Lords Sitting of 10 May 1994

Preamble
The House met at half-past two of the clock The DEPUTY SPEAKER (Lord Murton of Lindisfarne) on the Woolsack.
Prayers—Read by the Lord Bishop of Oxford.

Game Licences
Lord Geddes Lord Geddes asked Her Majesty's Government:
When they expect to abolish game licences.
The Minister of State, Home Office (Earl Ferrers): My Lords, the matter is still under consideration. We shall announce our conclusions as soon as possible.
Lord Geddes: My Lords, will my noble friend accept somewhat muted thanks for that reply? Is he aware that there were just 44,000 game licences issued in 1993 relative to 47,000 in 1992, which is a drop of some 7 per cent? Can he advise the House whether there was a similar decrease in shotgun licences issued? If there was not such a decrease—which I rather suspect —does he acknowledge that the percentage illegality rate has now increased to over 90 per cent?
Earl Ferrers: My Lords, my noble friend does a lot of arithmetic with the figures that he produced, some of which is hypothetical. He is quite correct that the number of game licences has dropped. The number of shotgun licences in operation at the end of 1992 was 689,236 in England and Wales and 72,143 in Scotland.
Lord Clark of Kempston: My Lords, does my noble friend agree that the fees for game licences are probably less than, if not equal to, the collection charges? Is this not a nonsense similar to dog licences, whereby taxpayers are asked to subsidise the collection charges for a licence? Whether it be a dog licence or a game licence, it probably costs more money to collect than is received, does it not?
Earl Ferrers: My Lords, as usual, my noble friend has a point. The Home Office decrees that there should be a game licence. It is an excise licence and Customs and Excise come under the Treasury. The Post Office collects the licence and the Home Office pays the Post Office £225,000 to collect the fee. The income, which amounts to £220,000, goes to the local authorities. For that reason we are considering whether or not they should be contingent.
Lord Ewing of Kirkford: My Lords, can the Minister say how many Conservative MPs have shotgun licences and to what use they intend to put those shotguns ?
Earl Ferrers: My Lords, one often wonders what is in people's minds, but I do not think that the noble Lord should infer anything nefarious.
Lord Hailsham of Saint Marylebone: My Lords, will my noble friend accept that I am perhaps the only
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Member present who has a valid game licence in his pocket at the moment? Will he take note of the fact that he has until 31st July to make up his mind and that we all very much hope that he will have done so by then?
Earl Ferrers: My Lords, I hope to have made it up by then, too.
Baroness Mallalieu: My Lords, can the noble Earl give the House an assurance that privatisation of game licences is not under consideration?
Earl Ferrers: My Lords, I do not exclude the consideration of anything. However, so far as I know, privatisation of game licences is not one such matter.
Lord Skelmersdale: My Lords, is my noble friend aware that the Game Licences Act 1860 received Royal Assent on a Monday and that in that year the Monday was 13th August?
Earl Ferrers: My Lords, that is an interesting piece of information which I am sure your Lordships will be deeply grateful to my noble friend for expounding.
Lord Burnham: My Lords, can my noble friend say whether consideration is being given to incorporation of the game licence within the gun licence, irrespective of the different authorities involved? People could opt out if they did not wish to take the gun licence. Does my noble friend agree that such a system would immeasurably increase the revenue?
Earl Ferrers: My Lords, that point is being considered. Not everyone who has a shotgun licence wants a game licence. A shotgun licence is a licence to obtain a shotgun. A game licence is an excise duty. That is why the matter becomes rather confused. It is being considered but I doubt whether we shall go down the route suggested by my noble friend.
Lord Mackie of Benshie: My Lords, can the noble Earl say what the 700,000 people, less 44,000 people, do with their guns if they do not shoot anything?
Earl Ferrers: My Lords, I have never asked them.
Lord Geddes: My Lords, as my noble and learned friend pointed out, will it perhaps spur on my noble friend in his endeavours before the 31st July to know that the British Association for Shooting and Conservation and the Country Landowners' Association are totally in favour of the abolition of game licences?
Earl Ferrers: Yes, my Lords. Quite a lot of consultation has taken place. The views vary depending on the perspective of those who are consulted. All of them support as simple a system as possible. I am not surprised that the two organisations to which my noble friend referred wish to see game licences abolished.

United Kingdom Passport: Design
2.38 p.m.
Lord Whaddon Lord Whaddon asked Her Majesty's Government:
Whether they are satisfied with the design of the new United Kingdom passport.
Earl Ferrers: My Lords, the new-style British passport is in a common format which has been agreed with our European partners. The United Kingdom Passport Agency is, however, currently reviewing the design and security features of the passport in order to ensure that they meet developing needs.
Lord Whaddon: My Lords, does the noble Earl agree that courtesy is important in this life, particularly towards visitors? Has he observed that the new passport eliminates the normal style of the name of the holder being on the front? For instance, Mrs. Brown is now shown as "Brown, Mary, female" on the back page. It is impossible for those observing the passport to address the lady by her normal mode, whether it be Miss, Mrs., Ms., Dr. or Reverend. Does not the noble Earl agree that the passport could be improved by restoring the former style of including the name on the front cover? Is it necessary to downgrade such an important document? Are the Government incapable of defending British practice when it is obviously the best?
Earl Ferrers: My Lords, the Government defend British practice constantly and with great success. The idea of one's name being shown on the front of a passport was attractive under the old system. However, the new system does not permit that. I agree that nomen dignitatis is desirable. That is the reason we are considering whether or not it is possible to adjust passports to include the title Mrs, Miss, Ms, Professor or Doctor on the front of the passport.
Baroness Strange: My Lords, is my noble friend aware that my passport actually contains the word "Baroness" on the back page?
Earl Ferrers: My Lords, I am sure that that is wholly suitable.
Lady Saltoun of Abernethy: My Lords, would it not be possible for each country in the European Community to have passports in a different colour? We can then go back to the dark blue that we had while retaining the smaller size which is rather more convenient.
Earl Ferrers: My Lords, that would fuse the system completely. The "common format" refers to passports being the same size and colour and containing the same data. To go along the route suggested by the noble Lady, Lady Saltoun, would not be possible because it would not come within the common format.
Lord Geraint: My Lords, will the noble Earl consider presenting the new passports in either Welsh or English for the people of Wales?
Earl Ferrers: My Lords, the people of Wales are part of the United Kingdom and therefore come quite happily within the common format of the new passport in the same way as they did the old one.
Lord Stallard: My Lords, can the noble Earl tell us what consultations took place and with whom before the new passport was designed? Did not the Prime Minister
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make an award under the Citizen's Charter to the Pensions Agency for its work on passports? However, none of us knows why. Can the noble Earl enlighten us?
Earl Ferrers: My Lords, the common format of the passport comes as a result of discussions within the Council of Ministers and complies with European Community Resolution No. 7098/81. The United Kingdom was very much in the lead in helping to ensure a passport in right and proper order within the Community.
Lord Trefgarne: My Lords, can my noble friend say whether the common format passport is now machine readable, as was originally intended? Also, is the equipment for that purpose adequately available?
Earl Ferrers: My Lords, it is machine readable. But, as my noble friend Lord Trefgarne will have observed, when he returns to this country all he needs to do is wave his passport—I believe it is known as the "Bangemann wave"—because people returning to this country do not need to have their passports read. Countries such as the United States of America and Canada possess reading machines. If one were to visit those countries doubtless one's passport would be read by a machine if the airport to which one flew was lucky enough to have one.
Lord Hailsham of Saint Marylebone: My Lords, can my noble friend guarantee that there will not have to be a referendum upon this important subject?
Earl Ferrers: My Lords, heaven preserve us from such a thought!
Baroness Mallalieu: My Lords, can the Minister assure me, as the holder since February of a new flimsy passport which is already showing signs of wear and tear, that Her Majesty's Government made contingency plans to deal with the inevitable increase in applications for the replacement of passports which fall to bits during their currency period?
Earl Ferrers: My Lords, the Passport Agency is doing very well. The targets for renewal are down to four weeks between January and June, three weeks in July and August and two weeks between September and December. The overall average maximum turn-round is nine working days for the year as a whole and at the present time it is about two weeks. I do not think the noble Baroness need worry too much.
Lord Tordoff: My Lords, is the noble Earl aware that people from other Parliaments with whom I have visited South Africa and other places are surprised to find that Members of your Lordships' House and another place do not hold what are called "diplomatic" passports? I am not necessarily seeking one. But is there any intention to introduce that system for Members of the United Kingdom Parliament?
Earl Ferrers: My Lords, that is a matter under consideration but as yet no decision has been made.
Lord Williams of Elvel: My Lords, the noble Earl may recognise that he did not answer the question of my

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noble friend Lady Mallalieu. The new passports tend to disintegrate. Can the Government assure us that when my noble friend's passport disintegrates the passport office will be in a position immediately to issue a substitute?
Earl Ferrers: My Lords, I thought I answered the question of the noble Baroness appropriately. I recall answering questions at this Dispatch Box a few years ago when everyone was complaining that it took too long for passports to be renewed. I tried to explain to the noble Baroness that there has been great success in reducing that time. It is unlikely that her passport will disintegrate all of a sudden and therefore she will have a fortnight in which to replace it. However, if she finds that it does suddenly collapse, I shall do my best to ensure that she receives a new one.
Lord Williams of Elvel: My Lords, will the noble Earl then substitute himself for the passport office so that my noble friend can apply directly to him for a new passport?
Earl Ferrers: No, certainly not, but I am always happy to be used as a post box.

Doncaster College for the Deaf
2.50 p.m.
Baroness David Baroness David asked Her Majesty's Government:
Whether they agree with the Further Education Funding Council's decision not to accept Doncaster College for the Deaf as a recognised college of further education for the deaf.
The Minister of State, Department for Education (Baroness Blatch): My Lords, I wrote to the noble Baroness on 28th April and again yesterday to explain that the Further Education Funding Council has confirmed that it will continue to fund places for students with learning difficulties and disabilities at Doncaster College for the Deaf in cases which meet the council's published criteria for such placements.
Baroness David: My Lords, I am grateful to the Minister for her Answer and indeed for the letters that I received and the copies of letters to other people that she has sent me. But I persist in the question because the education of 16 to 19 year-olds with learning disabilities is an important one, so I thought it was a good thing to air this problem. Is it correct that it is the responsibility of LEAs to buy placements at independent specialist institutions for young people of 16 to 19 provided that they have a statement and that the Further Education Funding Council has responsibility for buying placements if there is not a statement and if the college is educationally appropriate? Is Doncaster College educationally appropriate; and is it the Further Education Funding Council which decides whether it is or not?
Baroness Blatch: My Lords, the noble Baroness is absolutely right to make the distinction between those young people who have a statement and those who do not. Both under the existing rules and under the new
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rules it will be important for local education authorities to assess the further education needs—the post-16 needs —of a child at the age of 14 and 15 so that all of this is thought through in advance. For a child who has a statement and continues with a statement, it is the responsibility of the local education authority. That has been properly recognised in the split of funding between the FEFC and the local authorities. For all other students post-16, depending on whether they go to a school or an FE college, the local authority or the Further Education Funding Council meets the cost. But they have distinct and definite obligations to young people with special needs.
Baroness David: My Lords, perhaps I may follow that up. The Minister did not answer the last part of my question about Doncaster College being considered an appropriate educational institution and whose responsibility it is to decide that.
Baroness Blatch: My Lords, Doncaster College is responsible for providing education on both counts. First, at 16-plus it is an extension of a school and therefore it is highly appropriate for a local education authority to make a placement for a statemented child and to meet the costs of that placement. It is also entirely proper, and indeed it is done, that the Further Education Funding Council will meet the needs of young people with special educational needs who do not have statements. So it is possible for the FEFC to fund Doncaster College, as it is for local education authorities to fund places at the college.
Lord Lucas: My Lords, does my noble friend agree that there are perhaps two problems here? One is the longer term problem where the local education authorities perceive substantial financial benefit in not giving students over the age of 16 statements so that they then become the responsibility of the Further Education Funding Council. That long-term dispute is causing a hiatus in the supply of students to Doncaster College for the Deaf which is resulting in it facing extinction while the dispute is being sorted out.
Baroness Blatch: My Lords, my noble friend raises an important issue but I should like to reassure him on a number of points. First, a local education authority is responsible for young people up to the age of 19. If a young person has profound deafness and is statemented, it is the responsibility of the local education authority to be concerned about provision via a statement post-16. Therefore it is important that the local education authority continues with its obligation to young people with deafness or any other disability that might be the subject of a statement. It is also the obligation of the Further Education Funding Council to meet the adequate needs of people with special needs who fall short of being statemented. The Further Education Funding Council has done a great deal of work on this matter to clarify the situation. It has invited the principal of Doncaster College to come and discuss the problem. It has offered to issue guidance. Only yesterday sought a detailed reply to the submission, which I know is in the hands of many noble Lords, answering point by point

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and clearing up the confusion between the distinct funding responsibilities of the FEFC and local authorities.
Lord Judd: My Lords, will the noble Baroness accept that we are all greatly encouraged that the Further Education Funding Council is to meet the principal of Doncaster College? Can she give an assurance that when this meeting has taken place the Further Education Funding Council will write to all similar institutions on the basis of that conversation and clarify the situation, as there is wider anxiety following the incidents at Doncaster?
Baroness Blatch: My Lords, I must make it clear that the Further Education Funding Council will continue to meet its obligations under the Act. But it is the local education authorities which continue to be responsible for young people with statements. For someone with blindness or deafness, or indeed both or another disability, who is the subject of a statement, and where the conditions of that pupil do not change at the age of 16, the local authority must accept the responsibility. However, the FEFC will also fund places at the college. On the noble Lord's second point, the FEFC will continue to clarify the point with any institution. I know that the college at Derby has been concerned about this area of funding. The FEFC will continue to make as clear as possible the distinction between the two sectors.
Baroness David: My Lords, is it right that some students are still missing out and are not being funded? That is my understanding.
Baroness Blatch: My Lords, it is not true but it relates to a point made by my noble friend Lord Lucas. One of the problems last year was that the local authorities were using, sadly, as a mechanism not statementing a child post-16 in order to allow the bill to fall to the FEFC. Last year the FEFC picked up some of those people precisely because it did not want young people to fall through the net. What it is trying to do now is to get back on a proper footing, as befits the legislation, so that local authorities have their responsibilities and meet their responsibilities under the Act. But what caused the confusion was the Further Education Funding Council doing the decent thing by young people last year.
Baroness Lockwood: My Lords, will the guidance to which the Minister referred make the position absolutely clear so that local authorities cannot then avoid any responsibility which they have for statemented children?
Baroness Blatch: My Lords, only last evening we had a good debate on the code of practice for young people with special needs. There is definitely a great deal of guidance contained within that code of practice for local education authorities. What we are saying to local education authorities—and it is well within the code of practice—is that they must consider the medium and longer-term needs of young people with special needs, particularly those with statements, much earlier
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in the process—not when they are 16 but when they are 13, 14 and 15—so that all the arrangements can be properly made in advance.

Bullying in Schools
2.58 p.m.
Lord Ashley of Stoke Lord Ashley of Stoke asked Her Majesty's Government:
Whether they will amend the Parent's Charter to ensure that all complaints of school bullying are investigated by the school and any necessary action taken.
Baroness Blatch: My Lords, the department has prepared a leaflet offering parents advice on how to approach schools if their child is being bullied and what to do if they are not satisfied with the school's response. Parents will also have the opportunity to raise concerns about bullying with school inspection teams, who must seek the views of pupils, parents and teachers on the incidence of bullying and the school's response. Given these measures, I do not think there is a case for further amending the Parent's Charter.
Lord Ashley of Stoke: My Lords, I am sure the noble Baroness will do all she can on this subject, but what makes her think that guidance and advice and inspectors will succeed now when they have failed in the past? Is she aware that when Childline recently set up a bullying helpline there were no fewer than 18,995 calls about bullying? Is not the best way of tackling bullying to require every school to investigate complaints and then take action? If that can be incorporated into the Parent's Charter, fine, but if it cannot, we should bring forward other measures and insist that they are carried out.
Baroness Blatch: My Lords, the noble Lord makes a very important point. More guidance and more words on paper are not going to make a difference unless schools, parents, the community at large and those who should be listening to the silent pleas of young people who are being bullied listen to those pleas and take action. That is what matters—the action taken. The most difficult aspect of bullying is not schools taking action when they know about it but finding a way in which young people in school will admit that they are being bullied. That is the problem. We shall do what we can.
We have produced a leaflet for children saying "Don't suffer in silence". We have produced a leaflet for parents and families. We have produced a package for the schools as well. We are also making a film which will be frequently shown on television appealing to young people to let somebody know—a friend, a neighbour or someone else they trust—so that the system knows that the child has a problem.
Lord Elton: My Lords, is my noble friend aware that many of us are much impressed by the effort being made against this sometimes dangerous circumstance? We welcome what is being done by the Government and

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hope that my noble friend and her colleagues will monitor what is going on and in a year's time consider whether more is needed.
Baroness Blatch: My Lords, I thank my noble friend for those comments. This is a very vexed issue. It is something which we must continue to monitor and leave no stone unturned to do what we can to help young people to give voice to the fact that in some cases their lives are being destroyed by bullying. In terms of complaints, what we do not want to do is to single out bullying as something which schools must take seriously in the complaints system. Schools are now required to take all complaints seriously, whatever they are about. To single out bullying as one instance leaves a very large number of other issues which are also the subject of complaint. There is a general obligation on schools to take complaints seriously. We would regard a complaint about bullying as something which the school must take very seriously indeed.
Lord Skelmersdale: My Lords, I would be the first to agree with my noble friend that schools must take this matter very seriously. Should not all schools have policies for dealing with bullying in the same way as they have to have policies for sex education and various other parts of their operation within the school?
Baroness Blatch: My Lords, that again is a very good point. All schools now must have policies for almost everything. That includes discipline, pastoral systems, sex education, religious education and so forth. These policies must be discussed with the parents. The key here is to involve parents in the process of trying to achieve the aims of the school. So my noble friend can be reassured that that is the case.
The other insurance policy, if I can put it like that, is the inspection system now. Schools are visited every four years. Allowing parents, either individually or collectively, to make their views known to the inspectorate about the school will go a very long way to help. They can either say something publicly or very privately to the inspection team, who can take the matter into account when inspecting the school.
Lord Judd: My Lords, in view of the long-term psychological damage and grotesque waste of talent that can result from bullying, will the Minister accept that we are all encouraged by the action which she and her department are taking to deal with the matter? Does she agree that in order to be firm in dealing with bullying, the ethos and the values which are operative in the school and in the community at large are very important? Does she further agree that the best way to provide a favourable environment for dealing with bullying is to emphasise the importance of a caring society in which we are all concerned for our fellow beings and that we are not just one person against another with the devil take the hindmost?
Baroness Blatch: My Lords, the heart of a good society is good individuals. Schools are in the business of concerning themselves with the wholesomeness of young people, and that means concerning themselves with the self-discipline of young people. The ethos of
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the school is taken into account when the inspectorate visits a school. It looks to see what is said in the glossy brochure and in fact what happens in practice. I have read many glossy brochures and know that all schools claim to be caring, nurturing establishments, aiming to achieve the potential of all children. But, frankly, some of them are like St. Trinian's on a bad day.
The important thing is that the reality is properly tested by observation. The tragedy when a young person loses his or her life as a result of bullying is that so often the parents, other members of the family and often the school were unaware that there was a problem in the first place. The key is to make sure that young people open up about their unhappiness in school.
Lord Ashley of Stoke: My Lords, I should like to congratulate the Minister on the leaflets because they are very good indeed. They are very strong and convey an important message. What we want is for every school to have an anti-bullying policy written into the prospectus, winning the co-operation of parents, and the situation being carefully monitored. If we can get that, it will do even more than the noble Baroness is doing already, on which I congratulate her. We need a firmer hand to stop this awful malaise in schools.
Baroness Blatch: My Lords, I believe that the leaflets and other documents will go a long way to help schools to address this issue. As I believe the noble Lord knows, we have paid for a special study to be done by Sheffield University. Much of the information in these documents has arisen from that research.

