classified as incapable of work. But I do not think that the tests we have now would in any way show that up.

I shall not say any more about the all-work question. I have said enough about that already; but it would help me if the Government were prepared to undertake to leave mental health out of the allegedly objective test. We have a note which is a study in careful drafting at the bottom of page 27 of the consultation paper. It states: Measuring mental health problems presents particular difficulties. As in the OPCS surveys the questions on mental health problems have been devised in a different fashion from the other categories. This set of experimental descriptions will attempt to build a composite picture of the impact of mental health on capacity for work". Of course, it will not succeed. I asked the Government to take a little more notice of that warning note in their consultation document.

I suggest to the Government that, in considering the tests and making what is intended to be an exhaustive list, they may have forgotten something. There may be some condition—possibly a rare one but even minorities have rights—which renders people incapable of work but which does not show up in the test. If I could get a move towards compromise on those points I should find that helpful.

Before leaving the issue, I wish to probe what the noble Baroness, Lady Cumberlege, said about cases in which the House had divided on regulations. I know that such events have occurred but until recently the Government have frowned on the practice. Was the noble Baroness telling me that the Government would no longer frown on a Division in respect of regulations? If she were to tell me that and to put it in the record, that really would make my amendment unnecessary, and I should be glad to hear it. I beg to move.

Lord Campbell of Croy

I entirely understand the purpose of the two amendments. I wish to confirm their effect and to put a point to the Government. The effect appears to be that the five provisions in this clause of the Bill will be dealt with differently. The first group of provisions—that is Section 171A—would be permanently subject to the affirmative procedure. That is to say, anything which arose under Section 171A would have to come to both Houses of Parliament, and therefore be subject to debate and to a possible vote.

As the Committee knows, I am a member of the Delegated Powers Scrutiny Committee. In our debates on Tuesday a change was made to the Bill as a consequence of paragraphs 7 to 11 of the Select Committee's fifth report; that is, to extend the number of years from three to four. The Select Committee suggested that the period should begin after the commencement of this part of the Bill rather than from Royal Assent. That matter was dealt with earlier. The five series of provisions with which we are dealing are therefore subject to affirmative resolution for four years. The noble Earl appears to be seeking that one group of the provisions shall continue after that.

I may be wrong about that and, if so, perhaps the noble Earl will correct me. However, we must ask the Government whether it will be four years from Royal Assent before the provisions relating to the test and the matters raised by the noble Earl will be before us. If the Minister can guarantee that the matter will come before us within four years, the affirmative procedure will in any case be used in both Houses of Parliament.

Am I right in the effects of the two amendments? If so, will the Government assure the Committee that we will be dealing with this subject within four years of Royal Assent and that therefore we shall automatically deal with it by affirmative procedure?

Earl Russell

I am grateful to the noble Lord, Lord Campbell of Croy, for a helpful speech. It was not my intention to make the amendment apply for the scope of four years. I simply want us to be able to vote on the first introduction of the test, without which the Bill as a whole cannot operate. If it will make the amendment more acceptable to the Government, I am ready to amend that point before we come to Report. I thank the noble Lord for pointing that out.

Lord Campbell of Croy

I am grateful to the noble Earl. I wish to add only that as regards the substance, I agree with everything that the noble Earl has said about mental health and schizophrenia. That is a difficult subject. I am patron of the Schizophrenia Fellowship in Scotland and unfortunately have personal knowledge of that dread disease. I agree with everything that the noble Earl said on the substance but am merely concerned with the effect of the amendments and with understanding when the affirmative procedure will be used.

8.15 p.m.

Lord Carter

It is not often that one's intervention or support for an amendment can be summed up in two words: "Why not?". I shall be interested to hear the Government's explanation of why we cannot have an approach along the lines proposed by the noble Earl.

I was struck by the noble Earl's analogy in saying that he recognised the tests because he had to use them as a teacher. I quickly pulled out two or three. In order to underline what some of us considered to be the doubtful validity of the test, one could substitute the word "teacher" for the curious word "customer", which is used in the DSS draft. It would then read: Assuming no language barrier, can the teacher's speech be understood without difficulty? Do the teacher's thoughts tend to be muddled or slow? Does the teacher often lose track of what is being said in the middle of a conversation? Does the teacher often forget what he or she was doing in the middle of doing something? Does the teacher display any disturbance in normal behaviour? Does the teacher find it difficult to stir himself or herself to do things?". When that substitution is applied to the test one can understand why some of us doubt its validity.

I have asked the Government to give reasons why this approach should not be adopted. Furthermore, it would be extremely helpful if the Minister could give us the precedent for the proposal. I have been a Member for only eight years but I cannot remember a major social security Bill—and I have been involved with most of them—in which so many provisions have been left to regulations which are not in draft and have not yet seen the light of day. Will the Minister say whether there are precedents or whether, as we fear, we are embarking on new ground? If so, what is the justification?

Baroness Robson of Kiddington

I support the amendment. I have been quiet, sitting beside my noble friend Lord Russell all afternoon. It has become blatantly obvious that the regulations relating to the test concern Members on all sides of the Committee. I should welcome the chance of having a full debate and being able to vote on the regulations before they come here as an affirmative resolution.

We were told that we vote on affirmative resolutions. I was always under the impression that we did not do so and therefore I have learnt something today. However, the chances of properly debating the matter, or amending it in a small degree, would be most important to this Chamber. I agree with my noble friend Lord Russell that if we could vote on the regulations, that would go a long way towards enabling us to accept the future business of the Bill.