Social Security (Incapacity for Work) Bill
3.6 p.m.
Report received.
Clause 1 [Incapacity benefit: entitlement]:
Lord Swinfen Lord Swinfen moved Amendment No. 1:
Page 2, line 14, leave out ("364") and insert ("196").
The noble Lord said: My Lords, the purpose of this amendment is to reinstate the payment of long-term benefit at 28 weeks as now, rather than delaying payment to 52 weeks as written into the Bill. The Bill extends the period classed as "short-term incapacity" 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. The amendment seeks to restore the current position whereby long-term benefit is payable after six months of incapacity. Redefining long-term incapacity as starting after one year represents a substantial reduction in benefit even for those passing the more stringent incapacity test who could be regarded as those genuinely incapable of work.
One of the main arguments which has been put forward for delaying benefit entitlement is that it is because the definition of long-term incapacity has been changed. During all stages of the Bill in both Houses the Government have only justified this redefinition on the basis that it is a more reasonable period than 28 weeks. In Committee my noble friend Lord Astor said:
"We consider that 52 weeks is a better definition of long-term incapacity".—[Official Report, 19/4/94; col. 101.]

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Yet since 1971, when it was introduced by a Conservative Government, invalidity benefit for long-term incapacity has been payable after 28 weeks of sickness benefit. Payments for long-term incapacity for people without a national insurance record will, however, still begin at 28 weeks. Severe disablement allowance, which will have the same test of incapacity as the new incapacity benefit, is payable in full with age additions after 196 days of incapacity. In my view, it is ludicrous to have different definitions of long-term incapacity.
Although it has been argued by Her Majesty's Government that occupational cover is available to people during these crucial weeks, it is by no means the general rule. Even the department's own figures show that fewer than one in four people on invalidity benefit have such cover. The arguments put forward so far are not convincing. I suggest that rather than designing a benefit to target the needs of disabled people, the Government are more concerned with cost cutting.
Delaying long-term entitlement means that until the 52nd week of incapacity, the basic rate of benefit is not awarded at the full rate; that there is no allowance for children; that no full allowance for a non-working partner can be paid and that no allowance based on the claimant's age is payable. In Committee, a government amendment introduced payment at 28 weeks for people with a terminal illness where life expectancy is six months or less, and I welcome that. However, other groups with considerable needs will still have to wait. Even people with severe disabilities or progressive conditions will have to wait a year for full benefit.
From weeks 29 to 52 a basic rate of £52.50 is payable —a loss under the Bill of £5.10 per week, which is £122.40 by the end of the first year. Awarding the full rate of benefit at 28 weeks would reduce the savings that the Government expect to make by £110 million in the current financial year and £150 million in 1996–97. No children's allowance is payable under the Bill. The loss of a child's allowance amounts to £11 per week for an only child; and a married claimant with two children will lose £45.65 per week, which amounts to something over £1,000 by the end of the first year.
The adult dependency increases will not be paid at the full rate. Claimants with adult dependants will not be able to receive the full dependants increase until the end of the first year. People with no dependent children in the household lose most. For a married claimant under 40 with no children, the loss is £51.75 per week, which amounts to £1,242 between the 28th and 52nd weeks of incapacity—a large sum of money.
No age allowance is payable. Age allowances, now payable from the 28th week of incapacity with invalidity benefit, will similarly be delayed. Because of the change in the age bandings, the losses will depend on the age when the claimant became incapable of work. The over-45s will lose £3.80 per week. People between the ages of 40 and 45 will lose £1.50 per week and those aged between 35 and 40 will lose £6.05 per week. The net saving resulting from delaying the payment to 52 weeks is estimated at only £10 million per year.
Delaying payment of the age allowances and
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dependants allowances will penalise older people who become disabled in the future. It represents a substantial reduction in benefit but without any evidence that claimants' needs have been reduced correspondingly. One of the consequences of limiting payments between 28 weeks and 52 weeks is that people could be forced to live on a level of income which is often below that of income support. Someone who is disabled with a non-working partner and two children under 11 would be entitled to only £79.40 per week. That is over £16 per week below their income support entitlement. Contrary to original intentions for invalidity benefit, for the first time in over 20 years substantial numbers of people could become reliant on means-tested support during those weeks.
Delaying full incapacity benefit for a full year will also have a knock-on effect for entitlement to the disability premium. That is payable with means-tested benefits, such as income support, housing benefit and council tax benefit. All depend on receipt of long-term benefit. At present, it is payable from the 196th day of incapacity. After April 1995, entitlement to the premium will be delayed until 52 weeks. That will mean that some people will have to pay more rent and council tax while at the same time having a lower disposable income. I beg to move.
3.15 p.m.
Baroness Darcy (de Knayth): My Lords, I should like to give brief but warm support to the amendment which has been so comprehensively and clearly moved by the noble Lord, Lord Swinfen. He gave a very clear explanation of it and I do not need to add much. As the noble Lord explained, delaying the long-term entitlement until the 52nd week of incapacity means that claimants do not get the full rate of benefit; that they do not get child allowance; the full allowance for a dependent spouse, or the age allowance. While I very much welcome the fact that the Government have introduced an amendment which means that at 28 weeks they will pay the higher rate for people with terminal illness, it still leaves other severely disabled people with a year to wait before receiving the higher rate of benefit.
As the noble Lord, Lord Swinfen, said in Committee (col. 104 of Hansard) on 19th April—I paraphrase—the moment that a person becomes incapable of work is the time of greatest expense, with mortgage and hire purchase payments to meet, and it is the time when expensive adaptations may need to be carried out to the home. That is the point also when one becomes subject to all the extra additional daily costs of disabled life for which the disability living allowance can never fully compensate. I hope that your Lordships will give the amendment your fullest support.
Earl Russell: My Lords, the noble Lord, Lord Swinfen, has given a comprehensive account of people subjected to reductions in their disposable income. For a moment, that may appear simply as figures in a ledger. What we need to do is to translate those figures in the ledger into the actual experiences that are likely to result.

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By coincidence, April's Social Policy Bulletin of the National Association of Citizens' Advice Bureaux landed on my desk while I happened to be preparing for this amendment. It reports—this is only one example among hundreds that are possible—considerable difficulties being faced by clients with health problems who are struggling meet their telephone bills. Among the numerous cases, I refer to only one. It is a case from Sussex in which BT refused to negotiate repayments for an outstanding telephone account for a client with severe epilepsy who was caring for two children while her husband was in hospital because of mental illness. The client had 24-hour emergency call-out cover arranged with the local authority for use by her children should she have an epileptic fit. She was told by BT that it was not its fault if she needed a helpline.
That is the sort of thing that reductions in disposable income on this level are likely to mean. I question whether that is in the public interest and whether it is, on the whole, likely to lead to any reduction in public expenditure.
Baroness Hollis of Heigham: My Lords, this afternoon we are all shaping social security provision for the sick and the disabled. We are making decisions that will shape their benefit and their financial support. As the noble Lord, Lord Swinfen, told the House, since 1971 invalidity benefit has been paid at the long-term rate after six months. Under the proposals, although the new incapacity benefit tests people and certifies that they are disabled and incapable of work at six months, nonetheless that benefit will not be paid at the full rate for another six months beyond that—that is, until 12 months have passed. In the intervening six months, those disabled people who qualify by the new medical test will nonetheless receive a benefit which will not only be much lower than invalidity benefit is now and much lower than unemployment benefit, but which will also be lower even than income support which has in the past, as I think we have accepted, set a minimum floor.
Perhaps your Lordships will bear with me if I quote figures to give the real incapacity benefit income for the many thousands of families with a disabled family member living with them. Allow me to round them to the nearest pound, include the disability premium, and add in or subtract child benefit, according to the benefit rules. So I am talking about net total income. A disabled married man with a 12 year-old child on invalidity benefit now receives £124 a week, and on income support £122 a week. On incapacity benefit he will receive £89 a week. That same man with two children now receives on invalidity benefit £143 a week, and on income support £130 a week. On incapacity benefit he will receive just £98 a week. That same man with three children on invalidity benefit now receives £163 a week, and on income support £145 a week. On the new incapacity benefit he will receive just £106 a week.
A married man in his fifties, whose children have grown up and left home and whose wife is not working and is perhaps caring for him, on invalidity benefit now receives £100 a week, and on income support £99 a week; in future he will receive £52.50 a week. That is
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what a disabled man and his wife will have to live on for a week. His benefit will be halved, falling even below the level of income support he now receives.
We are shaping that benefit. What would your Lordships say of a benefit which pays less if you are sick than if you are well; pays less if you have the higher costs of disability (diet, laundry, heating) than when you are well; and pays less when you cannot work than when you cannot for the moment find work? You would say that such a benefit was not humane, and you would be right. But what would you say of a benefit which, if you contributed to it through national insurance, pays less than if you had not contributed to it? The contributory national insurance benefit will pay less than non-contributory income support. That, you would say, is perverse, and you would be right.
What would your Lordships say of a benefit that pays the same to a single man as to a man and his wife, or pays the same to a couple with one toddler as it pays to a couple with three teenaged children, taking no account of family needs? You would say that was not decent, and you would be right. We can remedy that today. We can decide, if your Lordships please, that the point at which the tough new medical test at 28 weeks confirms that a person is genuinely incapable of work is the time at which such a person should receive the full higher rate incapacity benefit, as now, and not six months later.
The Treasury estimates that overall the Bill will produce savings of £1.5 billion. The amendment, we are told, would cost £150 million in a full year. So, instead of having savings of £1.5 billion, the Government would have savings of £1.485 billion. Your Lordships may think that that is not a large sum in terms of the total expected savings.
The Minister may argue that many disabled families need only a low benefit because they have an occupational pension. As this is a contributory benefit, for which they have paid, that should not be a relevant argument. But even if it were relevant, it is not true, because only 38 per cent. of disabled people have an occupational pension, and they tend to be white-collar workers. The majority—two-thirds—have no income other than this benefit. The Minister may argue that they can nonetheless turn to income support. They will have to, because where is the couple, disabled and with all the heating and laundry costs that that brings, who can live on £52 a week? Are we setting a contributory benefit for the disabled so low that if there are no private means, two-thirds of the disabled then have to turn to a second benefit (income support) to top it up, even to reach the minimum living standards, which requires them to apply to a second set of staff at benefit offices, go through a second bureaucracy, and experience additional stress and strain, stigma, cost and worry? If that is what we are sentencing them to, why have a disability benefit at all? Why not merely send them all off to income support and have done with it?
Our decision today is our decision and not the Treasury's. This is an all-party amendment. There are voices today from all around the House concerned about disability and benefit after someone has been certified by the new medical test as incapable of work. There are worries about that benefit being pitched below income

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support level. We hope on these Benches that the voices of your Lordships will be heard tonight and that we shall be asking the Commons to think again in due course.
Lord Boyd-Carpenter: My Lords, perhaps before the House comes to a decision, my noble friend the Minister will tell us what would be the cost of accepting the amendment. I do not believe that anyone disputes that most of the money spent would be going to good, excellent and indeed appealing causes. But experience, which, as your Lordships know, I had as someone responsible for administering national insurance, taught me, as I believe it has taught many of your Lordships, that the fact that benefits will do a lot of good, if granted, is not necessarily a conclusive argument for granting them.
It is always necessary for this House and another place to weigh against the benefits, which will undoubtedly be given by making this provision, the additional cost. Before making up your minds on this important amendment, which has been most eloquently moved and supported, your Lordships will want to know what would be the total cost of granting it and what repercussions that might have upon other aspects of social security.
Earl Russell: My Lords, before the noble Lord sits down, does he agree that the question should be put to the Minister net of any saving on income support which would result from carrying the amendment?
Lord Boyd-Carpenter: My Lords, it is for the Minister to decide how he puts it, but your Lordships' House—I include in particular the noble Earl—is capable of understanding, whichever way the Minister sees fit to put it. When the Minister is answering difficult questions of this sort, we should not attempt to lay down the terms in which he answers. We shall listen.
Lord Ashley of Stoke: My Lords, the noble Lord, Lord Boyd-Carpenter, asks a legitimate question, but it is my impression that it has already been answered by my noble friend Lady Hollis and by the noble Lord, Lord Swinfen, in his admirable opening speech. The Minister can decide whether to vary the figures given by both—if I may so describe them—my noble friends.
The Minister says that the Bill is about targeting. That is right. There is no doubt that the Government are targeting. They are targeting sick and disabled people, picking them off and shooting them. They are damaging them greatly. The House has heard, with some measure of incredulity, about the cuts in the income of people who can ill afford any cut and who in fact need an increase.
Punishing the needy is a poor policy for any Parliament, but that is precisely what the Government's proposals are doing. Those people are being devastated and demoralised. I hope that noble Lords will heed this important amendment. There is no doubt that to delay the benefit for six months is to deprive, because people are sick and disabled throughout the whole period. After 28 weeks, they are confirmed as having been long-term sick and disabled. If that is confirmed there should be no argument—the payment should be made. The Minister
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says that 52 weeks is a more realistic definition of long-term sickness. It is more ruthless but it has nothing to do with realism. We all know that the true definition is clear after six months.
To define a person as long-term sick or disabled at 28 weeks but to refuse to pay benefit until after 52 weeks is devoid of all logic. Furthermore, it is arbitrary and unfair. We should be under no illusion that the Government's proposals are an echo of the depression years when the incomes of the poorest were cut. At that time, we were ashamed of the uncaring attitude of the government and we can avoid being made to feel ashamed again by voting for this splendid amendment.
3.30 p.m.
Viscount Tonypandy: My Lords, I am reminded of the years of the 1920s when a man not genuinely seeking work—the same phrase—where there was no work would be denied his dole. This is not a matter only of arithmetic but of the kind of country in which we live. I know from my experience that among the proudest people in the land are the poorest. There is a fierce pride among the poor and this proposal will humiliate those who have enough trouble as a result of the sickness that has been proclaimed by the doctor. To humiliate them is unworthy of this House and unworthy of the country of which we are a part.
I know some of these people who struggle to live —and they struggle. As I said in Committee, none of us has to struggle to live and none of us is afraid of what is coming tomorrow. However, we are dealing with people who are not in our position and the compassion for which both sides of the House is renowned should be revealed.
I know that the Minister has a difficult job in replying. I had the privilege of being a Minister for a long time and many times I had difficult jobs to do. I do not envy the Minister if he has to rise and say, no. I say to the House only that the Minister has his job to do; his brief is prepared whatever we say in this Chamber. His answer is ready but your Lordships have an answer in the Division Lobby.
Lord Milverton: My Lords, I wholeheartedly support the amendment. My noble friend Lord Boyd-Carpenter spoke about the amendment in terms of fewer costs and statistics. However, there is another cost, as implied by the noble Viscount, Lord Tonypandy. It is the cost of human beings' health and well-being. Are we going to help the health and well-being of a man, a woman, a boy and a girl, or not? Any type of benefit is about helping and enabling a man, a woman, and their children if they are still living with them, to have a feeling of decent and reasonable security.
If the Government cannot accept the amendment they may have to provide income support, as has been suggested. They will have to provide some other kind of benefit and support to help the people who will need help. And for many of them the need is genuine. Let Her Majesty's Government try to recall the cost of goods. If a person becomes ill and cannot work as he would like, the costs increase. The Government should bear in mind

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the cost of children's clothes, shoes and so forth. One sees in this country money being spent freely—yes, one does—and therefore it cannot be that this country is as poor as it is supposed to be. One sees money floating about all around. Perhaps it does not come from a large majority, but I believe that the majority is larger than people think. If that is the case, surely this country can behave decently towards those who are really in need. Therefore, let Her Majesty's Government give a true and proper answer if they believe that this amendment cannot be accepted.
What are we about? Money is found for this and that but when it comes to people it seems that it cannot be found. We are concerned to help the minds, the souls and the bodies of men, women and children. What are we going to do? Let us see that we get our priorities right and, if need be, to make a sacrifice. Most of us in this Chamber have during our lifetime been prepared to make a sacrifice for one reason or another. We have made sacrifices in bringing up our children. As most people know, it is not only in war that we sacrifice—we sacrifice in believing in standards and values not only for ourselves but for our children. If we are prepared to make sacrifices for ourselves, our children and our immediate family—and if this is, as it is supposed to be, by tradition a Christian country—we should be prepared to sacrifice in a decent way for those who are genuinely in need. And the majority of claimants are genuinely in need. There may be some scroungers, but I believe that the majority are genuine. As the noble Viscount, Lord Tonypandy, said, there is a healthy pride in the British people; whether they are English, Scottish, Welsh or Irish. I hope that the Government can give a decent answer otherwise they might find a surprise in the Division Lobby.
Lord Ewing of Kirkford: My Lords, when I took part in the debate in Committee I burdened your Lordships with personal experiences of three lengthy periods of illness in three different occupations. Your Lordships will be relieved and delighted to know that I shall not repeat those words today. Instead, I wish to tell your Lordships that only last week in the Library of this House I read the latest list of HMSO publications. One of those publications struck me forcefully—it stood out from all the others on the list. It was entitled How to Live on a Low Fixed Income and it was priced at £15. I now understand why HMSO is highlighting in its recent list of publications a document for those who have to live on low fixed incomes—in this case, £52.50 per week. The charge for finding out how on earth to make ends meet on £52.50 per week is £15!
Perhaps I may say with great respect that the noble Lord, Lord Boyd-Carpenter, asked the wrong question. The question in this debate is not what would be the cost to the Exchequer if the amendment were accepted. This debate is about a benefit which is in place at present, which is paid for by the state, as it has been for the past 23 years since 1971, and which is now being taken away. That is what the debate is all about. Therefore, with great respect, the answer that we should hear from the Minister is not what will be the cost to the Exchequer if the amendment is accepted but what will
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be the savings to the Exchequer if the Government's proposals are implemented. Of course it is relatively easy to define savings in financial terms. But no one can estimate the hardship, misery and worry which will be caused if this policy is introduced.
I intend to speak only briefly. Twice—the noble Lord, Lord Swinfen, in his excellent speech, and my noble friend Lady Hollis—mention has been made of the question of occupational pensions. Whether they are occupational pensions or benefits at a time of sickness is irrelevant. When occupational benefits or pensions were introduced in this country, they were not introduced, and far less encouraged, on the basis that they would be replacements for state benefit. They were introduced and encouraged on the basis that they would top up existing state benefits. If the Government are now saying that occupational benefits, be they pensions or sickness benefit, are to replace state benefits, today we are at the beginning of a very dangerous slippery path leading to the abolition altogether of state benefits for those who have contributed through their salaries towards the receipt of occupational benefits. It is a very dangerous argument for the Government to be promoting in support of their case. Therefore, I hope that they will make their position clear. Occupational benefits have always been a means of topping-up and not replacing. If the Government are saying now that those benefits, paid for by the employee, are to be a replacement for state benefits, they should make that clear so that we know where we are.
I do not wish to be too political, but this Government are perceived by the people to be adding injustice to injustice. That is why people voted in the way that they did last Thursday. I suspect that in the Euro-elections also the people will exact their price for the perception that the Government are adding injustice to injustice.
Naturally when people look at legislation they compare how we treat ourselves with how they are treated. I leave with your Lordships a thought about how we in Parliament treat ourselves. Prior to the 1987 election, a measure was pushed through another place about three or four weeks before the dissolution of Parliament to ensure that, if a Minister lost his job for any reason whatever—if he was sacked, replaced in a reshuffle or he resigned—his ministerial salary would continue for three calendar months from the date on which he left office. To put it bluntly and in stark terms, if the Prime Minister were to go this afternoon, his Prime Ministerial salary would continue until 10th August. That measure was pushed through, and I quote verbatim the reason:
"In order to allow Ministers to adjust to a lower level of income".
Perhaps I may say as an aside that I notice that all the Ministers who left office adjusted immediately to a higher level of income. We have scene very good examples of that in your Lordships' House.
But we cannot justify, and the Government should not try to justify, what is being done in this Bill to the long-term sick, on the one hand, and then handing out these goodies, on the other. That is why people in this country are so angry about the harsh treatment of different sections of our community.

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I agree with the noble Viscount, Lord Tonypandy, that the Minister's brief has already been written. He will have to stand and read it whether or not he agrees with it. I have been in that position, and I am sure civil servants have been worried stiff when they saw me rise at the Dispatch Box in case I was about to change government policy. But the Minister before us has nothing to lose and everything to gain by accepting the amendment. If the Minister indicates that the Government will not accept the amendment, I plead with your Lordships to impose this amendment upon them and vote with those of us who support it in the Division Lobby.
3.45 p.m.
Baroness Masham of Mon: My Lords, as the noble Baroness, Lady Hollis of Heigham, said, it is not reasonable to assume that most people have savings and pensions on which to draw. Incapacity benefit will be all that most people have on which to depend financially.
Life for severely disabled people is very expensive indeed. The added stress of disability and not having enough money on which to live may just be the breaking point. Is it not wise to try to keep families together? I have known some cases where, in the first few weeks of severe disability, the partner of the person who has become disabled has panicked and left. That really happens. When the disabled person then finds that he does not have enough money on which to live, that can be the breaking point.
Baroness Elles: My Lords, we have heard a great many moving speeches and many figures have been quoted. When my noble friend replies perhaps he will tell the House what is the minimum sum that a genuinely disabled man who is married, with at least one child under the age of 12, will receive. Many of us will be concerned not only about the figures that have been quoted this afternoon but also about the effect that the proposal could have on children within families where disability suddenly strikes those families. That is a factual question which I hope the Minister will be able to answer when he winds up this debate.
The Parliamentary Under-Secretary of State, Department of Social Security (Viscount Astor): My Lords, the noble Viscount, Lord Tonypandy, said that I would have a difficult job in replying to the debate. He always makes a persuasive argument but I shall seek to be as persuasive as the noble Viscount.
The noble Lord, Lord Ewing, mentioned to your Lordships a publication which cost £15, a copy of which is in your Lordships' Library. I believe that the only point which the noble Lord made was as to the importance and success of public libraries throughout the country.
The noble Lord, Lord Ashley, said that the Bill targets the sick and the disabled and is an echo of the depression years. I do not believe that it does that at all.
My noble friend Lord Milverton said that there is a cost involved. The Bill is all about providing a benefit. I should remind your Lordships that the budget which my department has this year is £88 billion. That is the
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budget for the Department of Social Security, and it is not an insignificant sum. For example, it is more than the budgets of the Department of Health and the Ministry of Defence put together.
I turn now to the amendment. I believe that it would assist your Lordships if I were first to answer the question about costs. According to how we see the amendment—and my figures are different from those of my noble friend—I believe that the cost of paying long-term incapacity benefit from week 29 would reduce public expenditure savings by about £45 million in the year 1995–96 and by about £60 million in the year 1996–97. Those figures are net of income support costs and the costing assumes that payment of long-term incapacity benefit is a passport to disability premium in income support, housing benefit and council tax benefit.
The Bill introduces a new benefit payable at three rates. The longer the period of incapacity, the higher the rate. Short-term incapacity benefit will consist of a lower rate payable for the first 28 weeks of sickness which is equivalent to the current rate of sickness benefit, currently £43.45, and a higher rate payable after 28 weeks equivalent to the higher rate of statutory sick pay, which currently stands at £52.50 a week. Long-term incapacity benefit at a rate equivalent to the current rate of invalidity benefit (currently £57.60) will, with the exception of payments to the terminally ill, be payable after 52 weeks.
The restructuring will provide a basic income to those who cannot work and focus resources on those who are genuinely long-term sick. Your Lordships have asked why we need to restructure the benefit and introduce a new medical test. Our intention is to focus the benefit on those who are genuinely and medically long-term sick. That is the group which needs most support.
I make no apologies for once again pointing out that the Government must contain spending on sickness benefits. Invalidity benefit is the fastest growing contributory benefit. It is second in cost only to retirement pension. Spending on that benefit has doubled in real terms in the past 10 years, from £2.7 billion to £6.2 billion. No responsible government could let that growth go on unattended. If we did, spending would grow by a further 50 per cent. or more in real terms by the end of the decade. This Government are determined to introduce a system which is affordable and which focuses benefit on those most in need.
The amendment is at odds with the Government's strategy of providing a sustainable and well-targeted system. Your Lordships must consider whether that expenditure would be a sensible use of resources. I believe that it would not be. Many claimants will have other resources, such as occupational sick pay, occupational pension, personal savings or income from a partner who is working. To pay after 28 weeks considerably higher rates of benefit would duplicate that provision. That would not be good targeting. It is important to remember that, where other resources are not available, the income-related benefits are available to top up payments of short-term incapacity benefit.
The noble Baroness, Lady Hollis, talked about people falling below the level of income support. No

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one should fall below that level if they are able to claim income support. We believe that it would be irresponsible to raise the level of a contributory benefit —a non-means tested benefit—to the level at which no one would qualify for income support. The noble Baroness suggested that there was some stigma attached —:indeed, that was the word that she used—to claiming income support. I do not believe that that is right and I have to say that I find the remark somewhat insulting to those people who have to claim that benefit.
My noble friend Lord Swinfen mentioned the fact that SDA is payable at 28 weeks. However, SDA recipients are less likely to have worked and less likely to have other resources. As a consequence, we believe that it is right that the benefit should be payable from 28 weeks. My noble friend also asked whether we would consider extending the concession which the Government have agreed for the terminally ill to all groups that have been exempted from the medical test. We believe that most claimants will come on to incapacity benefit after receiving statutory sick pay for the first six months of incapacity for work. It is at that point that staff from the Benefits Agency will award the long-term rates. For many that will be the first day of state incapacity benefit. Adopting the exempt groups as a gauge of severity of incapacity would be a very crude measure. It would exclude some severely disabled people simply because their conditions range from mildly incapacitating to severe. Going on then to pay the long-term rate of benefit to exempt groups after 28 weeks on the grounds of the severity of disability would be inequitable.
My noble friend also said that 52 weeks was too long to wait for the disability premium. We believe that 52 weeks is a better definition of long-term incapacity. Indeed, long term incapacity is only one of the many routes into the disability premium paid with income support and other income-related benefits. The premium is also awarded to people who are in receipt of DLA, AA and SDA. It is also awarded to the registered blind. Those people will continue to qualify for the premium under the same rules and at the same time as now. The most severely disabled will not be affected. We do not believe that it is true that two-thirds of people will go on to income support. We estimate that, even after the changes, only perhaps a quarter will actually have to use income support.
If I understood her correctly, the noble Baroness, Lady Hollis, said that people are tested as regards being incapable of work at six months and that, therefore, is long-term incapacity. The point is that one is tested for incapacity from the first day of a claim—that is, both now and in the future—through medical certificates from a doctor. There is no link between the test and the applicable rates of benefit.
The noble Lord, Lord Ewing, talked about occupational pension schemes being a replacement for state benefit. It is not; indeed, that is not the case. It is a top up. When one considers SERPS, one contracts out of that scheme into an occupational scheme receiving a rebate on National Insurance contributions. It is not possible to receive an occupational pension and a full SERPS.
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My noble friend Lady Elles asked about the average amount of money that a person could earn, whether or not he was on benefit. As I am sure my noble friend will realise, it is most complicated to calculate the various different amounts. However, if my noble friend will bear with me, I hope that my reply will make some sense to her. The information on the number of invalidity benefit recipients who are in receipt of other sources of income is not available. Estimates of the percentage of invalidity benefit recipients who are in receipt of other sources of income and the average amount of income are as follows. We believe that 38 per cent. are occupational pensions; 78 per cent. are non-income related benefits; the figure for the community charge and housing benefit is 37 per cent; and the figure for income support and family credit stands at 7 per cent. I know that that is, perhaps, a complex answer to my noble friend's question. However, it is difficult to take the example of one person to try to explain exactly what the figure might be when one does not know the exact circumstances. Indeed, those circumstances could be very different because of the many different kinds of resources involved when people claim income support.
The Government looked at what might be a more balanced definition of long-term incapacity—a definition which would minimise the extent of duplication of provision but which would reflect the needs of long-term incapacity. We concluded that one year is a more reasonable measure of long-term incapacity. Many people want to and do return to work within one year of sickness. We must remember that people do not go on to invalidity benefit and stay on it forever; indeed, many people claim the benefit but later come off it. Where other resources exist, it is reasonable to expect that they should be used to support periods of short-term sickness. It is right that the state should shoulder more of the burden through the higher long-term rate of benefit.
Of course, there is no generally accepted definition of what constitutes long and short term. It will always be a matter of judgment. By setting the definition at one year, we believe that we have struck a balance between the interests of taxpayers and contributors and the needs of long-term incapacity. I urge your Lordships to reject this amendment. It was rejected in Committee. This is exactly the same amendment as the one we dealt with then, and I urge your Lordships to reject it again today.
4 p.m.
Lord Carter: My Lords, we had no vote in Committee; how could we reject it?
Viscount Astor: My Lords, if the noble Lord will remember, it was negatived in Committee, therefore it was rejected.
Lord Swinfen: My Lords, my noble friend is quite right when he says that the amendment was rejected in Committee. He forgets, however, to tell the House that prior to Committee stage I had assured him that I would not press it to a Division, and that I was attempting to withdraw the amendment when a Member of your Lordships' House, who was so much in favour of the amendment that he thought he would be helpful, asked

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that I should not withdraw it. It was therefore necessary, when the Question was put, for me to shout in favour of my own amendment. In order to bring the same amendment back at this stage of the Bill, I did not appoint Tellers, so, technically speaking, the amendment was negatived. Therefore my noble friend is being a little ungenerous in what he has said.
We have had a long debate. We have demonstrated how important this amendment is by the number of speakers who have spoken. Apart from my noble friend Lord Astor and myself, there have been 10. The vast majority have spoken in favour of the amendment. One important point is that I understood from what my noble friend said when replying to the amendment that he does not know what the minimum benefit would be. It strikes me therefore that there has not been considerable effort put in to finding that out—not by him but by his advisers —and that therefore this is not a Bill, as I said at the previous stage, that has been drafted by my noble friend's own department but rather by the Treasury. That is the impression that I am given. The noble Viscount, Lord Tonypandy, said that it was a question of what sort of country we wish to live in. I think that we ought to accept this amendment. We are a civilized country. We should look after those who are genuinely incapable of work and we should do that properly. I feel I have no alternative but to ask your Lordships to agree to this amendment.
4.2 p.m.
On Question, Whether the said amendment (No.1) shall be agreed to?
Their Lordships divided: Contents, 136; Not-Contents, 138.

Division No. 1

CONTENTS

Addington, L.

Darcy (de Knayth), B.

Airedale, L.

David, B.

Allen of Abbeydale, L.

Dean of Beswick, L.

Allenby of Megiddo, V.

Dean of Thomton-le-Fylde, B.

Archer of Sandwell, L.

Desai, L.

Ashbourne, L.

Donaldson of Kingsbridge, L.

Ashley of Stoke, L.

Dormand of Easington, L.

Attlee, E.

Eatwell, L.

Avebury, L.

Ennals, L.

Baldwin of Bewdley, E.

Ewing of Kirkford, L.

Bancroft, L.

Falkland, V.

Bath, M.

Foot, L.

Beaumont of Whitley, L.

Gallacher, L.

Beloff, L.

Geraint, L.

Blackstone, B.

Glenamara, L.

Bonham-Carter, L.

Gould of Potternewton, B.

Bottomley, L.

Graham of Edmonton, L.

Brimelow, L.

Greene of Harrow Weald, L.

Broadbridge, L.

Gregson, L.

Brooks of Tremorfa, L.

Grey, E.

Bruce of Donington, L.

Halsbury, E.

Campbell of Eskan, L.

Hanworth, V.

Carmichael of Kelvingrove, L.

Harding of Petherton, L.

Carter, L.

Harris of Greenwich, L.

Castle of Blackburn, B.

Haskel, L.

Chapple, L.

Healey, L.

Chatteris of Amisfield, L.

Hilton of Eggardon, B.

Cledwyn of Penrhos, L.

Hollick, L.

Cocks of Hartcliffe, L.

Hollis of Heigham, B.

Cornwallis, L.

Hothfield, L.

Coventry, Bp.

Howell, L.

Cox, B.

Howie of Troon, L.

Cudlipp, L.

Hughes, L.

1450

Hylton-Foster, B.

Peston, L.

Jacques, L.

Pitt of Hampstead, L.

Jay of Paddington, B.

Plant of Highfield, L.

Jenkins of Hillhead, L.

Prys-Davies, L.

Jenkins of Putney, L.

Rea, L.

Judd, L.

Richard, L.

Kennet, L.

Rix, L.

Kilbracken, L.

Rochester, L.

Kings Norton, L.

Russell, E.

Kinloss, Ly.

Sainsbury, L.

Knollys, V.

Saltoun of Abernethy, Ly.

Lawrence, L.

Sefton of Garston, L.

Listowel, E.

Serota, B.

Llewelyn-Davies of Hastoe, B.

Shannon, E.

Lockwood, B.

Soper, L.

Lovell-Davis, L.

Stallard, L.

Mackie of Benshie, L.

Stedman, B.

Mallalieu, B.

Stoddart of Swindon, L.

Mar, C.

Strabolgi, L.

Masham of Ilton, B.

Swinfen, L. [Teller.]

Mason of Barnsley, L.

Thomson of Monifieth, L.

McCarthy, L.

Thurso, V.

McIntosh of Haringey, L.

Tonypandy, V.

Merlyn-Rees, L.

Tordoff, L.

Milner of Leeds, L.

Turner of Camden, B.

Milverton, L.

Wallace of Coslany, L.

Molloy, L.

Whaddon, L.

Monkswell, L.

Wharton, B.