Lord Carter

It would be helpful if the Minister would confirm that the rules of the House mean that we cannot amend a regulation and that it is only convention that we do not vote against it. As regards this Bill, the Government are straining our patience with the convention a very long way.

Lord Swinfen

If regulations are introduced first into this House rather than the other place—and on this Bill I think that would be a good idea—can we vote against them or even pray against them? I am not quite sure what is the technical term.

Viscount Astor

I looked at the footnote to which the noble Lord, Lord Carter, referred, which he equated to education. One could equate it with trying to take a Bill through this House. If one were frequently muddled or confused, one would receive a severity score of 21.5; but if one got so upset that one broke or ripped things up, one would only receive a score of 18.

Lord Carter

If the Minister is trying to prove that government Ministers are incapable of work, we are entirely prepared to agree with him.

Viscount Astor

I am not trying to prove that. I am. merely pointing out to the noble Lord, Lord Carter, that one can take parts of the test and apply them to anything one wishes. But the whole point about the test is that it must be taken in its totality.

The noble Earl, Lord Russell, raises an important matter. I realised that he was particularly interested in this issue and I read the memorandum which he wrote in his evidence to the Select Committee on regulations and his feelings about them. I believe I am right to say that his amendment would require the passing of a.

Motion by both Houses of Parliament before regulations could be made under the provisions of Clauses 5 to 7. That is how I understand the amendment.

I do not believe that it is right that we should have a further debate on the details of the medical test. I understand the points which the noble Earl made. There is a special test for people with severe mental illness to ensure that they are not subject to unnecessary medical examinations. A doctor will use his clinical judgment in forming an opinion on an individual basis which will take 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 and, indeed, from hour to hour. The doctor will form an assessment of those effects over time.

The noble Earl asked who is responsible for the tests. This is a Social Security Bill. The Secretary of State for Social Security has policy responsibility for social security matters. Therefore, he is responsible for policy and provisions relating to incapacity for work, obtaining social security benefit and so on. If the noble Earl asks questions in the future and I am still answering on behalf of the Department of Social Security, I shall be answering his questions.

Perhaps I may use this opportunity to clarify a matter for my noble friend Lord Boyd-Carpenter. Although he is not in his place at the moment, I am sure that he will read what has been said. When my noble friend Lady Cumberlege pointed out that the House has voted against regulations, she did not mean necessarily that the vote had succeeded. She merely meant that regulations had been voted against on 26 occasions since 1979, and in particular on three occasions in which the Department of Social Security was involved.

The noble Earl asked me whether the Government frowned upon that. That is a matter for the House as a whole. Indeed, there is a convention but that obviously does not preclude your Lordships voting or attempting to vote down regulations if that is the wish of this House. It is that wish that matters.

Earl Russell

I quite accept that it is the will of this House which matters, but I should like to know what advice the Government would give to the House.

Viscount Astor

The Government can only give the House advice on the issues that are before it at the time. I realise that discussions about our procedures take place in your Lordships' House to which I am not necessarily party. I do not believe that it is right to go into them now. I note what the noble Earl says.

We have developed other methods of opposing delegated legislation. Motions can be moved calling on the Government to amend an order in a specific way. We had an example of that on Tuesday. There is no better example of that than the Motion which will be moved by the noble Earl, Lord Russell, on 3rd May to amend the Maternity Allowance and Statutory Maternity Pay Regulations 1994. The effect of such a Motion, if it is carried, is to force the withdrawal of the order. If the Government lost the vote, they would have to consider what changes they would feel proper to bring forward. They would then produce an amended order as in the case of the Income Support (General) Amendment No. 4 Regulations 1988.

The noble Lord, Lord Carter, is right to say that your Lordships cannot amend an order but it can be thrown out. My noble friend Lord Campbell of Croy pointed out quite rightly that I brought forward an amendment to address his anxieties and we have now made a change from three to four years. I assure the Committee that we intend to bring forward the Bill as soon as possible. After Royal Assent, regulations will be made under the clauses specified and will be subject to affirmative resolution. We extended that period to four years.

I understand the noble Earl's anxieties about the procedures with regard to regulations in this House. But we must achieve a balance. I am sure that if we look back, we could all think of occasions on which, had we had a crystal ball, we should have included more in primary legislation. There may be occasions when it would have been better to have included less. Such decisions can be extremely difficult.

We have consulted widely on the medical test. We continue to do so. We are publishing a consultation document in August and we shall take note of all the representations made to us. We want the medical test to have the widest possible acceptance and we shall listen carefully to the comments of your Lordships, as we listened to comments of Members in another place. We wish to have an open debate on the medical test and to produce a test which works. There will be an opportunity to debate the regulations when they come before this House.

Earl Russell

I thank the noble Viscount warmly for the careful, considered and thoughtful reply, which has engaged with the main points of the argument that I was trying to put.

I am particularly grateful for what he said about the use of the Motion to resolve. If a convention were to develop—not necessarily an unbreakable convention but a convention of what happens in normal circumstances—that Motions to resolve were responded to, that might remove a great many of our difficulties.

In that context, perhaps I may say to the noble Viscount that that argument would be more persuasive to me if some action had been taken as a result of the Motion moved in this House by the noble Lord, Lord Henderson of Brompton, on 6th July 1992 which was carried. Several constructive meetings have taken place with the department on that. I admit that there were some technical problems but I understood that they had been overcome. Nevertheless, I see a great deal of encouragement, which I welcome, in the noble Viscount's remarks.