Mulley, L.

White, B.

Murray of Epping Forest, L.

Wigoder, L.

Nathan, L.

Williams of Crosby, B.

Nicol, B.

Williams of Elvel, L.

Ogmore, L.

Wise, L.

Oxford, Bp.

Zouche of Haryngworth, L.

Pearson of Rannoch, L.

[Teller.]

Perry of Walton, L.

NOT-CONTENTS

Aberdare, L.

Davidson, V.

Addison, V.

Denham, L.

Ailesbury, M.

Dixon-Smith, L.

Aldington, L.

Donegall, M.

Alexander of Tunis, E.

Dormer, L.

Alport, L.

Eden of Winton, L.

Annaly, L.

Elibank, L.

Archer of Weston-Super-Mare, L.

Ellenborough, L.

Arran, E.

Elliott of Morpeth, L.

Astor of Hever, L.

Elton, L.

Astor, V.

Erroll of Hale, L.

Balfour, E.

Ferrers, E.

Barber of Tewkesbury, L.

Flather, B.

Birdwood, L.

Foley, L.

Blake, L.

Fraser of Kilmorack, L.

Blatch, B.

Gainford, L.

Boardman, L.

Geddes, L.

Borthwick, L.

Gisborough, L.

Boyd-Carpenter, L.

Goschen, V.

Brabazon of Tara, L.

Granard, E.

Braine of Wheatley, L.

Gray of Contin, L.

Bridgeman, V.

Gridley, L.

Brougham and Vaux, L.

Grimston of Westbury, L.

Bruntisfield, L.

Haig, E.

Burnham, L.

Harmar-Nicholls, L.

Butterworth, L.

Haslam, L.

Caldecote, V.

Hayhoe, L.

Carnock, L.

Henley, L.

Carrington, L.

Hives, L.

Chalker of Wallasey, B.

Holderness, L.

Chelmsford, V.

Hood, V.

Chesham, L.

Howe, E.

Clanwilliam, E.

Jellicoe, E.

Clark of Kempston, L.

Kenyon, L.

Cockfield, L.

Kimball, L.

Colnbrook, L.

King of Wartnaby, L.

Constantine of Stanmore, L.

Kinnaird, L.

Courtown, E.

Knutsford, V.

Cranborne, V.

Lauderdale, E.

Cranbrook, E.

Long, V. [Teller.]

Cullen of Ashbourne, L.

Lucas, L.

Cumberlege, B.

Lyell, L.

1451

Mackay of Ardbrecknish, L.

Rodger of Earlsferry, L.

Marsh, L.

Romney, E.

Merrivale, L.

Seccombe, B.

Mersey, V.

Selborne, E.

Milford, L.

Sempill, Ly.

Middleton, L.

Skelmersdale, L.

Morris, L.

St. Davids, V.

Mountevans, L.

Stewartby, L.

Mowbray and Stourton, L.

Stodart of Leaston, L.

Moyne, L.

Strathclyde, L.

Munster, E.

Strathcona and Mount Royal, L.

Murton of Lindisfarne, L.

Strathmore and Kinghorne, E.

Nelson of Stafford, L.

[Teller.]

Onslow, E.

Sudeley, L.

Oppenheim-Barnes, B.

Thomas of Gwydir, L.

Orkney, E.

Thurlow, L.

Orr-Ewing, L.

Tollemache, L.

Oxfuird, V.

Torrington, V.

Park of Monmouth, B.

Trefgarne, L.

Peel, E.

Trumpington, B.

Pender, L.

Vaux of Harrowden, L.

Peyton of Yeovil, L.

Vivian, L.

Pike, B.

Wade of Chorlton, L.

Pym, L.

Wakeham, L. [Lord Privy Seal.]

Rankeillour, L.

Westbury, L.

Rawlinson of Ewell, L.

Whitelaw, V.

Reay, L.

Wynford, L.

Rippon of Hexham, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.11 p.m.
Viscount Astor Viscount Astor moved Amendment No. 2:
Page 2, line 30, leave out from beginning to ("is") in line 32 and insert:
("(2) Subject to the following provisions of this section, the weekly rate of short-term incapacity benefit").
The noble Viscount said: My Lords, in moving Amendment No. 2 I should like to speak also to Amendments Nos. 3, 4, 5, 9 and 10.
These amendments are consequential on previous government amendments in respect of terminally ill claimants. As your Lordships may be aware, I tabled an amendment in Committee to bring forward the highest rate of incapacity benefit for people who are terminally ill. As a result the rate of short-term incapacity benefit payable will be equivalent to long-term incapacity benefit from the 29th week. It will include increases based on age and increases for dependants. The amendments I am moving today deal specifically with claimants who are terminally ill and over pension age.
The Bill makes provision for short-term incapacity benefit to be paid beyond pension age for up to 52 weeks in a spell of incapacity for work. The rate of benefit payable, as with sickness benefit now, will be based on a claimant's entitlement to retirement pension. After 52 weeks of incapacity claimants will be expected to claim retirement pension. Long-term incapacity benefit will not be available beyond pension age. I believe it is reasonable to assume that someone who falls sick before they reach pension age but who could return to work at some point should be able to receive incapacity benefit. If incapacity is prolonged then retirement pension is the correct benefit over pension age.
The amendments correct a technical defect which would have meant that claimants over pension age who are terminally ill would not have been able to benefit from the concession. The amendments go further than correcting this fault and allow these claimants to receive either the long-term rate of incapacity benefit which
1452
would have been payable had they not been over pension age, or the pension age rate of short-term incapacity benefit whichever is the more beneficial. After the maximum 52 weeks of short-term incapacity benefit, terminally ill claimants over pension age will transfer to retirement pension.
The amendments also allow references in the Bill to short-term incapacity benefit at the higher rate to be construed as references to claimants who have been entitled to short-term incapacity benefit for 196 days. This will ensure that all claimants, including those who are terminally ill or over pension age, will be able to benefit from the training and disability working allowance long-linking rules.
I am sure that your Lordships will welcome these changes. The number of people affected is comparatively small but the amendments offer significant improvements in these cases. I beg to move.
Lord Carter: My Lords, I am glad to welcome the amendments. If I speak to them briefly that gives me the opportunity to thank the Minister for the very helpful letter that he sent on the point that I raised at Committee stage on the need to ensure that in the guidance, in the regulations and in the handling of the benefits the person who is terminally ill is not made aware of the fact by the way in which the regulations are explained. In his letter the noble Viscount said that:
"In particular, we will [be] seeking ways to ensure that claimants who are unaware that they are terminally ill, are not inadvertently made aware about the severity of their condition through the benefit system".
That is the point that we tried to ensure. That is extremely helpful.
On Question, amendment agreed to.
Viscount Astor Viscount Astor moved Amendments Nos. 3, 4 and 5:
Page 2, line 38, leave out from ("age") to ("that") in line 40 and insert ("the weekly rate of short term incapacity benefit is, subject to subsection (4) below,").
Page 2, line 41, leave out ("that paragraph") and insert ("section 30A(2) (b) above").
Page 3, leave out lines 6 to 16 and insert:
("(4) In the case of a person who has been entitled to short-term incapacity benefit for 196 days or more in any period of incapacity for work and is terminally ill, the weekly rate of short-term incapacity benefit payable, if greater than the rate otherwise payable to him under subsection (2) or (3) above, shall be equal to the rate at which long-term incapacity benefit under section 30A above would be payable to him if he were entitled to it.
For the purposes of this subsection a person is terminally ill if he suffers from a progressive disease and his death in consequence of that disease can reasonably be expected within 6 months.
(4A) References to short-term incapacity benefit at the higher rate shall be construed as including short-term incapacity benefit payable to any person who has been entitled to that benefit for 196 days or more in a period of incapacity for work, notwithstanding that the rate of benefit is determined in accordance with subsection (3) or (4) above.").
The noble Viscount said: My Lords, I beg to move Amendments Nos. 3, 4 and:5 en bloc. I have just spoken to the amendments withAmendment No. 2.
On Question, amendments agreed to.
Lord Swinfen Lord Swinfen moved Amendment No. 6:
Page 4, leave out lines 1 to 3 and insert (""incapacity benefit after 196 days"").
The noble Lord said: My Lords, this amendment seeks to reintroduce child dependant additions for the 29 to 52 week period, as is at present the position with invalidity benefit. The amendment is similar to one which was moved at Committee stage on 19th April. At that time my noble friend confirmed that the Government's approach was consistent with the long-standing arrangement whereby increases for children are paid with short-term benefits only if the beneficiary is over pensionable age. He said that prior to 1984 child dependency increases in short-term benefits were payable at a significantly lower level than with long-term benefits. Subsequent increases in child benefit had influenced the rate of child dependency increase.
My noble friend said that it had proved unnecessary to pay child dependency increases with short-term benefits and he did not believe that that would cause hardship. He went on to say that many people would be receiving additional income such as occupational pensions or sick pay from their employers, but they could claim income support if family income was insufficient.
However, when invalidity benefit was introduced in 1971 the Government—a Conservative Government—appear to have had a rather different view of the impact of disability upon a family. Speaking in the other place on 3rd May 1971 during the Second Reading of the National Insurance Bill, the Secretary of State—then Sir Keith Joseph—said:
"We are for the first time proposing to treat the children of invalidity pensioners more generously. After all, one of the most tragic results of chronic sickness is the strain on the standard of living of a family containing children".—[Official Report, Commons, 3/5/71; col. 1017.]
While it is true that child benefit did not exist in 1971, family allowance did. Nevertheless, that administration recognised that there was a need to provide additional help to such vulnerable families. Substantial amounts of money are involved. Between the 29th and 52nd weeks of incapacity a family would, as I understand it, lose £235 for one child, £498 for two children and £760 for three children. I am not convinced by the Government's argument that families will be cushioned during that period against the delay in receiving additions.
In a Written Answer on 24th February this year the Minister of State said:
"We estimate that around 25 per cent. of people awarded incapacity benefit after April 1995 will also be entitled to income support between the 28th and 52nd weeks of incapacity. This represents an average at a point in time of 20,000 in 1995–96, and 30,000 in 1996–97".—[Official Report, Commons, 24/2/94; col. 367.]
How will the 75 per cent. who will not be eligible for income support manage?
On 31st March this year, the Secretary of State for Social Security was asked what estimate he made of the proportion of recipients of incapacity benefit who are likely to be receiving occupational pension payments between the 29th and 52nd week of incapacity, and after the 52nd week; and the basis for that estimate. The Minister said in a Written Answer that the information was not available.
It is an extremely important amendment. Children are the lifeblood of our society; they are our future. I beg to move.
Baroness Hollis of Heigham: My Lords, we support the amendment. A few moments ago, an amendment was lost by 138 votes to 136 which would have brought forward the benefit of all disabled people who have passed the medical test and have been certified as incapable of work to the full higher rate at six months instead of 12.
This amendment is a fallback amendment to that position. The Minister moved an amendment which the House accepted—we welcomed it—that those who are terminally ill should enjoy the higher rate of benefit at six months. The amendment ensures that those families with children should also enjoy the higher rate of benefit at six months.
Almost all of those present are either parents or grandparents. We all know—do we not?—that children are costly. Yet unless we amend the Bill no allowance for children will be built into the new incapacity benefit. Children eat food, and require school dinners. They require jeans and trainers as well as clothes for school. They live in a home which probably requires an extra bedroom because they are there. They make demands regarding the wear and tear of the furnishings. A child wants to take part in school trips. He yearns for a bike and hopes to go occasionally with friends to the cinema or the swimming pool. None of that is unreasonable. Yet all the research shows that to maintain a child in the most modest way costs an additional £25 a week per child. That factor is recognised in the scales paid to foster parents. According to the age of the child the amount paid ranges from £45 a week to upwards of £80 a week for older, teenage children. The cost of a child is also recognised in the estimates made by the Child Support Agency for child maintenance of £40, £50 or £60 a week.
The cost of a child is even recognised within that most minimal of calculations, income support, where child allowance is worth between £16 and £36 a week, from which child benefit is deducted according to the age of the child. It is recognised in foster parent payments, through the Child Support Agency and in income support that children are costly; yet in this benefit no such recognition is made. No such allowance is built in until a disabled person has survived 12 months on lower rates of benefit. As a result, between the sixth month and the twelfth month incapacity benefit will be paid at the same rate where the family has one toddler or three teenage children. The only difference is that the family receives extra child benefit of £10 for the first child, and £8 for subsequent children. How can one bring a child up on £8 a week? We know that one cannot. That is why we seek support for this very modest fallback amendment which says that where there are families with children the higher rate of benefit should be paid from the sixth month as opposed to the twelfth, thus doubling from £10 to £20 a week the amount on which one brings up a child.
Children with a disabled parent already live in a family that is stressed. The parent is often in pain,

1455
unable to take walks, play football or engage in the activities that most families enjoy together. Disabled families already face higher outgoings for diet, laundry, food and heating. Let us not press those disabled families even further into poverty by denying the very existence of their children in the way that this benefit is constructed.
We narrowly lost the amendment which would have brought all people forward for receipt of higher benefit at six months. At the very least let us protect those families with children. We support the amendment.
Earl Russell: My Lords, if I may anticipate the argument of the noble Lord, Lord Boyd-Carpenter, I believe that he was about to raise the issue of cost. If so, he is quite right to do so. I entirely agree about the need to consider costs. However, the noble Lord will agree that if we are to consider costs we must take into full account the unintended consequence and the spin-off. We must consider costs in a full way.
We are proposing to leave children short of income. I was not privileged to hear the noble Lord, Lord Joseph, make his original speech on the cycle of deprivation. When he initiated a debate on the family, I think in 1991, I was privileged to hear him repeat some of those arguments. As always, I did not agree with every conclusion that the noble Lord drew, but, as always, I could not listen to him without being compelled to think.
If we deprive children, we create problems for the next generation, the generation after that, and perhaps even beyond. For a small saving we may be creating costs which continue from generation to generation. That does not sound to me like a prudent way to handle public money. Perhaps the Government consider that they will be out of office by then and that it will be nothing to do with them. If so, I hope that this House, which is fair minded, will take a more enlarged view of the matter and will support the amendment.
Lord Milverton: My Lords, I support the amendment to which I have put my name. I believe that it is a right, good and proper amendment. I leave the figures and other arguments to others. As the noble Earl, Lord Russell, said, the amendment specifically concerns children. As he said, our children are the future generation. How they have been treated, cared for and looked after while children will reflect on the country when they are older. I urge Her Majesty's Government to accept the amendment.
If the Government defeat the amendment, they will have to find resources from somewhere to help those in need. As has been said, in the long run the amendment represents a sensible policy. To make provision in any other way would not be sensible and might cost far more. Therefore nobly, rightly and properly, the amendment should be supported. It is a pity that there are not more Peers in the Chamber. If more Peers had been present my noble friend Lord Swinfen might have won his amendment. The honour of the House depends a lot on how many Peers are in the Chamber when important amendments are being discussed. Far more Peers should be present when certain amendments are discussed, and I do my best to attend. I hope that Her
1456
Majesty's Government will have some sense; otherwise I hope that my noble friend Lord Swinfen will be successful.
4.30 p.m.
Lord Boyd-Carpenter: My Lords, with his usual percipience, the noble Earl, Lord Russell, suspected, what point I would raise and, as so often, he is right. I. ask the Minister to tell us what the cost of the amendment would be to public funds and to the social security system by way of benefits, and the overall cost of administration.
I hope that the noble Earl does not think it unworthy to ask that. In truth and in fact, if he had been involved as long as I was in the administration of social security, he would know that every decision taken by a responsible Minister in charge of social security must be taken in the light of its cost. In my time, many delightful proposals would have been extremely popular but, frankly, they were too expensive. For that reason, they had either to be watered down or put in their place and phased in later.
It is always the fact that when your Lordships' House, another place or the Government consider any social measure, we consider its merits, its sentimental aspects and such matters as the possible effect on children. Then we must weigh against that the cost to the taxpayer or the national insurance contributor, or both. Therefore, because he is such an effective debater that he can easily make the worst case appear the better, I beg the noble Earl in future not to take the view that to ascertain the costs of a proposal is somehow unworthy. On the contrary, I suggest that it is utterly irresponsible for a Minister of any kind to advocate further expenditure unless he has worked out fully what the expenditure would be, how much it would cost and how it would be possible to fit the cost into his departmental budget or the Treasury accounts.
Therefore, I shall keep an open mind on the amendment until I have heard the cost. I hope that, in his usual efficient way, the Minister will tell us the full costs of the proposal.
Lord Zouche of Haryngworth: My Lords, wish to add my support for the amendment of my noble friend Lord Swinfen. One of the fundamental flaws of the Bill is that those who will be hardest hit will be families with children. The more children, the more benefit entitlement a family has to lose between the period of 29 weeks and one year. That is surely a situation we need to avoid.
The amendment will maintain the present position, at least for children. I believe that that is important for all children, but one group of families which has been particularly brought to my attention is where there is a disabled child. They will be particularly hard hit. Research published at the end of April by the NCH Action for Children shows that nearly two in three families with disabled children find that they are not managing well financially. More than four in five have extra costs because of their child's disability and say that those costs are not met in full by the benefit.