However, I am not quite sure that the noble Viscount has, even now, taken on board quite how fundamental the objections are that some of us are making to the proposed tests. It is not just the detail of the tests but the principle of the tests and their detail. However, we are not actually in office at present. Were there to be significant concessions on the details, that might enable us to be a little more tolerant to objections of principle than we have been so far.

I was not quite so happy with what the Minister said about the difficulty of going into detail. It is a regular parliamentary point. In fact, it is just like what happened when the 39 Articles were put into statute in 1571. Certain Members of another place wanted some of the articles to be amended. The Bishops said, "No, you will refer yourselves wholly to us herein", to which one of them replied, "No, by the faith that I bear to God, we will pass nothing until we understand what it is; for that were but to make you Popes: make you Popes who list, for we will make you none". They succeeded on that occasion in giving statutory approval to 36 out of 39 of the articles, thereby protecting a great many things from prosecution in court of common law. It is a significant power. It is one that I believe neither House should let go of lightly.

I did not really expect an answer to the question about policy. However, I should like to know how I may some time obtain an answer. I refer to the policy of objective tests which has come late to the Department of Social Security, having travelled through many other departments on the way. I should like to find out where it is coming from, because then we could have a more effective dialogue. As I said, I did not really expect an answer tonight. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Astor moved Amendment No. 54:

Page 14, line 1, leave out ("three") and insert ("four").

The noble Viscount said: I spoke to this amendment when I moved Amendment No. 23. I beg to move.

On Question, amendment agreed to.

[Amendment No. 55 not moved.]

Viscount Astor moved Amendments Nos. 56 to 59:

Page 14, line 7, leave out ("(4),").

Page 14. line 7, leave out ("(5), (6)") and insert ("or (5)").

Page 14, line 7, leave out ("or (7)").

Page 14, line 10, after ("171D,") insert ("section 171DA(1), (2) or (3).").

The noble Viscount said: I spoke to these amendments when dealing with Amendments Nos. 18 and 29. I beg to move them en bloc.

On Question, amendments agreed to.

[Amendment No. 60 not moved.]

Clause 6, as amended, agreed to.

Clause 7 [Power to provide for the transition to the new test of incapacity for work]:

Viscount Astor moved Amendment No. 61:

Page 14, line 41, leave out ("three") and insert ("four").

The noble Viscount said: I spoke to this amendment when moving Amendment No. 23. I beg to move.

On Question, amendment agreed to.

[Amendment No. 62 not moved.]

Clause 7, as amended, agreed to.

Clause 8 agreed to.

Clause 9 [Severe disablement allowance]:

Lord Rix moved Amendment No. 63:

Page 15, line 28, at end insert: ("( ) In subsection (1), leave out paragraph (b). ( ) In subsection (2) (b), leave out sub-paragraph (i). ( ) Leave out subsections (3) and (6).").

The noble Lord said: It is somewhat to my surprise that I find myself rising to speak in the Committee stage of the Social Security (Incapacity for Work) Bill. In my previous existence, social security was quite simple: it was a question of no play, no pay. However, I am happy to say that those days are now over. Indeed, an ancestor of a Member of your Lordships' House—an actress called Mrs. Dorothy Jordan who was. shall we say, friendly with the Duke of Clarence—once gave a full performance of Rosalind in "As You Like It" and then gave birth to a child before taking the curtain call. I believe that she was rather late, but she was performing, the following night. That was the kind of social security that we used to enjoy. I am happy to say that things have now changed for the better.

In moving Amendment No. 63, I should like to speak also to Amendment No. 64. However, I must first point out that there is a mistake in Amendment No. 63 to which I draw the attention of the Committee. The third line should read: In subsection (2) (b), leave out sub-paragraph (i)", and not sub-paragraph (ii). I regret to say that the drafting error was made by us and we would like to amend it. Obviously, because of that mistake I shall certainly not press the amendment to a Division.

The purpose of the two amendments is simple. It is to remove the additional test which would otherwise be imposed on top of the new incapacity lest for people claiming the severe disablement allowance. In reply to a letter from me, I recently received a letter from the Minister covering that point, among others, which I copied to my noble friend Lord Allen of Abbeydale and the noble Lord, Lord Carter. The Minister said: While I understand your concern that there will now be an additional test to establish entitlement to SDA, I should explain that right from the start when SDA was introduced it was never a viable option to make incapacity for work the sole qualifying condition". I fear that that rather oversimplifies matters. I am grateful for the Minister's reply, but it comes nowhere near to disposing of the issue raised by the amendments.

When, some 20 years ago, it was decided to give people who were long-term sick or disabled a benefit which did not require contributions or call for a means test, the benefit was called non-contributory invalidity pension and the incapacity test was precisely the same as for contributors; namely, a medical certificate from a doctor saying that the person could not work. There then followed a housewives non-contributory invalidity pension. That did have an extra test of incapacity for household duties for fear that, otherwise, women with minor ailments and no recent work record might qualify too easily if all that was needed was a medical certificate.

However, European equal treatment provisions then caught up. The two pensions were rolled up into the severe disablement allowance and an additional test of 80 per cent. disability was imposed on all non-contributors. There is no doubt that a principal reason was the continued fear about married women qualifying too easily just on a medical certificate—an assumption which is not inconsistent with the fact that the extra test was not imposed on those under 20 years of age. The justification for the additional test for non-contributors was never strong and rested solely on the weakness of medical certification by the general practitioner.

Now that we are to have a much tougher incapacity test, the case for imposing an additional test disappears. I see no reason at all for forcing through a second entitlement hoop for people who, after that indignity, will be getting a lower rate of benefit.