1457
Although a disabled child is entitled to benefit in its own right, the evidence shows that the family budget is used to meet many of the additional costs. One in 10 families said that they had gone into debt in order to meet those additional costs. So, for a family with a disabled child and a breadwinner who becomes incapable of work, life becomes financially very difficult indeed. The emotional stress of the breadwinner becoming ill or disabled so that he or she cannot work will be compounded by the financial stress. It is only right that we do all we can to protect the children in that situation. Is there not perhaps a special case for a family with a disabled child or children? I urge the Government to accept the amendment because 1994 is the Year of the Family and this is essentially a measure that will help families in time of great hardship.
Baroness Darcy (de Knayth): My Lords, perhaps I may add a word of support for the amendment. In his masterly introduction of it, the noble Lord, Lord Swinfen, quoted Keith Joseph's comments on the strain that chronic sickness puts on the standard of living of a family containing children. I remember Alf Morris saying, probably in 1970 at the time of the passing of the Chronically Sick and Disabled Persons Act, that when one member of a family becomes disabled, the whole family becomes disabled. I warmly support the amendment which would take some strain off the family, with the problems which can stem from disablement, as the noble Earl, Lord Russell, said. In the end, the problems can cost much more, not only in human but in financial terms.
The Lord Bishop of Coventry: My Lords, the noble Lord, Lord Boyd-Carpenter, asked us to consider the cost of the amendment to the taxpayer. I am glad that other voices have been raised to ask Her Majesty's Government to consider more deeply the human cost, the social cost or—if it were a matter of self interest —even the cost to the Government in people's attitudes and disposition towards the Government in the places from which we come. I can tell the Government that many people working with the sick, working in institutions, those involved in the experience which has been described of caring for the sick, and those who seek benefit, have assured me strongly that the amendments we are considering today will have a sharper and deeper effect on some of the poorest and most vulnerable people in our community than almost anything we have discussed in the House for a long time.
I am deeply concerned that we should accept the amendment and do all that we can to modify the Bill to protect those who will be damaged by it.
Baroness Masham of Ilton: My Lords, on Thursday we shall discuss juvenile prisons for 10 to 14 year-old children. I ask noble Lords to think for a minute that some of the children about whom we are talking under this amendment may be put at risk. They may end up in prisons because of the pressure put on families where parents are unable to work. As the right reverend Prelate said, we need to consider all the social problems which
1458
go much deeper than the mere cost. I too will be interested to hear how much the amendment would cost. It is extraordinary that the Government do not have the information at hand when they are trying to draw up a budget.
Viscount Astor: My Lords, I am delighted to tell the noble Baroness that I have exactly that information to hand and have had it for all the amendments moved in your Lordships' House as the Bill has gone through. Perhaps I should answer straight away that the cost of the amendment would be £5 million a year. But, of course, there is no estimate of administrative costs as the proposal would be expensive to administer, bringing one of the increases in benefit out of line with all the others.
It is important that although we establish the cost we should ascertain whether there are sound reasons for the amendment. My noble friend and the noble Baroness, Lady Hollis, seemed to want the amendment to succeed as a consolation prize for losing the Division on an earlier amendment. The noble Baroness appeared to suggest that because on the last amendment the vote was close, that was a good basis for this amendment to be accepted. I do not think that that is a sound basis for good argument, good judgment or good government.
The right reverend Prelate said that people will be damaged. I hope to explain to him that such will not be the case and to deal with his concern. As I explained in Committee, it is the Government's intention that these increases should not be paid with incapacity benefit until 52 weeks of incapacity have elapsed except in cases where the beneficiary is over pension age or terminally ill. Our proposals simply follow the long-standing arrangement whereby increases for children are not paid with short-term benefits unless the beneficiary is over pensionable age. Currently, the period for which short-term benefit is paid is 28 weeks. In future, the short-term benefit will be paid for 52 weeks. It follows that child dependency increases for people under pensionable age should be available from that 52-week point also. If they became payable after 28 weeks, as proposed, the structure of dependency increases and that of the new benefit would be out of step.
Noble Lords have expressed concern that the new benefit will, in some cases, be paid at lower rate than income support before the 52-week point is reached and that this will lead to increased reliance on that benefit. It must be remembered that incapacity benefit is a non-means-tested contributory benefit. It has no regard to savings, occupational pensions or other income.
My noble friend Lord Swinfen asked what happens to people if they are not eligible for income support. Those people who are not eligible for income support, because they have other means, do not need income support.
It would be an irresponsible government who raised the levels of a non-means-tested contributory benefit to the extent that everyone on the contributory benefit was better off than on the means-tested benefit. If we wished to ensure that income support was never needed during periods of incapacity, we would need to increase the contributory benefit by an enormous margin. Successive

1459
governments have never seen that as a practical proposition, particularly as those who have resources of their own and are in least need would benefit the most.
Incapacity benefit will provide a basic level of income paid regardless of means to those who are incapable of work. Over 75 per cent. of people between the 28th and 52nd week of incapacity will not need income support because they will have additional resources such as occupational pensions and savings. Equally, there will be a proportion who will claim income support. Under the current arrangements many families on invalidity benefit have cause to rely on the additional help provided by that benefit for a variety of reasons. The fact that in future more families with children may qualify for income support is not a reason for paying CDIs (child dependency increases) in all cases before the 52nd week of incapacity.
Child poverty is not the issue. Child benefit forms the major plank of state help for bringing up children. Where the person is working, earnings will supplement child benefit. But when earnings are interrupted for a length of time, we recognise the need for extra help. For short-term contingencies, we maintain that it is right that claimants should look first to their own resources or, if necessary, to the income-related benefits. However, for long-term contingencies, child dependency increases will be available.
The fact is that the income-related benefits provide a much more effective means of helping families who are in financial need as a result of short-term incapacity than would child dependency increases. That is reinforced by the fact that we have used these benefits very successfully in recent years to target additional resources on families in need. Since 1988, significant extra help has been made available for this group, now amounting to some £1 billion a year. Cash benefits for poorer families are now among the highest in the EC.
My noble friend Lord Zouche suggested that the new arrangements will have a particularly damaging effect on families where there is a disabled child. But invalidity benefit and, the child dependency increases that are payable with it have never been designed to meet the extra costs arising out of disability. Specific benefits exist for that purpose. Since taking office we have in real terms more than trebled spending on benefits for disabled people.
The rates of child dependency increases that will be paid with incapacity benefit compare unfavourably with the applicable amounts for children in the income-related benefits. In fact, the child dependency increase rates compare well with their equivalents in income support. Currently, CDIs of invalidity benefit are paid at the rate of £9.80 in the case if the eldest eligible child and £11 for other children. These rates are paid on top of child benefit, providing an overall level of support of £20 and £19.25 respectively. In income support, the applicable amount for a child aged under 11 is £15.65, but child benefit is deducted from that amount, making the overall level of support less than for a child of the same age for whom a CDI is payable. In the case of children over 11, the balance shifts and income support becomes the more generous benefit. However, those
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comparisons show that child dependency increases, when viewed correctly as a supplement to child benefit, provide a very reasonable level of support for children.
Unlike the income support scheme, it would be inappropriate to provide a range of different child dependency increase rates tied to the age of the child. Such precise targeting would be out of place in the context of a contributory benefit, which is only designed to provide a broad measure of support.
My noble friend Lord Boyd-Carpenter told your Lordships that we have to weigh the consequences, the costs and the benefits of the amendment. I believe that this amendment should not be accepted for the very good reasons that I have given. I hope that my noble friend will be satisfied with my explanation and will feel able to withdraw the amendment.
4.45 p.m.
The Countess of Mar: My Lords, before the noble Viscount sits down, can he tell the House what evidence he has to substantiate his statement. that the vast majority of people have alternative savings or pensions? Is it not the case that a great deal of research shows that the highest incidence of illness occurs among low paid and poorly housed people—people with very little money? Many of those people are also shown to have huge debt problems. Can the noble Viscount say whether it is definite that the vast majority of the people who are certificated as being ill will have alternative incomes?
Viscount Astor: My Lords, my point was that if they do not have alternative incomes, they may well qualify for means-tested income support. Therefore they are supported by the state on that basis.
Baroness Hollis of Heigham: My Lords, before the noble Viscount sit down, will he confirm a figure that he gave in a previous debate to the effect that only 38 per cent. of the disabled have occupational pensions and the rest have to go elsewhere, either to savings or income support? That is my first question.
So that we get this matter into proportion, will he also confirm that the figures for a disabled man with a wife and three children (say, 14, 12 and 10 years-old) who is now on invalidity benefit has a total net income of £162.75, to be precise? That is what the family gets on invalidity benefit now. On income support now, that same family gets just under £145 a week. But in future, with incapacity benefit, that same family will get £106 a week. So they would drop from £163 to £106 a week. How can the noble Viscount justify that?
Viscount Astor: My Lords, the noble Baroness seeks to bandy figures with me.
Baroness Hollis of Heigham: My Lords, I take exception to that remark.
Viscount Astor: I do not know whether or not the noble Baroness's figures are correct. Off the top of my head I cannot say that her figures are, or are not, correct. I do not know. The noble Baroness did not raise this matter in her speech and we are at Report stage. She can stand up and ask me a question before I sit down but I

1461
must say that the question did not seem to relate to what I said earlier. She also asked whether the figure that I used in Committee was correct. I do not have in front of me at this very moment the Hansard which records the figures I gave in Committee. I shall certainly look to see whether those figures are correct. I am sure that they are.
Lord Swinfen: My Lords, I do not want to argue about figures because I am not very good at them. However, because someone does not qualify for income support it does not mean that they will not suffer hardship. They may have nothing in savings but be one penny over the income support weekly amount limit and therefore not qualify. I realise that there must be cut-off points. However, I would much rather that they were tapered.
It is extremely important that families with children should have their income sustained, as my amendment requires, because they are extremely vulnerable at a time when someone is incapable of work. It affects the family as a whole, including the children whose school work may be affected by the worry. The amendment will help to alleviate that problem. It will help those children to go on to be properly qualified and to generate income for the country later. I do not accept the arguments of my noble friend. I must therefore ask the opinion of the House.
4.51 p.m.
On Question, Whether the said amendment (No. 6) shall be agreed to?
Their Lordships divided: Contents, 133; Not-Contents, 127.

Division No. 2

CONTENTS

Addington, L.

Desai, L.

Airedale, L.

Donaldson of Kingsbridge, L.

Allen of Abbeydale, L.

Dormand of Easington, L.

Allenby of Megiddo, V.

Eatwell, L.

Archer of Sandwell, L.

Elis-Thomas, L.

Ashley of Stoke, L.

Ennals, L.

Attlee, E.

Ewing of Kirkford, L.

Avebury, L.

Falkland, V.

Baldwin of Bewdley, E.

Fitt, L.

Bancroft, L.

Foot, L.

Barnett, L.

Gallacher, L.

Bath, M.

Geraint, L.

Beaumont of Whitley, L.

Glenamara, L.

Beloff, L.

Gould of Potternewton, B.

Blackstone, B.

Graham of Edmonton, L.

Bottomley, L.

Greene of Harrow Weald, L.

Brimelow, L.

Gregson, L.

Broadbridge, L.

Grey, E.

Brooks of Tremorfa, L.

Halsbury, E.

Campbell of Eskan, L.

Hanworth, V.

Carmichael of Kelvingrove, L.

Harding of Petherton, L.

Carter, L.

Harris of Greenwich, L.

Castle of Blackburn, B.

Haskel, L.

Chatteris of Amisfield, L.

Healey, L.

Chichester, Bp.

Hilton of Eggardon, B.

Cledwyn of Penrhos, L.

Hollick, L.

Clinton-Davis, L.

Hollis of Heigham, B.

Cocks of Hartcliffe, L.

Hooson, L.

Cornwallis, L.

Howell, L.

Coventry, Bp.

Hughes, L.

Cox, B.

Hunt, L.

Darcy (de Knayth), B.

Hylton-Foster, B.

David, B.

Jacques, L.

Dean of Beswick, L.

Jay of Paddington, B.

Dean of Thomton-le-Fylde, B.

Jeger, B.

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Jenkins of Hillhead, L.

Prys-Davies, L.

Judd, L.

Rea, L.

Kennet, L.

Richard, L.

Kilbracken, L.

Rix, L.

Kinloss, Ly.

Rochester, L.

Lawrence, L.

Russell, E.

Listowel, E.

Sainsbury, L.

Llewelyn-Davies of Hastoe, B.

Sefton of Garston, L.

Lockwood, B.

Serota, B.

Lovell-Davis, L.

Soper, L.

Mackie of Benshie, L.

Stedman, B.

Mallalieu, B.

Stoddart of Swindon, L.

Mar, C.

Strabolgi, L.

Masham of Ilton, B.

Swinfen, L. [Teller.]

Mason of Barnsley, L.

Thomson of Monifieth, L.

McCarthy, L.

Thurso, V.

McIntosh of Haringey, L.

Tonypandy, V.

Merlyn-Rees, L.

Tordoff, L.

Milner of Leeds, L.

Turner of Camden, B.

Milverton, L.

Wallace of Coslany, L.

Mishcon, L.

Weatherill, L.

Molloy, L.

Whaddon, L.

Monkswell, L.

Wharton, B.

Mulley, L.

White, B.

Murray of Epping Forest, L.

Wigoder, L.

Nathan, L.

Williams of Crosby, B.

Nicol, B.

Williams of Elvel, L.

Ogmore, L.

Williams of Mostyn, L.

Palmer, L.

Winchilsea and Nottingham, E.

Pearson of Rannoch, L.

Wise, L.

Peston, L.

Zouche of Haryngworth, L.

Pitt of Hampstead, L.

[Teller.]

NOT-CONTENTS

Addison, V.

Goschen, V.

Alexander of Tunis, E.

Granard, E.

Annaly, L.

Gray of Contin, L.

Archer of Weston-Super-Mare, L.

Gridley, L.

Arran, E.

Grimston of Westbury, L.

Astor of Hever, L.

Haig, E.

Astor, V.

Harrowby, E.

Balfour, E.

Haslam, L.

Barber of Tewkesbury, L.

Hayhoe, L.

Belhaven and Stenton, L.

Henley, L.

Blake, L.

Hesketh, L.

Blatch, B.

Hives, L.

Borthwick, L.

Holderness, L.

Boyd-Carpenter, L.

Hood, V.

Brabazon of Tara, L.

Hooper, B.

Braine of Wheatley, L.

Howe, E.

Brougham and Vaux, L.

Kenyon, L.

Bruntisfield, L.

Kimball, L.

Buckinghamshire, E.

King of Wartnaby, L.

Burnham, L.

Knollys, V.

Carnock, L.

Knutsford, V.

Chalker of Wallasey, B.

Lauderdale, E.

Chelmsford, V.

Long, V. [Teller.]

Chesham, L.

Lucas, L.

Clark of Kempston, L.

Lyell, L.

Colwyn, L.

Mackay of Ardbrecknish, L.

Constantine of Stanmore, L.

Mancroft, L.

Cork and Orrery, E.

Marsh, L.

Courtown, E.

Merrivale, L.

Cranborne, V.

Mersey, V.

Cumberlege, B,

Miller of Hendon, B.

Davidson, V.

Morris, L.

Denham, L.

Mountevans, L.

Dixon-Smith, L.

Mowbray and Stourton, L.

Donegall, M.

Moyne, L.

Dormer, L.

Munster, E.

Eccles of Moulton, B.

Murton of Lindisfarne, L.

Eden of Winton, L.

Nelson of Stafford, L.

Ellenborough, L.

Onslow, E.

Elles, B.

Oppenheim-Barnes, B.

Elton, L.

Orkney, E.

Ferrers, E.

Orr-Ewing, L.

Flather, B.

Oxfuird, V.

Foley, L.

Peel, E.

Geddes, L.

Pender, L.

Gisborough, L.

Peyton of Yeovil, L.

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Pike, B.

Strathclyde, L.

Prentice, L.

Strathcona and Mount Royal, L.

Pym, L,

Strathmore and Kinghorne, E.

Rankeillour, L.

[Teller.]

Rawlinson of Ewell, L.

Sudeley, L.

Reay, L.

Swansea, L.

Rippon of Hexham, L.

Tebbit, L.

Rodger of Earlsferry, L.

Thomas of Gwydir, L.

Romney, E.

Tollemache, L.

Seccombe, B.

Trefgarne, L.

Selkirk, E.

Trumpington, B.

Sempill, Ly.

Vaux of Harrowden, L.

Skelmersdale, L.

Vivian, L.

St Davids, V.

Wade of Chorlton, L.

Stewartby, L.

Wakeham, L. [Lord Privy Seal.]

Stodart of Leaston, L.

Whitelaw, V.

Strange, B.

Wynford, L.

Strathcarron, L.

Young, B.

Resolved in the affirmative, and amendment agreed to accordingly.
5 p.m.
Clause 3 [Incapacity benefit: supplementary provisions]:
Viscount Astor Viscount Astor moved Amendment No. 7:
Page 5, line 19, leave out (", in such cases as may be prescribed,").
The noble Viscount said: My Lords, in moving this amendment perhaps I may speak also to Amendments Nos. 18 and 32. These three amendments are of a technical nature and deal with three regulation-making powers. These powers allow modification of what constitutes a spell or period of incapacity for work.
Generally a spell or period of incapacity would arise only where a person has four or more consecutive days of incapacity for work. These three powers allow a period of two or more days, whether consecutive or not, within a period of seven consecutive days to form a spell or period of incapacity for work. Regulations made under these powers cater for people who require regular treatment for their condition but are absent from work for only two or three days each time; for example, someone undergoing renal dialysis. The superfluous wording being removed is,
"in such cases as may be prescribed".
This wording was intended to allow the regulations to be focused specifically on the relevant group of people.
However, if I may refer noble Lords to another part of the Social Security Contributions and Benefits Act 1992., Section 175(3) states that,
"any power under this Act to make regulations … may be exercised … in relation to any specified cases or classes of case".
Noble Lords will see therefore that the wording used in each of these powers is unnecessary. With that explanation I hope the House will accept the amendment. I beg to move.
On Question, amendment agreed to.
Viscount Astor Viscount Astor moved Amendment No. 8:
Page 6, line 22, at end insert ("or training of such other description as may be prescribed").
The noble Viscount said: My Lords, in moving this amendment perhaps I may speak also to Amendments Nos. 28, 30 and 33. As your Lordships may recall from our discussions during the Committee stage of the Bill, concern was expressed over the scope of the—
Lord Carter: My Lords, Amendment No. 8 is grouped with Amendment No. 32, not Amendment No. 33.
Viscount Astor: My Lords, the noble Lord is quite correct. As I said, noble Lords may recall from our discussions during the Committee stage that concern was expressed over the scope of the long training linking rule introduced as part of the incapacity benefit structure. I said then that we were looking at this issue again and undertook to try to respond by Report stage on the outcome. I can now inform noble Lords that we have completed our deliberations and I am pleased to be bringing forward these four amendments which give effect to the changes we propose.
As noble Lords may already be aware, this training linking rule is intended to provide an incentive for people receiving incapacity benefit or severe disablement allowance to try to make a return to work. The training linking rule provides the safeguard that if their attempt fails because of their incapacity they can return to the same benefit they were previously receiving within two years. Additionally, it protects the position of those people who are assessed as callable of work and begin, or are already undertaking, a training course. if their condition deteriorates again within two years, these people could also return to their previous benefit.
To set these amendments in context I should perhaps explain what will happen when a person receiving incapacity benefit undertakes a course of training. As with the existing incapacity benefits, if attendance on a training course attracts a training allowance, payment of incapacity benefit will cease. However. where a person undertakes a course of training and a training allowance is not payable, his incapacity benefit will remain in payment so long as he continues to satisfy the test of incapacity for work. If at any stage during the person's course of training he was assessed as no longer satisfying the test of incapacity, as one would reasonably expect, his benefit would cease. These rules will, as now, apply equally to severe disablement allowance.
Anyone undertaking a non-employment department course who continues to be incapable of work will have no need for the linking rule—their benefit will continue in payment. However, the amendments I am bringing forward will benefit those people who on undertaking a course of training fail the test of incapacity and those who begin a training course on leaving benefit. The amendments will ensure that where training for work is specified in the Bill it will include,
"training of such other description as may be prescribed".
This will apply to the long linking rule on both incapacity benefit and severe disablement allowance. The other two amendments relate to incapacity benefit. The final amendment relates to severe disablement allowance. The broader definition will also apply to the new qualifying benefit rule on disability working allowance. This is the rule which allows a person to undertake a period of training between leaving his qualifying benefit and making his claim to disability working allowance.

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We feel it is essential to use regulations for this provision. I am sure noble Lords will agree that training provision has changed dramatically over the past 20 years and will no doubt continue to do so in the future. It is important therefore that the legislation is sufficiently flexible to allow us to keep it up to date when any relevant new initiatives arise.
We have not as yet finalised the drafting of regulations that are to be made under these powers but I can tell the House what we intend that they should cover. Regulations will specify both additional Employment Department programmes and the types of non-government training courses that should be covered. We expect three Employment Department programmes to be included: Employment Rehabilitation; Community Action; and North Norfolk Action—similar to Community Action. With non-government training we are intending to include full-time courses the sole or main purpose of which is the acquisition of occupational or vocational skills (full-time being defined as 16 hours or more). The issue of funding through the European Social Fund was raised during Committee. I can assure the House that where the sole or main purpose of the course funded by the European Social Fund is the acquisition of occupational or vocational skills these courses would be covered.
I hope that these changes will be welcomed. I apologise for the rather complicated explanation of them but I thought it important that your Lordships should understand the changes that we have made. I beg to move.
Lord Campbell of Croy: My Lords, it was I who moved the amendment at the Committee stage concerning the European Social Fund. At that time it looked as though training courses which were being financed by the fund would not be eligible. I was glad to hear what my noble friend has just said. It would be churlish of me not to say thank you, having made that point.
On Question, amendment agreed to.
Viscount Astor Viscount Astor moved Amendments Nos. 9 and 10:
Page 6, line 31, leave out ("and").
Page 6, line 34, at end insert (", and
(d) section 30B(4A) (construction of references to
short-term incapacity benefit at the higher rate),").
The noble Viscount said: My Lords, we debated these amendments with Amendment No. 2. I beg to move.
On Question, amendments agreed to.
Clause 4 [Power to provide for the transition to incapacity benefit]:
Viscount Astor Viscount Astor moved Amendment No. 11:
Page 9, line 26, at end insert:
("( ) Regulations under this section may provide, in relation to transitional cases where the rate of incapacity benefit falls to be calculated by reference to the rate of dependency allowance paid or payable before commencement, that any old saving provisions shall have effect subject to the regulations or shall cease to have effect in accordance with the regulations.
For the purposes of this subsection—

"dependency allowance" means an allowance of the kind provided for in Part IV of the Social Security Contributions and Benefits Act 1992, and

1466

"old saving provisions" means provisions of any description, including administrative provisions, in connection with a previous change affecting entitlement to or the amount of dependency allowances, preserving a person's position in any respect.").

The noble Viscount said: My Lords, this amendment will provide for regulations to be made which will enable existing forms of transitional protection for dependency increases of invalidity benefit to be rationalised from April 1995. The objective is to align these old provisions with new forms of protection that we intend to create at the inception of incapacity benefit. I should say at the outset that acceptance of this amendment will not lead to cash losses for those whose circumstances remain unchanged.
During the 1970s and 1980s the structure of dependency increases changed in a number of ways. I need not detain your Lordships with a detailed account of those changes; suffice to say that one of the results was the creation of six separate forms of transitional protection. Although the numbers of beneficiaries involved are very small, these forms of protection do not operate on a uniform basis, and it seems sensible, therefore, to use the opportunity presented by incapacity benefit to place them on the same footing.
The key difference between these forms of protection is that some operate on the basis of an ongoing entitlement to a dependency increase but others are linked to the continuation of payment. One might expect these terms to be synonymous, but the courts have made it clear that there is an important difference. Payment of a dependency increase may cease for a variety of reasons, but where cessation is due to receipt of earnings in excess of a prescribed limit or a personal benefit, entitlement to the increase can continue. The result is that for some beneficiaries protection can be reactivated despite the fact that payment of the increase may have ceased many years before. We think this somewhat bizarre effect is difficult to defend.
By contrast, in the case of the other forms of protection that would be affected by this amendment, protection is lost if payment of the increase ceases for just one day. This can produce harsh effects. While payment of a Christmas bonus or even a few hours' overtime would ordinarily lead to just a brief pause in payment of the increase, in these cases it can lead to permanent cessation of protection.
We propose that all these existing forms of protection will continue on the basis of new rules. These rules were initially developed with the transition to incapacity benefit in mind, but we think it entirely logical to apply them to these old forms of protection too. The new rules will mean more favourable treatment for some beneficiaries and less advantageous treatment of others when compared with the current arrangements. However, no one will experience any losses at the point of change, and since the normal linking rules of eight weeks or two years for disability working allowance or training for work cases will apply, the disadvantage will be no more than theoretical in the vast majority of cases.
Finally, I should mention a further proposed change. One existing form of transitional protection relates to the introduction in 1985 of the current earnings rule for adult dependency increases of invalidity benefit. The

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current rule operates on an all-or-nothing basis, with payment ceasing when earnings exceed a prescribed limit. By contrast, the old rule provides for tapered withdrawal of the increase. So when the dependency increase itself is uprated each year the amount of earnings necessary to extinguish it also rises. We think this is illogical because rather than merely preserving the position of those affected by the change back in 1985, this form of protection has actually increased in generosity over time and will continue to do so at each subsequent uprating. We therefore propose that an overriding limit is placed on this form of protection which equates to the point at which protection currently ceases. When earnings exceed this limit for more than eight weeks, protection will be lost. This will preserve the existing advantage conferred by this form of protection but will not add further to it.
I hope that your Lordships will agree that these proposals are both logical and reasonable and will feel able to support my amendment. I beg to move.
On Question, amendment agreed to.
Clause 5 [Test of incapacity for work]:
Lord Carter moved Amendment No. 12:
Page 10, line 2, at end insert:
("Code of Practice
171ZA—(1) Before laying before either House of Parliament a draft instrument containing the first of the regulations to be made under sections 171 A to 171 G below, the Secretary of State shall lay before Parliament a draft Code of Practice setting out how he intends to proceed with the matters covered by the regulations to be made under each of those provisions.
(2) The draft Code of Practice laid under subsection (1) above shall, in particular, set out how the Secretary of State intends, in preparing any of the medical tests to be established by the provisions listed in subsection (1) above, to take account of—

(a) non-medical factors including an applicant's age, education, experience and training;

(b) the applicant's general state of physical and mental health and the intermittent nature of illness;

(c) personal factors, including the likelihood of an applicant obtaining work, his capacity to deal with pain and stress, and his capacity to work more than 16 hours per week; and

(d) the subjective nature of mental illness.

(3) Before laying the draft Code of Practice under subsection (1) above, the Secretary of State shall consult representatives of the medical profession and of groups representing disabled people, and such other persons as seem to him to be appropriate.
(4) The Secretary of State shall not proceed to lay any regulations under any of the provisions listed in subsection (1) above until—

(a) forty days on which both Houses have sat have passed since the laying of the draft Code of Practice under subsection (1) above, and

(b) the draft Code of Practice has been approved by a Resolution of each House of Parliament.").

The noble Lord said: My Lords, this amendment introduces a subject which we did not discuss in Committee. It is an attempt to deal with a problem which we certainly discussed at some length in Committee, in that this Bill, as we know, gives the Government the power to introduce by regulation matters to deal with the medical test. But the House will of course have no chance to discuss the thinking behind the regulations. The assessment will not be completed until August, I believe, and the regulations will be brought in. As we know, they cannot be amended; they can either be accepted or rejected. When the Minister replies I hope that we do not get the argument that this
1468
House can always reject the amendment. That is not the point. We want to have the chance to discuss these very detailed matters to do with the extremely important medical test. I am sure that everyone will be aware of the anxiety which there is about the way in which the test will be implemented.
The effect of the amendment is that no regulations to do with any of the test can be laid, even in draft, until consultation has taken place—I emphasise that—and a draft code of practice has been laid before and approved by each House of Parliament. I shall go through the amendment, but not at length. It contains all the points which we wish to be considered—all the factors which have to be taken into account, including the non-medical factors, the applicant's general state of physical and mental health and the intermittent nature of illness—all subjects which we discussed in Committee.
This is an attempt to get round the rigidity of the approach by regulation and to introduce flexibility of approach by code of practice. As I have said, we all know the problem with regulations: they cannot be amended and the only power we have is to reject them. It seems to me that this is the proper way to deal with this case. I hope that the 'Government will accept the strength of the argument.
We all want to see, as the Government do, the test working properly. We had the very useful presentation by the medical advisers which was made to a number of us before we came to Committee stage. From that presentation we can all agree just how complicated the matter will be. We believe it right that Parliament should have the chance to discuss the way in which the test will be conducted and the rationale behind it, with the chance, if necessary, to amend the code of practice.
Perhaps I may quote from a very helpful letter which the Minister sent me. It was addressed to the noble Earl, Lord Russell, and I was kindly sent a copy. his about carers and incapacity benefit. In fact, it can be adapted to anyone who has to go through the test. The letter reads:
"Because the test is focused towards work, the assessment will take into account the fact that a person capable of work must be able to repeat activities over a period of time … If pain, fatigue or stress accompany or are consequent on a particular activity, then the person is effectively incapable of performing the activity. We shall continue to develop the test on this basis, and the training and guidance to BAMS doctors will make clear that pain, fatigue and stress, and conditions subject to variation, fluctuation, remission and exacerbation of their symptoms and signs are taken fully into account in assessing capacity".
I have quoted that letter to show the number of factors which will have to introduced and covered by these regulations. Therefore it is extremely important that we have the chance, as I say, through the code of practice approach to discuss these matters in some detail, if necessary, to amend them and to require the approval of both Houses if these important medical tests are to be accepted with a proper code of practice.
The amendment also deals with an important point which is set out in subsection (3):
"Before laying the draft Code of Practice under subsection (1) above, the Secretary of State shall consult representatives of the medical profession and of groups representing disabled people, and such other persons as seem to him to be appropriate".
That gives the Government wide discretion, but when the code of practice comes back to both Houses, it will

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enable Parliament to be told what is the nature of the consultation which has taken place and the representations which have been received. That is much more flexible than the approach through regulations.
I believe that a code of practice is a very useful device in the circumstances of this Bill when there will be a gap between the Bill, if it receives Royal Assent, and the ending of the assessment period. Then we shall see the regulations with no chance of amending them.
The amendment has been widely drafted. I am prepared to accept that the Government may wish to take it away and redraft it. It is the principle which we wish to establish at this stage of the Bill. I shall be extremely interested to hear whether the Minister feels that this is a useful way to get round a problem which the Government recognise as much as we do. I hope that this amendment is helpful in that sense. I beg to move.
5.15 p.m.
Earl Russell: My Lords, I congratulate the noble Lord, Lord Carter, on an ingenious and extremely helpful amendment. I believe that it is no secret that, for me, the medical test as it stands at present is entirely unacceptable. I believe that any chance of it sorting the sheep from the goats is very remote indeed. In fact, the connection between not passing the test and unfitness for work will be purely coincidental.
I am not dividing the House against Clause 5 because we have been told, to my great relief, that the test in its present form is not final. It would be contrary to the spirit of this House to try to vote down the power while, I hope, attempts are still being made to reach a consensus. But at some stage the House must have the power to say that this is not acceptable.
When we were in Committee the Minister tried to argue that the House should not concern itself with the details of the test. The Minister said exactly that. I do not have the reference to hand, but I shall write to the Minister with it if he likes.
It has been suggested that we should leave the details of the test to the experts. But the alleged panel of experts is not by any means entirely happy with what is going on. In fact some of them have written to us to say that the full panel of 80 has not met on any occasion and that many of them have exactly the same complaints as we have. In fact they are not satisfied with it either.
I was very grateful to the Minister for sending me a copy of his letter to the noble Lord, Lord McColl. But I was very disappointed to hear him once again repeating the formula that age is not a disability. I thought that we had made it clear that we were not alleging that it was. But it does make a difference to what sort of work you are suited for. If that is not taken into account, the test will not be testing suitability for work. It will not be testing suitability for any work which, if fit, you could have done.
I have received a letter from the Chair of the North London M.E. Network which makes a number of those points extremely well. Ms. Muller points out that,
"M.E., like M.S. and other illnesses is a fluctuating condition".
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Although I know that the Minister thinks that it is going to be possible for Benefits Agency medical service doctors with the aid of one letter from a claimant's GP to assess a fluctuating condition, it is something about which I have a good many doubts. Ms. Muller also points out, as we have been saying from the beginning, that the test is,
"inappropriate for assessing illness, as it is a functional assessment of disability".
It seems inherent in the choice of a functional impairment test to assess illness and disability together. I think that that decision was fundamentally misguided. In addition, it seems entirely misguided to attempt to assess mental health by asking people to fill in a form.
We have in this allegedly "objective" test—of course, it is no such thing—a sickness which is extremely widespread throughout government. I should like to quote from a document which reached me this afternoon. The report in question states:
"The major concerns … are over the policy of making judgements on … documentation; on the criteria in use, … and on the usefulness of the ensuing reports".
That sounds familiar. It comes from a report carried out for the Higher Education Funding Councils for England and for Wales on the assessment of university teaching. It shows the same sickness.
If the tests are to be in any way acceptable, we must increase the medical input and decrease the allegedly objective element. How then can this House satisfy itself, before allowing the tests to be passed into law, that they are all right? We cannot do it now because the work is not finished. There are many procedural devices that we can use, but if we are to do it, we need a procedure under which all parties in this House will be happy to go through the Lobby. If we do not have that, we shall have what we have had already with the Child Support Act: this House vilified outside because it has agreed to something which, with proper scrutiny, it should never have accepted. That will not do us any good any more than it will do the country any good. If the amendment will allow us to reach a vote on the test, it will also encourage a process of consultation. I do not think that it is right that a test of medical unfitness should be acceptable to only one side of the House. If we want to assess medical fitness, we should be looking for something which is, at least in a rudimentary way, acceptable to people of all political persuasions, and that is something that we do not have here.
I should like to point out to the Minister one danger of the test which I do not think that he has spotted but which may concern him more than many of the dangers that we have pointed out. We have been anxious throughout that people will be pronounced fit for work who are not, but there is another danger. The test concentrates on a functional limitation. It concentrates on all work rather than work that the person could have done if fit. That means that because of one physical disability, such as in my case the inability to touch my toes, I might be pronounced incapable of all work when I believe that not to be the case.
If enough allowance is given to one functional limitation which would prevent a person from doing the job for which that functional ability is essential, a lot of other people who simply do not need that function to do