I have spoken at rather greater length than I intended. However, in the light of the Minister's rather limited exploration of previous history, I thought it right to explain as briefly as possible how we had reached the present position. Now, having the Bill, I can only conclude by saying that if the new test cannot be relied upon to keep out of benefit those without a contribution record, it presumably cannot be relied upon to keep out sufficient contributors and we have all been wasting our time. There may be occasions on which making an assurance doubly sure has something to commend it. This is not one of those occasions. Accordingly, I beg to move.

Lord Swinfen

I rise to express my support for the amendment so ably moved by the noble Lord, Lord Rix. In a Written Answer in another place my right honourable friend Mr. Nicholas Scott made clear that new claimants will have to fulfil the requirements of the new objective medical incapacity test. However, in practice I suspect that there will be sufficient evidence in the majority of cases to show that the claimant fulfils the requirement of the new test without any further investigation. In my view, the role of the 80 per cent. test, especially for the groups which have to prove percentage disablement, becomes questionable in the light of a functional test.

If the new medical incapacity test is able to exclude all people who are not incapacitated, then why, in order to receive a lower paid benefit, do claimants of severe disability allowance also have to pass the 80 per cent. test if they happen to be over 20 years of age? To undertake two tests to receive this one benefit makes administrative nonsense. I question the necessity of this over-fervent approach.

Lord Carter

I was extremely pleased to add my name to this amendment. I think the case has been made extremely well by the noble Lord, Lord Rix, and the noble Lord, Lord Swinfen.

The only other point to make is about the cost. It would be interesting to hear the Minister comment on that when he replies. We have not attempted to put a cost on the two amendments because we feel the cost should be nil. It is very hard to understand why the Government have introduced this second hurdle. It would be interesting to hear the Minister's explanation.

Viscount Astor

The purpose of the amendments spoken to by the noble Lord, Lord Rix, is to remove the 80 per cent. disability qualifying test for severe disablement allowance. The amendments would, if brought into effect, remove a vital element in deciding the qualifying criteria and go against the original intention of the benefit. SDA is designed as a non-means tested benefit for those who are severely disabled and have not been able to pay sufficient national insurance contributions to qualify for the contributory benefit when needed during periods of incapacity. Limited resources must be targeted at those with the strongest claim. The disability test ensures that that is the case.

The Committee has argued that this is an additional test targeted on the most severely disabled. However, SDA recipients—unlike incapacity benefit recipients —do not have to satisfy a test of their contribution record. It has never been a viable option to pay a non-contributory incapacity benefit for the severely disabled solely on grounds of incapacity for work. It was for this reason that the disability test was originally introduced for those over 20. Disability and incapacity are two different concepts.

I should remind the Committee that SDA was introduced in 1984 as a replacement for noncontributory invalidity pension. This benefit had been originally introduced in 1975 as a benefit for men and single women. Married women were excluded at that time because they were not then perceived as the breadwinners. The benefit, as I have said, was aimed at those who were denied contributory benefits which were available to those who had paid sufficient contributions while in work. Making the benefit available to all solely on the grounds that someone was incapable of work would have greatly increased the costs.

In 1977 it was decided to extend the benefit to married women but only on the grounds that they satisfied an additional household duties test. Again it was recognised that, because of its non-contributory nature, there was a need to target limited resources on those who had the most legitimate claim to benefit. However, because of concerns raised that the household duties test was flawed—and could be challenged as being discriminatory under the EC Equal Treatment Directive—SDA was introduced in November 1984.

The Committee has argued that without the disability test claimants need only have one medical to qualify for SDA. The incapacity test will test someone's ability to perform work but the disability test has a different role. There is a widespread acceptance, which I am sure is shared by many Members of the Committee, that incapacity for work and disability are not the same thing. In practice, many over-20s will not have to pass the disability test anyway. Provisions already exist for those who have proved they have a disability. This means that someone who has shown he is, for example, entitled to the higher rates of disability living allowance need not be tested again on his disability if he claims SDA. And, as I said earlier, those under 20 need not take the disability test at all.

A great deal of thought has been given to the incapacity test that will apply to SDA from April next year, and we concluded that the most logical way forward is to apply the same test as for incapacity benefit. Indeed it would be illogical and indefensible to continue the current arrangements retaining two different definitions of incapacity and two approaches to testing. We believe it is right that there should be one definition of incapacity which is common throughout the social security system and one test. That ensures that all benefits which are paid in respect of incapacity are paid on a consistent basis. It would be extremely difficult and confusing to operate otherwise when entitlement can arise to more than one incapacity benefit at a time.

The genuinely sick and disabled have nothing to fear from the changes. They will still be able to prove their claim to the benefit under the revised arrangements. And those under 20 will continue to be passported to the benefit without the need to satisfy the disability test. Nor will existing recipients be tested for their incapacity or disability.

I hope that that explanation was perhaps clearer, and certainly went into more detail, than the letter I sent to the noble Lord, Lord Rix. I hope he feels my explanation has answered many of the questions he has raised. I hope I have also shown the Committee that the application of the disability test is still very much a vital part in the qualification for SDA.

Lord Carter

Before the noble Lord, Lord Rix, decides what to do with the amendment, is the Minister really saying that it is the administrative coherence of the scheme that is the concern of the department rather than the people who are actually receiving the benefit? I believe we should know that. I should correct myself. I said that I thought the cost of these amendments would be nil. In fact it should be a minus cost and represent a saving to the department because they would save the costs of the tests.

8.45 p.m.