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their work will be pronounced unfit for work, taken out of work and paid benefit at the taxpayers' expense when it is entirely unnecessary. So much for any idea that the test is objective.
Baroness Darcy (de Knayth): My Lords, despite my quailing voice, I should like to support the amendment wholeheartedly. I participated last night in a very good debate approving the code of practice for children with special educational needs. That draft was subject to very wide consultation and was considerably improved and changed. That was the first time that I had taken part in such an exercise and I was very impressed by the whole process. I think that the noble Lord, Lord Carter, has come up with an excellent solution and I hope that the Minister will either accept it or come back with a draft code of his own.
Lord Swinfen: My Lords, I shall not detain the House, but I wish to state that I am fully in support of the amendment. As the noble Baroness, Lady Darcy, has just said, if the Government cannot accept the wording, perhaps they will give an undertaking to come back on Third Reading with another amendment.
The Countess of Mar: My Lords, I too should like to support the amendment of the noble Lord, Lord Carter. When I spoke on Second Reading I spoke specifically of people who suffer intermittent symptoms with their illness. I know those effects only too well. I am worried that the Government appear to be relying on a note from a GP as well as the questionnaire which has to be filled in. It was three years before my GP realised what I was suffering from. He could very well have said in the intervening period that I was suffering from imagination and might not have been supportive. I should therefore be grateful if the Minister could look again at the amendment.
Lord Campbell of Croy: My Lords, many of us consider that the nature of the medical test proposed is crucial to the purpose and effect of the Bill. The Government have been engaged in a very wide-ranging consultation process involving everyone they felt had views or a right to comment. That is perfectly right and I am glad that they have done so, but unless there has been a change, it means that the particulars of the medical test will not be known before the Bill completes its passage through Parliament. That is my understanding. I should have preferred the timing to have been the other way round and the medical test to have been worked out before the Bill was introduced. However, I know all the difficulties with legislation and that the Bill is needed in general.
The proposal in the amendment seems a novel one. As the noble Lord, Lord Carter, indicated, the amendment has appeared on the Marshalled List only today. The noble Lord said that it is a way of trying to probe the Government's thinking and how they will deal with this dilemma—and it is a dilemma. When the Bill finally leaves Parliament, there will still be a great questionmark over the nature of the medical test. I hope that the Government will take that point on board. I shall be interested to hear their response to the amendment.
Baroness Masham of Ilton: My Lords, I too would like to support the amendment. It is well known in the field of disability that medical students do not receive any training at all on some disabilities and very little on others, yet the field of disability is wide and varied. I hope that the Government will take the amendment seriously because a GP's note might not mean very much. As a paraplegic, I have sometimes been examined by doctors who have said, "I have never seen a paraplegic before". I hope that the Government will take the amendment seriously.
Viscount Astor: My Lords, the amendment seeks to ensure that your Lordships debate and consider the regulations relating to the medical test. I hope that you will forgive me if I do not go into the details of the test now. It is not that I do not want to, but we shall consider later on amendments concerned with the details of the medical test. It is better that we deal with those points then and that I deal now with the regulations and their scrutiny by the House.
The noble Earl, Lord Russell, said that I either said or implied that your Lordships should not concern yourselves with the details of the test. I did not intend to give that impression. I hope that I did not use those words. What I said in Committee, and I shall repeat it, is that it is important that your Lordships consider the test and the regulations. The regulations will come before your Lordships as affirmative resolutions, and you will have the opportunity to debate them.
This amendment attempts to go further than that. It introduces other subjects, which I am not sure is what the noble Lord, Lord Carter, intended. It may help if I explain. We have already promised that we intend to publish a report in August this year which will summarise the results of the consultation exercise, the work of the expert panel and the evaluation exercise, all of which we have undertaken on the development of the all-work test. The report will also set out the proposed test and details of the proposed procedures for the administration and adjudication of the new benefit It will be freely available, and we shall seek views on the details of the new test and the procedures. We intend to consult disability organisations on the proposals and on the guidance. We shall take account of any comments that we receive in deciding the final detail of the test that will be set out in the regulations and the proposed procedures.
Like other social security benefits, it will be necessary to draw up detailed procedures for all aspects of the administration and adjudication of incapacity benefit. That will include guidance to our staff in Benefits Agency offices; for example, on the handling of claims and answering inquiries about the benefit. The chief adjudication officer will issue guidance to adjudication officers. The department will issue guidance to GPs about their role in the new benefit. In addition to any necessary training, BAMS doctors will be given written guidance on the operation of the all-work test.
There will be a great deal of written material available on the application of the new benefit. All that

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guidance will be available publicly so that everyone with an interest will be able to see in detail how the benefit will be administered.
Perhaps I may deal with matters that the amendment seeks to include in the draft code of practice. I have already explained how the own-occupation and the all-work test of incapacity will operate. I do not propose to go through those details again. Different criteria apply to the different tests. The own-occupation test obviously assesses a person's incapacity against his ability to do his own job. When considering whether a person should refrain from doing his own job, his own doctor will take account of relevant factors such as the person's general state of physical and mental health, his disabilities and his capacity to cope with pain and stress.
The all-work test will take account of medical factors only, but the amendment seeks to take account of non-medical factors, in effect, by the back-door. That is the debate we shall be having when we come to the next amendment. We shall not need to consider how to take account of non-medical factors such as age, education, experience, training or the likelihood of the person obtaining work. The test will take full account of the person's state of physical and mental health, the intermittent nature of certain medical conditions and the variability of their effects and factors such as pain, stress and fatigue. In designing the all-work test we are using the definition of—
Earl Russell: My Lords, I am grateful to the Minister for giving way. Does he accept that fit people are not always capable of all work?
Viscount Astor: My Lords, I accept that there are people who might be fit but find that when they come to do a job they can do it for only a day and then have to have a rest for a week afterwards or whatever it may be. In that sense, the noble Earl is right. When we come to discuss the amendments on the medical test, we shall explain in more detail how such issues are affected.
In designing the 'all-work test, we are using a definition of work of more than 16 hours a week. That is in guidance that we have issued to the expert panel which is helping us with the design of the test.
Many of the matters covered by the proposed draft code of practice will feature in the application of the new test that we are designing. The amendment seeks also to introduce into the all-work test by, in effect, the back-door, other factors that we debated in Committee when we explained why they are not acceptable. Both Houses can debate the regulations. I agree with the noble Lord, Lord Carter, that they should be debated, but the amendment goes much further than that. It does not say just that there should be a debate in your Lordships' House, which we are having anyway. It seeks to include in the medical test things such as non-medical factors that we have already discussed and would be at variance with the medical test itself. I hope that I have been able to reassure your Lordships that we shall consult widely; that everything will be made public; and that you will be able to debate the regulations when they come before the House.
Lord Carter: My Lords, there is a Citizen's Charter and a Patient's Charter. The more I listen to the Government, the more I think that there should be a Parliamentarian's Charter. It seems that everyone is to be allowed to have their say on this and to affect the code of practice except those in Parliament. Of course we can debate regulations, but the Minister—I think deliberately—completely ignored my point that we cannot amend regulations. All we can do is reject them.
If the Minister is saying that the best way to handle the problem is to give Parliament the chance to reject the regulations outright, with all the chaos that that would cause, I think that that is a ridiculous argument. The amendment arose because I was sitting here in Committee listening to the problem of how to deal with the medical test which is subject to a great deal of debate and criticism. We shall have no chance to deal with them except by debating the regulations and then rejecting them. It occurred to me then that the code of practice was a way for the Government to meet those concerns. I was prepared for the Minister to say that he did not like the drafting of the amendment, that it goes too wide, or whatever, but that he accepted the principle and that the Government would come back with their own amendment which accepted this proposal as a way around the problem.
The noble Baroness, Lady Darcy (de Knayth), gave us an example when she said that only last night there was a debate in the House on the code of practice for special educational needs. So what is the difference? It is a device which is useful in these circumstances. I have done a great many social security Bills. We always hear about all the wide consultations and the fact that reports will be available, but in the end the Government will say what they intend to do and Parliament will not be able to amend the regulations. It can only reject them. That is the weakness of the whole argument.
We heard from the noble Earl, Lord Russell, that the consultative panel is unhappy about the way the matter is being conducted. The Minister said that we shall have a chance to discuss amendments to the tests. We cannot discuss amendments to the tests. As I have said, we shall not see them until the Bill receives Royal Assent and they are presented to us in regulations as, "Take it or leave it". That is the Government's motto: take it or leave it. We are not going to take it. I intend to ask the House for its opinion.
5.38 p.m.
On Question, Whether the said amendment (No. 12) shall be agreed to?
Their Lordships divided: Contents, 129; Not-Contents, 139.

Division No. 3

CONTENTS

Addington, L.

Bath, M.

Airedale, L.

Beaumont of Whitley, L.

Allenby of Megiddo, V.

Blackstone, B.

Archer of Sandwell, L.

Bonham-Carter, L.

Ardwick, L.

Bottomley, L.

Ashley of Stoke, L.

Brimelow, L.

Attlee, E.

Carmichael of Kelvingrove, L.

Avebury, L.

Carter, L. [Teller.]

Bancroft, L.

Castle of Blackburn, B.

Barnett, L.

Charteris of Amisfield, L.

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Chichester, Bp.

Kinloss, Ly.

Cledwyn of Penrhos, L.

Listowel, E.

Clinton-Davis, L.

Llewelyn-Davies of Hastoe, B.

Cocks of Hartcliffe, L.

Lockwood, B.

Cornwallis, L.

Lovell-Davis, L.

Coventry, Bp.

Mackie of Benshie, L.

Craigavon, V.

Mallalieu, B.

Crook, L.

Mar, C.

Darcy (de Knayth), B.

Masham of Ilton, B.

David, B.

Mason of Barnsley, L.

Davies, L.

McCarthy, L.

Dean of Beswick, L.

McIntosh of Haringey, L.

Dean of Thomton-le-Fylde, B.

Merlyn-Rees, L.

Desai, L.

Milner of Leeds, L.

Donaldson of Kingsbridge, L.

Mishcon, L.

Dormand of Easington, L.

Molloy, L.

Eatwell, L.

Monkswell, L.

Elis-Thomas, L.

Mulley, L.

Ennals, L.

Murray of Epping Forest, L.

Ewing of Kirkford, L.

Nathan, L.

Ezra, L.

Nicol, B.

Falkland, V.

Ogmore, L.

Fitt, L.

Palmer, L.

Gallacher, L.

Peston, L.

Geraint, L.

Pitt of Hampstead, L.

Glenamara, L.

Prys-Davies, L.

Gould of Potternewton, B.

Rea, L.

Graham of Edmonton, L.

Richard, L.

Greene of Harrow Weald, L.

Rix, L.

Gregson, L.

Rochester, L.

Grey, E.

Russell, E.

Haig, E.

Sefton of Garston, L.

Halsbury, E.

Serota, B.

Hanworth, V.

Shaughnessy, L.

Harris of Greenwich, L.

Stedman, B.

Haskel, L.

Stoddart of Swindon, L.

Healey, L.

Strabolgi, L.

Hertford, M.

Swinfen, L. [Teller.]

Hilton of Eggardon, B.

Thomson of Monifieth, L.

Hollick, L.

Thurso, V.

Hollis of Heigham, B.

Tonypandy, V.

Holme of Cheltenham, L.

Tordoff, L.

Hooson, L.

Turner of Camden, B.

Howell, L.

Walpole, L.

Hughes, L.

Whaddon, L.

Hunt, L

Wharton, B.

Hylton, L.

White, B.

Irvine of Lairg, L.

Wigoder, L.

Jay of Paddington, B.

Williams of Crosby, B.

Jeger, B.

Williams of Elvel, L.

Jenkins of Hillhead, L.

Williams of Mostyn, L.

Jenkins of Putney, L.

Winchilsea and Nottingham, E.

Judd, L.

Wise, L.

Kennet, L.

Zouche of Haryngworth, L.

Kilbracken, L.

NOT-CONTENTS

Addison, V.

Chalker of Wallasey, B.

Alexander of Tunis, E.

Chesham, L.

Annaly, L.

Clark of Kempston, L.

Archer of Weston-Super-Mare, L.

Clitheroe, L.

Arran E.

Colwyn, L.

Astor of Hever, L.

Constantine of Stanmore, L.

Astor, V.

Cork and Orrery, E.

Balfour, E.

Courtown, E.

Barber of Tewkesbury, L.

Cranborne, V.

Barber, L.

Crickhowell, L.

Blake, L.

Cumberlege, B.

Blatch, B.

Davidson, V.

Borthwick, L.

Denham, L.

Boyd-Carpenter, L.

Dixon-Smith, L.

Braine of Wheatley, L.

Donegall, M.

Brigstocke, B.

Dormer, L.

Brougham and Vaux, L.

Eccles of Moulton, B.

Bruntisfield, L.

Eden of Winton, L.

Burnham, L.

Elibank, L.

Campbell of Alloway, L.

Elles, B.

Campbell of Croy, L.

Elliott of Morpeth, L.

Carnegy of Lour, B.

Ferrers, E.

Carnock, L.

Gisborough, L.

1476

Glenarthur, L.

Onslow, E.

Goschen, V.

Oppenheim-Barnes, B

Granard, E.

Orkney, E.

Gray of Contin, L.

Orr-Ewing, L.

Greenway, L.

Oxfuird, V.

Gridley, L.

Pender, L.

Grimston of Westbury, L.

Perry of Southwak, B.

Harding of Petherton, L.

Peyton of Yeovil, L.

Haslam, L.

Prentice, L.

Hayhoe, L.

Prior, L.

Henley, L.

Pym, L.

Hesketh, L.

Rankeillour, L.

Hindlip, L.

Rawlinson of Ewell. L,

Hives, L.

Rennell, L.

Holderness, L.

Renton, L.

HolmPatrick, L.

Rippon of Hexham, L

Hood, V.

Rodger of Earlsferry, L.

Hooper, B.

Romney, E.

Howe, E.

Saltoun of Abernethy, Ly.

Hylton-Foster, B.

Seccombe, B.

Kenyon, L.

Selkirk, E.

Kimball, L.

Skelmersdale. L.

King of Wartnaby, L.

St. Davids, V.

Kinnoull, E.

Stewartby, L.

Knollys, V.

Stodart of Leaston, L.

Knutsford, V.

Strange, B.

Lauderdale, E.

Strathcarron, L.

Lindsay, E.

Strathclyde, L.

Liverpool, E.

Strathcona and Mount Royal, L.

Long, V. [Teller.]

Strathmore and Kinghorne, E.

Lucas, L.

[Teller.]

Lyell, L.

Sudeley, L.

Mackay of Ardbrecknish, L.

Swansea, L.

Mancroft, L.

Thomas of Gwydir, L.

McAlpine of West Green, L.

Tollemache, L,

Merrivale, L.

Trefgarne, L.

Mersey, V.

Trumpington, B.

Miller of Hendon, B,

Vaux of Harrowden, L.

Milverton, L.

Vivian, L.

Morris, L.

Wade of Chorlton, L.

Mountevans, L.

Wakeham, L. [Lord Privy Seal.]

Mowbray and Stourton, L.

Walker of Worcester, L.

Moyne, L.

Westbury, L.

Munster, E.

Whitelaw, V

Murton of Lindisfame, L.

Wolfson, L.

Nelson of Stafford, L.

Wynford, L.

Norrie, L.

Young, B.

Resolved in the negative, and amendment disagreed
5.47 p.m.
Lord Swinfen Lord Swinfen moved Amendment No. 13:
Page 10, line 6, at end insert:
("( ) A person is not to be treated as incapable of work except in respect of work for which he is suited by education. training or experience.").
The noble Lord said: My Lords, Amendment No, 13 seeks to restore consideration of some non-medical factors of relevance to incapacity and to ensure that these factors appear in primary legislation rather than in regulations. The new so-called "objective medical test" will assess only physical and mental functions, which is a measure of impairment but not of incapacity. The proposed test, which is based on adding up points from a score of functional limitations, is not the same as incapacity. Ability to undertake work is not synonymous with ability to perform a standard set of activities. Other factors are also relevant.
The test currently used in respect of invalidity benefit includes factors such as education and experience, which interact with disablement. A person can 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

1477
he can reasonably be expected to do. The amendment is designed to ensure that people are considered capable only of work which is realistic, given their disability. The availability of such work is not taken into account and nor are personal factors which have no bearing on incapacity; for instance, domestic commitments.
A person who becomes disabled after a lifetime of manual work, and with no educational qualifications, can be found incapable of work if factors such as educational and employment background are taken into account when looking at the type of work that he could reasonably be expected to do. The Government estimate that the new test will exclude 200,000 people from invalidity benefit. That reference can be found in Commons Hansard of 9th February at col. 369. Therefore, it is likely that, under this new test, disabled people who are nevertheless incapable of work will be regarded as fit for work and will lose benefit.
The amendment does not seek to reintroduce all the factors considered with the present test. It attempts to reinstate consideration of the range of work which someone can reasonably be expected to undertake given factors such as education and training. It is inaccurate to view incapacity for work in stark all-or-nothing terms. Potentially there is a wide gap between "own work" and "all work", which the proposed test ignores. The amendment addresses the Government's aim to develop an objective definition of incapacity for work but with a more realistic approach.
It introduces a formula which provides a realistic and reasonable way to assess the work which someone could be capable of undertaking. Clearly, in order to ascertain what work a person is suited for, consideration must be given to education, training and experience. That approach is taken at present in the private sector.
For the purposes of permanent health insurance, someone can be regarded as incapable of work if there is no work for which a person is suited by training, education or experience. It is a definition which is less severe than "any work" and normally means that a company could establish whether or not a claimant could do a similar job for which he is suited. Thus, it avoids the absurd situation of an executive recovering from a nervous breakdown being considered fit for work as a storekeeper. Indeed, the insurance ombudsman's report for 1993 stated on page 23
"There is no point in expecting a man who has been a labourer all his life to be able to do clerical work … it must be taken as implicit that there is a reasonable chance of the policyholder being acceptable to an employer in that field".
This particular amendment was not tabled in Committee, although a similar amendment was tabled which aimed to reintroduce the concept of reasonableness into the "all work" test. That amendment was debated and withdrawn. In Committee my noble friend Lady Cumberlege stated that that amendment undermined the aim of the new incapacity test, which was intended to move away from the subjectivity of the current system. In particular, she indicated that, despite its objective of reasonable work, the current system often produced unreasonable outcomes.
She said that:
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"Currently, the adjudication officer may be asked to give a list of jobs that a claimant could do: this is an unreasonable demand, as an adjudication officer is not an employment rehabilitation adviser".—[Official Report, 21/4/94; col. 325.]
My noble friend went on to suggest that employability and incapacity were becoming blurred and therefore produced unfairness. She went on to state that:
"two people with precisely the same degree of incapacity may be treated differently because one has retrained and the other has not".
The method of specifying alternative jobs, as it is undertaken in the current system, is a reasonable way of assessing whether or not someone can undertake a particular job. It is only by specifying the jobs which the claimant is considered capable of undertaking that the range of activities and abilities relating to that particular job, and therefore someone's ability to do it, can be considered, although in practice there is evidence of peculiar careers advice given by the Benefits Agency. That is more as a result of an incorrect functional emphasis than inappropriate use of job descriptions.
If the Government consider that adjudication officers are at a disadvantage compared with disability employment advisers, there are practical ways in which to address that; namely, through collaboration or retraining of staff of the Benefits Agency or the employment department. Furthermore, a similar method is used in the private sector for deciding claims under permanent health insurance. Indeed, the insurance ombudsman stated that insurers should not repudiate claims on the grounds that the policyholder could undertake some other type of work without specifying what he could do.
In case law, which was referred to by my noble friend in relation to the point at which alternative work should be considered, it was held that someone's incapacity should be assessed by reference to their present work capacity without regard to whether they would become capable of work following training. It is a present rather than a future test. Only when someone has retrained could that capacity be reviewed. I beg to move.
Lord Carter: My Lords, I was pleased from these Benches to add my name to the amendment which has been so ably spoken to by the noble Lord, Lord Swinfen. Therefore, I can be brief.
I have two points to make. It is ironic that, in the work market, when any employer looks at a potential employee, he will look at three factors: education, training and experience. Those are the three attributes mentioned in the amendment. However, the Government wish to move away from that in the "all work" test. We all know why; they are playing the numbers game. The subjectivity of the existing test, which was mentioned by the noble Baroness, Lady Cumberlege, in Committee, has meant that too many people are receiving the present benefit. Therefore, the Government have devised a test to make sure that 200,000 people will be taken off the benefit.
As we discovered in Committee, the problem arises with regard to the definition which the Government are using when they refer to "all work" on the open market. I made the point in Committee and I repeat it now: the market becomes more and more open as jobs become less and less skilled. I gave two extreme examples;