Viscount Astor

I should answer the point about the two tests. In practice, we are saying that the two tests will be rolled up into one, so the process will not be an administrative nightmare as my noble friend described it. It is difficult to assess the cost of an amendment as one tends to assess the costs of the Bill in front of one. However, I believe that the net cost of the amendment— would not want to give the impression that this would not be subject to change or alteration—could be about£20 million a year, and that is based on the number receiving income support with disability premium and no qualifying benefit, because most would continue to receive income support in any case.

Lord Carter

It would be extremely helpful if the noble Viscount could write to us and leave a copy of the letter in the Library to show how that cost is arrived at.

Viscount Astor

I will see what I can do but I must say that it is difficult to assess the costs of an amendment.

Lord Carter

You just did!

Viscount Astor

I made an attempt at assessing the costs, but I am not sure that I can go any further. However, if I can go further on that, I shall certainly write to the noble Lord.

Lord Rix

I am very grateful to the noble Viscount for the density of his reply. I am sure he will allow me the privilege of reading his reply in some detail at my leisure. Then I will respond to his earlier letter to me of this week and to this debate. I also wish to place it on record that I shall also refer to the question asked by the noble Lord, Lord Swinfen, in regard to the carers in the same letter. I hope that I may receive clarification on that point as well. In view of the fact that the amendment is incorrect in the first place, I certainly could not press it to a Division and therefore I shall withdraw it. Perhaps I shall return to this matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 64 not moved.]

Clause 9 agreed to.

Clause 10 [Disability working allowance]:

[Amendments Nos. 65 to 72 not moved.]

Clause 10 agreed to.

Clauses 11 to 16 agreed to.

Schedule 1 [Consequential amendments]:

Viscount Astor moved Amendment No. 73:

Page 22, leave out lines 18 to 20 and insert ("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 specified;").

The noble Viscount said: I spoke to this amendment with Amendment No. 12. I beg to move.

On Question, amendment agreed to.

Baroness Turner of Camden moved Amendment No. 74: Page 27, line 30, leave out ("Omit") and insert ("In").

The noble Baroness said: In moving Amendment No 74, I shall speak also to Amendment No. 75. These are important amendments. Their purpose is to preserve the non-contributory access to incapacity benefit for people who are industrially injured.

The Bill abolishes the access to contributory sickness benefit for people with an industrial injury who have not otherwise paid sufficient national insurance contributions to qualify. The amendment seeks to restore the status quo and to allow people in these circumstances to retain the right to claim sickness and invalidity benefit.

The provision was originally introduced as a result of the abolition of industrial injury benefit in 1983. As the abolition of industrial injury benefit would have meant that there was no payment except for people who had paid enough national insurance contributions to qualify for sickness benefit, the no-contribution access to sickness benefit was introduced. People who remain incapable of work because of the effects of an industrial accident or prescribed disease after 196 days can go on to IVB on the same no-contribution basis.

This has affected only a small minority of people. In the year 1991–92 only 3,000 spells of sickness benefit began that way when total numbers claiming sickness benefit in that year amounted to 485,000—in other words, such claims amounted to less than one per cent. of the total. Even fewer carried on to receive IVB. In the same year 2,000 people did so. Yet, to the few people concerned, the opportunity to qualify for benefit in this way is very important. This is particularly so when one considers the way in which for many years the Government have been chipping away at the industrial injury scheme. Had we still had the original scheme, the special provisions would not have been necessary.

The Government may claim that this provision is now unnecessary and that other benefits are available. But severe disablement allowance is not really an option since the conditions of entitlement are that the claimant has to be assessed as 85 per cent. disabled as well as incapable of work, as we have just heard from the noble Lord, Lord Rix. A person assessed at a lower percentage would simply not qualify.

Nor can it seriously be argued that injured employees often receive compensation payments. In fact, only about 10 per cent. of those who suffer industrial injury succeed in the courts with common law claims. In the past the Government have argued that there was nothing special about industrial injury, but there is a case for treating such injuries differently, in my view. Some working environments are inherently hazardous no matter what is done in the name of health and safety. In my opinion it is quite unacceptable that the Government should seek, under cover of this Bill, to strike another blow at those injured in the course of their employment. I beg to move.

Earl Russell

The noble Baroness, Lady Turner of Camden, is right. This is an important amendment. The problem of people with defective national insurance contributions is always with us and likely to cause difficulties. As a result of several current trends the amendment is likely to become more important in the future than it is now.

One of those developments is the increasingly rapid trend towards part-time work, often involving pay for a short week which is below the lower earnings limit of national insurance and therefore does not create the necessary contributions record.

The second is the tendency to depress wages, which again may tend to put people below the lower earnings limit. In-work benefits may meet some of those problems but they will not necessarily meet the problem of the contributions record.

The third reason why the amendment is likely to be more important in the future than it is now is the whittling down of safety regulations which we are liable to see as a consequence of the deregulation Bill.

If people do not receive any incapacity benefit or severe disablement allowance, they will have to think how they can live. The first thing they are likely to think of doing if they have anything approaching a quarter of a case is to sue their employer. By definition, these are among the very few people in the country who will still be legally aided. That could add severely to the costs to public funds. In fact, the Government may find that it is a great deal more expensive not to accept the amendment than it would be to accept it.

Viscount Astor

The noble Earl, Lord Russell, put forward an interesting argument and suggested that accepting the amendment of the noble Baroness, Lady Turner, would produce savings for the Government. I am not sure about that. The noble Earl uses a complex argument, bringing in various different elements to try to sustain it. I shall try to address the amendment of the noble Baroness and explain the Government's view on it.

The noble Baroness explained that the purpose of the amendment is to maintain provision for people who are incapable of work because of the effects of an industrial accident or disease, even though they do not satisfy the normal contribution conditions.

Preferential treatment has been afforded to this group since 1948. But the scope of the social security system has increased greatly since that time. It is right to consider whether that preferential treatment should be carried forward to the new benefit. In Committee in another place we agreed to consider whether such a provision should be included in incapacity benefit.

We have come to the conclusion that the preferential treatment for the industrially injured has become anachronistic. That is particularly so when one considers the other benefits which are now available to those who are incapable of work and who have not paid enough national insurance contributions. Severe disablement allowance was introduced in 1984 as a non-contributory equivalent to invalidity benefit. It is available to the severely disabled and those whose incapacity began before the age of 20 and who are unable to work. There is also a much greater range of income-related benefits—income support, housing benefit and council tax benefit—which provide help to those who do not have adequate resources.

It is difficult to see why people injured at work should be treated any differently from, say, people injured in a road accident. We have not heard a convincing argument as to why this small group—we estimate that there are some 1,500 new claims each year —should receive preferential treatment.

The provision's abolition will be a simplification of the complex social security scheme. Existing cases will, of course, be protected. We have considered the matter since the Bill went through another place and I am afraid that I am not able to accept the arguments of the noble Baroness tonight.

Lord Swinfen

Before my noble friend sits down, can he say whether his department has been in touch with the Lord Chancellor's Department on the question of legal aid and whether there would be a saving, as suggested by the noble Earl, Lord Russell? I often feel that when Bills are prepared and brought before Parliament they are drawn up by one department with little or no consultation with any other department as to the cost implications. I do not include the Treasury, because it tries to cut everything, but often, from talking to other spending departments, it would be learnt that something being done by department A was raising costs in department D.

Viscount Astor

My noble friend suggested earlier in the Committee stage that this was a Treasury Bill and not a social security Bill. I pointed out to him then that he was not right, and he is not right now. I can tell my noble friend that in reaching our decision we took note of what was said in Committee in another place. Of course we always consult with other government departments if we feel that that is the right thing to do.

Lord Carter

In relation to what the Minister has just said, at the front of the Bill it is shown that the financial effects of the Bill will he to produce gross savings of £550 million in 1995–96 and £1,450 million in 1996–97. Did that come as a complete shock to the Treasury?

Viscount Astor

It may have come as a surprise to the Treasury but I do not think that it came as a shock. I am sure that the Treasury was delighted to hear the good news.

Baroness Turner of Camden

I am not entirely surprised by the Minister's response to my amendment; but I am rather appalled because I find offensive reference to this group as having preferential treatment. I have always been a supporter of the industrial injuries scheme ever since I have been in the House. There has been a series of attempts by the Government—successful of course because they had the majority—gradually to whittle away and to chip away at the industrial injuries scheme until there is almost nothing left of it.

There is a case for an industrial injuries scheme. As I said when introducing my amendment, many working environments are inherently hazardous, no matter what health and safety precautions are taken. The people who work in those environments have an entitlement to some special consideration. I do not regard it as preferential. We need people to work in unsafe environments in many instances for the sake of the remainder of us. It seems to me only right that there should be a special scheme.

It is the only system we have of no-fault compensation. We have no other scheme under which no-fault compensation existed. As the noble Earl rightly points out, injured workers will now look closely at whether they may effectively sue their employers because their possibility of obtaining any payments out of the social security system eventually will have been severely damaged.

I know that there is no point in dividing the House at this late stage. However, I believe that the Government's attitude to the industrially injured is quite unacceptable. Having said that, I am afraid that I beg leave to withdraw the amendments.

Amendment, by leave, withdrawn.

[Amendment No. 75 not moved.]

9 p.m.

Earl Russell moved Amendment No. 75A:

Page 27, line 43, at end insert: (". In section 130 of the Social Security Contributions and Benefits Act 1992 (Housing benefits), at the end of subsection (5) (power to limit payments by reference to determinations by rent officers) insert:—

The noble Earl said: I seem to have drawn two short straws tonight: not only did I move the first amendment after dinner, but I also move the last non-government amendment. It is a highly technical and complex amendment. I am sorry for that; I shall seek to make it as simple as I can.

The point of the amendment is transitional protection. It is transitional protection for the consequences of incapacity for work on housing benefit. Perhaps I may begin with Regulation 11 of the Housing Benefit Regulations 1987. Regulation 11(2) provides that where, a claimant occupies a dwelling larger than is reasonably required … [or] that the rent payable for his dwelling is unreasonably high", the authority may treat the rent as reduced by such amount that it considers appropriate. We hear quite a lot about the effect of that regulation, meaning that housing benefit falls short of the rent. It is a matter that I hope will be considered in the course of the homelessness review.

However, the real point of the amendment arises from Regulation 11(3) which exempts from the operation of that reduced direction anyone who is found incapable of work. If you are found incapable of work, then you are not liable for these directions reducing the amount of housing benefit you receive.

The Government expect that the effect of the Bill will be that a large number of people at present thought incapable of work will be found to be capable of work. I do not know whether the Government are right in that. But we must at least entertain the hypothesis that they might be right. That could mean that a large number of people having been deprived of invalidity benefit will be hit by the proverbial double whammy. They will almost immediately receive a letter reducing their housing benefit and increasing the demand for rent. Those people will have made all the appropriate arrangements on the assumption, and in the belief, that they enjoyed a certain level of income. When they find that belief to be mistaken, and their income suddenly reduced, it will take them a little time to make the necessary appropriate arrangements for accommodation which they can afford. Cheap, rented accommodation is not in extremely large supply these days.

The amendment seeks a transitional protection of two years. It is by no means significantly different from the traditional transitional protection which the Government considered in relation to the community charge. In fact, the thinking underlying the amendment, so far as I can see, is not opposed to the basic consideration by Government of transitional protection. I hope that they will not find objection to the amendment in principle. If the Government find objections in detail, I shall listen to them carefully. If I were able to meet the Government before Report stage, I shall attempt to do so. However, I do not envisage that it would be useful for the Government to do nothing. If people are not given the transitional protection, they will find that they have to move out of their houses. They may not find anything else. They may become homeless. We know what Sir George Young thinks about the effect of the homeless on the housing waiting list: he finds it extremely inconvenient.

Even if those people do not become homeless, especially if they are getting on in years, they might well become a charge on care in the community; and we do not want any more pressure there, either. The Government might therefore find that this provision is the most practical and economic way of dealing with the situation. I beg to move.

Baroness Turner of Camden

I am sure that the House is grateful to the noble Earl for bringing a matter to our attention which had not occurred to me until he explained the provision. Something ought to be done otherwise we shall simply have more people rendered homeless and more people having to be looked after in the community. It is an important issue and I hope that the Government respond sympathetically.

Lord Swinfen

Even if my noble friend is not able to accept the amendment this evening, I hope that he will give it extremely careful consideration. I am a chartered surveyor by profession. In my time I have managed residential property for various clients. Tenants of residential property in the private sector, caught in the situation described, will not find themselves able to remain in the property for long.

The landlord must maintain the income of the property in order to maintain that property, because maintenance costs are high. The courts will give possession to the landlord when the tenant falls behind with the rent, which is likely to happen. Now that the rules have changed, should this be a housing association tenant, the housing association has a duty to the Housing Corporation, which is government-funded, to maintain the rental income of the properties that it has built with government funds so that it can keep up the regular payment of interest to the Housing Corporation and to any other body from which it has had to borrow money and it would be forced, as would housing associations generally, once again to go for possession of residential properties.

This means that people will be out on the street—with luck possibly in bed and breakfast accommodation; possibly not. We are talking about some of the most vulnerable people in our society and I feel that for a caring government not to look at the point that has been so ably raised this evening by the noble Earl would be quite wrong, not just from a political point of view but, far more importantly, from a moral point of view.

Viscount Astor

Local authorities are required to restrict the level of housing benefit payable if they consider that a claimant's accommodation is either too large for his purposes or the rent charged is particularly high. I believe that that is fair, since housing benefit is designed to meet no more than the cost of reasonable rent. It is not designed for any other purpose.

Nevertheless, some claimants are more vulnerable than others and the housing benefit scheme provides protection against rent restriction for certain tenants. Those include people aged over 60; those with dependent children and people who are incapable of work. In those circumstances, a rent restriction will only apply if there is suitable cheaper alternative accommodation available or it is reasonable to expect a claimant to move.

Of course, people often move in and out of vulnerable group status, perhaps because children leave the household. In that case, a rent restriction may be applied where previously it was not or it may be removed if it ceases to apply.

From April 1995, when the provisions of the Bill come into force, claimants who are protected from a rent restriction will continue to be so as long as they remain incapable of work. Those claimants will also benefit from the transitional arrangements being introduced to protect existing invalidity benefit claimants from any cash loss at the point of change. If they remain incapable of work, they will continue to receive their old rate of benefit and have most of it uprated annually. Many will also be treated as incapable of work for the duration of their claim, without being subject to the new medical test of incapacity.

But I believe it would be inequitable to treat people who are found capable of work after 1995 any differently from other people who are able to work. If these claimants are judged by the local authority to have an unreasonably high rent, then their rent for housing benefit purposes may be restricted to that of suitable alternative accommodation. This in fact is exactly the position of people who are found capable of work under the present incapacity provisions.

I should point out, however, that many claimants will continue to be protected by virtue of their age or their dependent children. Similarly, local authorities do have discretion to pay housing benefit above the level of the rent restriction if they consider the individual circumstances of the case warrant it.

I hope that my explanation of the somewhat complex point which the noble Earl raised and the description of the transitional arrangements which I gave will satisfy the noble Earl's anxieties on the matter.

Earl Russell

I thank the noble Viscount for that reply, which is at least lucid and careful. I cannot say that I am entirely persuaded by it. I had noticed the point on the situation where suitable cheaper accommodation is available, but that can be, and very often is, a matter of opinion. I have known cases where it was said that suitable cheaper accommodation was available but on search it did not turn out to be immediately visible to the naked eye. Further, occasionally when people moved into it, it transpired that the previous tenants had broken up the bath. That is quite a regular problem in Brent and it may take up to a year to persuade Brent Council to repair a bath. That too is a normal problem in Brent. So the idea of suitable cheaper accommodation being available is not entirely persuasive. If such accommodation is available, the person may not succeed in finding it within the requisite time.

Viscount Astor

Perhaps I may intervene. I accept what the noble Earl says about the difficulties in regard to accommodation. I think I am right in saying that in the vast majority of cases in relation to rent, it is not rent in local authority (council) accommodation that is assessed as being too high; it is rent in the private sector —which is rather a different matter. I think that the noble Earl implied that, in effect, local authorities could charge a high rent and then deem themselves to have charged a high rent. I do not believe that in practice that is the case.

9.15 p.m.

Earl Russell

But it is in practice the case that sometimes, if people are required to move out, council accommodation may turn out to be the only option. I mentioned cases from council accommodation because those are in my mind and have been mentioned in the local paper recently. But the cases that I was talking about can occur in private sector accommodation as well.

I heard what the noble Lord, Lord Swinfen, said in a very effective speech; namely, that the landlord may require the person to move out quickly. In those circumstances he may well become homeless before this alleged cheaper accommodation is found.

I take the point that the noble Viscount made about transitional protection within the invalidity benefit itself. But of course that does not apply to housing, which for most people on low incomes is by far the biggest single item in their costs.

The key point that the noble Viscount made lay in the argument that it is inequitable to give transitional protection to people who were once on invalidity benefit that does not go to others. I do not think that he is right about that. The key to the argument for transitional protection is that the old law created a reasonable expectation—a reasonable expectation that was based on the past actions of this Government. Of course I accept that no Parliament can bind its successors and that all governments have a right to change their mind. But governments, including this one, have in the past accepted that when they change their mind and deprive people of rights which they have previously used as a basis of expectation, they do provide a transitional protection. The community charge and council tax arrangements are very clear examples of that. So this Government do not see anything improper about providing a transitional protection.

I think that the noble Viscount should look very carefully at his argument about inequitability to see whether it goes too far and in fact criticises recent actions that this Government have taken. When he does that, and accepts that transitional protection is proper in principle, then he will have to consider its convenience. We have had from every quarter of the House arguments about convenience which are very powerful—from the noble Lord, Lord Swinfen, in particular. I hope that there is time before Report stage for those arguments to be given a hearing. I would be extremely grateful to the Minister if, before I withdraw this amendment, he could agree to meet me before Report stage and discuss whether anything along those lines can be done. I would be very grateful indeed for an answer.

Viscount Astor

Of course I will be extremely happy to meet the noble Earl before Report stage; and obviously before that meeting I will consider carefully what has been said this evening.

Lord Swinfen

I do not want to delay the Committee but if someone with severe physical disabilities is forced to move from one house to another, or from one living accommodation to another, he may be moving from a house that is properly adapted for his needs to a house that has no adaptions at all. There is no need for us to discuss the matter now, but that point should be borne in mind in regard to the additional costs when my noble friend discusses the matter with the noble Earl, Lord Russell.

Earl Russell

I thank the noble Lord for that contribution. With that, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Viscount Astor moved Amendment No. 76:

Page 30, line 27, leave out paragraph 44 and insert: ("44. In section 20(1) of the Social Security Administration Act 1992 (questions to be submitted to adjudication officer), for paragraph (c) (disqualification) substitute—

The noble Viscount said: I spoke to this amendment with Amendments Nos. 18 and 23. I beg to move.

Lord Campbell of Croy

The purpose of Amendment No. 77 was not discussed, although the amendment was taken in a large group at the very end of our proceedings on Tuesday. We were discussing the main point, which resulted in the period of three years being extended to four years.

The Deputy Chairman of Committees (Lord Skelmersdale)

Perhaps the noble Lord, Lord Campbell, will forgive me for interrupting him; but if he is to discuss Amendment No. 77, we should perhaps cope first with Amendment No. 76. The Question is that Amendment No. 76 be agreed to.

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 77:

Page 31, line 21, leave out paragraph 52.

The noble Viscount said: I spoke to this amendment with Amendments Nos. 18 and 23. I beg to move.

Lord Campbell of Croy

I am grateful. I wanted to indicate why I thought that further discussion was necessary on Amendment No. 77. It had had none. It was taken at the end of a group. It was intended to meet quite a different point; namely, the point made in the last paragraph, paragraph 16, of the report of the Select Committee on delegated powers. It pointed out that paragraph 52 of Schedule 1, which this government amendment deletes, had the effect of enabling the Secretary of State to make regulations without consulting the Social Security Advisory Committee in this case, although in other cases where regulations were being made, that committee was consulted. The Select Committee, of which I am a member, recommended that the House should consider whether that provision should remain.

I should like to applaud the Government and give them credit for having acted first and having tabled this amendment to delete that part of the Bill in accordance with the recommendation of the Select Committee.

Lord Swinfen

That is the second time in the two days of the Committee stage that my noble friend has had anything said in his support in the whole Bill. I should just like to congratulate him for standing up to the battering that he has received from all around the Chamber.

Viscount Astor

I am grateful to my noble friend. It is not an onerous task when one believes in the validity of one's arguments. I thank my noble friend Lord Campbell of Croy, who was quite right to point out that the reason that we had the provision was because originally we thought that the issue would just be about rates and therefore did not have to go to the Social Security Advisory Committee. Because it will now be about other matters as well, it seemed proper that it should be deleted.

In fact I believe that the noble Earl, Lord Russell, was the first person to table the amendment. We were almost neck and neck. He allowed me, as it were, to add my name to it, for which I am extremely grateful.

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 78:

Page 31, line 28, leave out ("4(1) (a)") and insert ("4(1) (b)").

The noble Viscount said: This is a technical amendment which changes a reference made to the Employment Protection (Consolidation) Act 1978. This appears at paragraph 53 of Schedule 1 to the Bill and should read "paragraph 4(1) (b) of Schedule 3" and not "paragraph 4(1) (a)". I beg to move.

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 [Repeals]:

Viscount Astor moved Amendment No. 79:

Page 33, column 3, leave out lines 44 to 48.

The noble Viscount said: I spoke to this amendment with Amendment No. 18. I beg to move.

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

House resumed: Bill reported with amendments.