1479
namely, envelope stuffers and Concorde pilots. There is an extremely open market for envelope stuffers but a closed market for Concorde pilots.
The Government's intention is to reduce the number of claimants for this new benefit. By doing that, they are creating an area of increasing injustice to people who are entitled to benefit. The rigidity and weakness of the test, which we have discussed, mean that large numbers of people who are receiving the benefit will be taken off it.
Earl Russell: My Lords, when the Minister replies, I am sure that he or she—I do not know who is to reply —will say that this amendment attempts once again to introduce non-medical factors. I would say that it brings the test into the real world, because we are not, any of us, merely a collection of medical symptoms. We are people. Our capacity for work involves our ability as people to fit into certain environments and perform certain jobs in those environments.
That cannot possibly be tested except in relation to work for which we should otherwise have been fit. I have referred already to the letter from some of those who have worked on the tests. They said:
"Some of us have been unable to complete the exercises",
that is, working out possible tests—
"and have indicated our reasons why to the department. Those of us who have undertaken the tasks have found that the exercises themselves have reinforced the potential difficulties we perceive as inevitable in the measurement of incapacity such as this. In particular we are concerned about the arbitrariness of scoring according to mechanical functions without reference to other factors such as age or employment history. The concentration on functions to the exclusion of all else is contrary to the whole person approach which so many of us advocate".
If that is the view of those who have actually been working on the compilation of the tests, who is there left to believe in what is coming out as a result? That is a very telling comment.
I imagine that the Government will insist that we are trying to reintroduce labour market factors. We are not. We accept that they should be excluded, and there is no question about that; but always in the Government's arguments we find an undistributed middle. They take an alleged alternative to what we are saying and say, "If not one, then the other". In the Official Report of the Committee stage, that phrase appeared as an "undistributed niggle". I did not correct it because I decided that it represented my meaning rather better than what I had originally intended to say. What we have here from the Government is a series of undistributed niggles.
I have with me a copy of the Minister's letter to the noble Lord, Lord McColl, which he has very kindly copied to me. In it the Minister says that he is trying to work on a collection of 100 occupations. One may be unfit for all of those 100 occupations, but not for one that one can do. Alternatively, as in the case of Professor Stephen Hawking who was mentioned by the noble Baroness, Lady Darcy (de Knayth), in Committee, one might be unfit for the 100 occupations and yet, nevertheless, one might find work for which one is fit, and fit with some distinction. That illustrates the extent to which one cannot discuss fitness for work independent of the person and the skills involved. The
1480
attempt to exclude anything but functional limitations works severely against illness. What we have here is a test for disability; it is not a test for illness. Disability is not absolutely synonymous with unfitness for work, as anyone who has suffered from ME or glandular fever knows perfectly well.
In his letter to the noble Lord, Lord McColl, the Minister said:
"The new medical test is designed to assess a person's capacity to perform the activities involved in work".
I wonder what the Minister meant by that remark. What exactly are,
"the activities involved in work"?
I do not have the first idea as to what they can be. Indeed, I would have to be told what work before I could even begin to answer that question. Between the own-occupation test and the all-work test there is an undistributed middle and it is to that undistributed middle that I am constantly trying to bring the Government back: fitness for work that one would otherwise have been capable of doing. That is what we need. I cannot see that anything else is really serving any useful function.
On the question of age, the Minister said:
"We do not wish to condone the actions of any employers who make the age of a job applicant the critical factor in deciding whether to employ him".
If the Minister means what he says, he is promising legislation. Is that the case?
6 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, the amendment seeks to define the factors to be considered both in the own-occupation test and the all-work test and to prescribe them on the face of the Bill. As my noble friend Lord Swinfen said, the amendment surfaced in a slightly different form in our debates in Committee. However, as I said then, the amendment is contrary to the Government's intention.
The own-occupation test will be a factual test of whether or not a person is well enough to do his own job, and can take into account both medical and non-medical factors. 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. Training, education and work experience are unlikely to be important factors at this stage, as the person will evidently be sufficiently experienced, educated and trained 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. It will be the GP who will advise a claimant to refrain from doing his job, and that advice will be the evidence on which the adjudication officer bases his decision. As the test is whether a person is fit enough to do his own job—that is, the job he was doing up to 21 weeks

1481
previously—experience, training and education are simply not significant. I hope that noble Lords will accept that point.
The application of the amendment to the all-work test raises different issues. The all-work test does not take into account factors like training, employment history or educational qualifications. We firmly believe that that is right. 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 for evermore simply because they are physically incapable of performing one particular job. That is why the all-work test will apply.
Perhaps I may interject a comment here. I know that some noble Lords seem to feel that, in the current situation, once people receive benefit they continue to do so. However, I am sure that noble Lords will realise that will change once people who have previously been receiving benefit are found to be capable of work under the current system. The new all-work test will not be the first time that people have been found to be fit and taken off benefit. In the year ending September 1993 over 920,000 cases were referred to the medical service of the Benefits Agency for a second opinion on incapacity, and over 123,000 of those people were either found capable of work or the person terminated his claim before he was examined. I believe that under the current arrangements that shows a significant number of people are found capable of work.
The all-work test will be applied after six months. We intend incapacity benefit to go to people who are sick and disabled, not to people who cannot find a job because they are untrained, insufficiently educated, unskilled, or inexperienced. It is not a benefit awarded on grounds of employability. The new medical test is designed to assess a person's capacity to perform the activities involved in work, not his likelihood of employment. Our development work on the test—for example, in the 100 jobs exercise—is ensuring that the activities in the all-work test are related to the job requirements of nearly three-quarters of occupations in the UK economy.
Education is not relevant to an assessment of incapacity. Many people complete their formal education before they reach a level that they are truly capable of attaining. Many are not offered the opportunity to go as far in their education as they might like. They may go back in later life to complete their formal education. It would be wrong to assume that incapacity benefit claimants are not capable of further education. Quite often, formal education is less of a requirement than aptitude and potential. Again, it would be wrong to enshrine in legislation a system which is at odds with what does and should happen in reality.
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. If a person cannot find work because he lacks training,
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assistance is offered by the employment department. A range of options exists to help with training and rehabilitation.
People can retrain. If I may say so, it is a little arrogant to suggest that certain categories of people—for example, those who have previously done manual jobs—cannot retrain. In fact, we know that they can do so. I see that the noble Earl wishes to intervene. I give way.
Earl Russell: My Lords, I beg the Minister's pardon, but can she tell us when we suggested that those people could not retrain for work for which they would otherwise have been fit?
Baroness Cumberlege: My Lords, I am sure that your Lordships will appreciate that I have been trying to draw the distinction between the provision and the amendment which seeks to include other factors that we feel are irrelevant to a person's ability to do a job because of his sickness or his disability. That is what I am trying to establish.
In a recent survey of employment training we were able to show that 56 per cent. of trainees were training to do a new type of work; and we all know that in the north Nottinghamshire area alone, around 600 people who worked in coal mines or related industries have undergone or are undergoing retraining. As with training, it is completely fair that a person who cannot find work because he has experience of only one job and is now medically incapable of doing that job should be tested for his medical capacity to perform a range of jobs. Why should someone be expected to restrict his employment to only one type of work? A person who has no medical incapacity but whose job in, for example, a fading industry ceases to exist must consider a range of jobs. In the first case, the person cannot perform his old job because of a particular health problem; in the second, because the job no longer exists. It is only fair that both people should equally be expected to consider themselves against other work. Of course, if the person in the first case is not fit to do other work, he will receive incapacity benefit. But I do not see how anyone can argue that he should not even have his medical capacity to do other work measured.
This amendment 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, sometimes —as your Lordships illustrated on Second Reading—bizarre. We know there are problems consequent on the structure of the current system; many of the problems have been raised by noble Lords opposite. Current case law on "reasonable work" requires adjudication officers to take account of all sorts of factors including the non-specific "other social factors". These are just not relevant to incapacity. With this test we are aiming at a fairer and more objective test of incapacity. For these reasons I hope that my noble friend will withdraw his amendment.
Lord Carter: My Lords, before the noble Baroness sits down, I should say, with the leave of the House, that

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I believe she quoted some figures from the existing system in the year to September 1993. I believe she said that something like 900,000 people are referred back —presumably by benefit officers—and of these eight out of nine are still found to be unfit for work. I think she said that 120,000 were found to be fit for work. Is this the example that she gives of the subjectivity of the present system—not doing the job that the Government want the test to do, which is to take people off benefit?
Baroness Cumberlege: No, my Lords. It was really to try to redress the view I think your Lordships have that the present system is working well and that people, once they are on sickness benefits, remain on those benefits. But what I am trying to point out is that they are tested and that many of them actually do go back to work.
Lord Carter: My Lords, I am sorry to insist, but I believe the noble Baroness said that eight out of nine are found to be unfit for work.
Baroness Cumberlege: My Lords, I was only trying to make the point that once a person is on a benefit they do not necessarily always stay on that benefit; that there are tests and some of them go back to work.
Earl Russell: My Lords, does the noble Baroness understand that the argument on this side of the House is that the objectivity which is being claimed here is on a level such that it is not a human attribute?
Baroness Cumberlege: My Lords, I think, if I may say, that that is perhaps rather an unfair comment. We are seeking very carefully to produce a test that is objective. Your Lordships, in this amendment, are trying to make it much more subjective by introducing factors other than the person's present condition in terms of disability or health. I believe that training, education and experience bring in a whole range of subjectivity which we are seeking to exclude, bearing in mind that there are elements within our social security system which will take care of those people.
Lord Swinfen: My Lords, the noble Baroness has given a long and detailed response. However, I am not sure that I agree with it. My amendment is not seeking to say that people are incapacitated if they are not capable of one particular job or a range of jobs. Nor does it say that people who will receive incapacity benefit are incapable of further education or retraining. My noble friend brought out the case of miners who have been retrained after their colliery closed down. That is totally irrelevant because they are not disabled. They are not incapable. They are fit. There are lots of different kinds of jobs they can get. This amendment deals with people who are already physically or mentally incapacitated and then asks that other aspects that affect them personally should be taken into account. I understand that at present those found incapable of work constitute only two out of 10 claimants. That is not a great number. Why throw the baby out with the bath water because that is what the Government are trying to do? I am sorry, but I am not satisfied with my noble friend's response. I feel that I must ask the opinion of the House.
6.15 p.m.
On Question, Whether the said amendment (No.13) shall be agreed to?
Their Lordships divided: Contents, 107; Not-Contents, 124.

Division No. 4

CONTENTS

Addington, L.

Hylton, L.

Airedale, L.

Irvine of Lairg, L.

Archer of Sandwell, L.

Jay of Paddington, B.

Ardwick, L.

Jeger, B.

Ashley of Stoke, L.

Jenkins of Putney, L.

Attlee, E.

Judd, L.

Bancroft, L.

Kagan, L.

Barnett, L.

Kilbracken, L.

Bath, M.

Kilmarnock, L.

Beaumont of Whitley, L.

Kinloss, Ly.

Blackstone, B.

Listowel, E.

Bonham-Carter, L.

Llewelyn-Davies of Hastoe, B.

Bottomley, L.

Lockwood, B.

Brimelow, L.

Mackie of Benshie, L.

Bruce of Donington, L.

Mar, C.

Carter, L.

Masham of Ilton, B.

Cledwyn of Penrhos, L.

Mason of Barnsley, L.

Clinton-Davis, L.

McCarthy, L.

Cornwallis, L.

McIntosh of Haringey, L.

Coventry, Bp.

Mellish, L.

Crook, L.

Merlyn-Rees, L.

Darcy (de Knayth), B.

Milner of Leeds, L.

David, B.

Molloy, L.

Dean of Beswick, L.

Monkswell, L.

Dean of Thornton-le-Fylde, B.

Nicol, B.

Desai, L.

Ogmore, L.

Donaldson of Kingsbridge, L.

Palmer, L.

Dormand of Easington, L.

Peston, L.

Eatwell, L.

Pitt of Hampstead, L.

Elis-Thomas, L.

Prys-Davies, L.

Ennals, L.

Rea, L.

Ewing of Kirkford, L.

Richard, L.

Faithfull, B.

Rix, L.

Falkland, V.

Rochester, L.

Gallacher, L.

Russell, E.

Geraint, L.

Saltoun of Abernethy, Ly.

Glenamara, L.

Sefton of Garston, L.

Gould of Potternewton, B.

Serota, B.

Graham of Edmonton, L.

Shannon, E.

Greene of Harrow Weald, L.

Stedman, B.

Gregson, L.

Stoddart of Swindon, L.

Grey, E.

Strabolgi, L.

Halsbury, E.

Swinfen, L. [Teller.]

Harris of Greenwich, L.

Thurso, V.

Harrowby, E.

Tordoff, L.

Haskel, L.

Turner of Camden, B.

Hertford, M.

Walpole, L.

Hilton of Eggardon, B.

White, B.

Hollick, L.

Wigoder, L.

Hollis of Heigham, B.

Williams of Crosby, B.

Holme of Cheltenham, L.

Williams of Elvel, L.

Hooson, L.

Williams of Mostyn, L.

Howell, L.

Zouche of Haryngworth, L.

Hughes, L.

[Teller.]

NOT-CONTENTS

Addison, V.

Campbell of Alloway, L.

Annaly, L.

Carnegy of Lour, B.

Archer of Weston-Super-Mare, L.

Chalker of Wallasey, B.

Arran, E.

Chelmsford, V.

Astor of Hever, L.

Chesham, L.

Astor, V.

Clanwilliam, E.

Balfour, E.

Clark of Kempston, L.

Barber, L.

Constantine of Stanmore, L.

Blake, L.

Cork and Orrery, E.

Blatch, B.

Courtown, E.

Boyd-Carpenter, L.

Craigmyle, L.

Braine of Wheatley, L.

Cranborne, V.

Brougham and Vaux, L.

Cranbrook, E.

Bruntisfield, L.

Crickhowell, L.

Burnham, L.

Cross, V.

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Cumberlege, B.

Mountevans, L.

Davidson, V.

Mowbray and Stourton, L.

Denham, L.

Moyne, L.

Dixon-Smith, L.

Munster, E.

Donegall, M.

Murton of Lindisfarne, L.

Eccles of Moulton, B.

Nelson of Stafford, L.

Elibank, L.

Onslow, E.

Elliott of Morpeth, L.

Orkney, E.

Ferrers, E.

Orr-Ewing, L.

Flather, B.

Oxfuird, V.

Gisborough, L.

Pender, L.

Glenarthur, L.

Prentice, L.

Goschen, V.

Rankeillour, L.

Gowrie, E.

Rees, L.

Gray of Contin, L.

Renton, L.

Greenway, L.

Rippon of Hexham, L.

Gridley, L.

Rodger of Earlsferry, L.

Grimston of Westbury, L.

Romney, E.

Haig, E.

Seccombe, B.

Harding of Petherton, L.

Selborne, E.

Harmar-Nicholls, L.

Sharples, B.

Haslam, L.

Skelmersdale, L.

Hayhoe, L.

Slim, V.

Henley, L.

St. Davids, V.

Hesketh, L.

Stewartby, L.

Hindlip, L.

Stodart of Leaston, L.

Hives, L.

Strange, B.

Holderness, L.

Strathcarron, L.

HolmPatrick, L.

Strathclyde, L.

Hood, V.

Strathmore and Kinghorne, E.

Hooper, B.

[Teller.]

Howe, E.

Sudeley, L.

Hylton-Foster, B.

Swansea, L.

Jeffreys, L.

Tebbit, L.

Kenyon, L.

Teviot, L.

Kimball, L.

Thomas of Gwydir, L.

Kinnoull, E.

Tollemache, L.

Lauderdale, E.

Trefgarne, L.

Liverpool, E.

Trumpington, B.

Long, V. [Teller.]

Vaux of Harrowden, L.

Lucas, L.

Vivian, L.

Lyell, L.

Wade of Chorlton, L.

Mackay of Ardbrecknish, L.

Wakeham, L. [Lord Privy Seal.]

Mancroft, L.

Whitelaw, V.

Merrivale, L.

Wolfson, L.

Mersey, V.

Wynford, L.

Miller of Hendon, B.

Young, B.

Milverton, L.

Resolved in the negative to accordingly.
6.23 p.m.
Lord Swinfen Lord Swinfen moved Amendment No. 14:
Page 10, line 6, at end insert:
("() A person shall be treated as incapable of work by reference to the point at which his ability to undertake work-related activity is substantially reduced, not the point where work becomes impossible.").
The noble Lord said: My Lords, Amendment No. 14 has two aims. The first is to place a definition of the nature of incapacity on the face of the Bill. The paucity of detail about the proposed test of incapacity within the Bill itself and the leaving of the details of the new test of incapacity to regulations not yet drafted was debated at length during the Committee stage. However, with no definition on the face of the Bill it is impossible to have an adequate debate on incapacity for work.
The second aim of the amendment is to use a definition of incapacity which has been put to the expert panel considering the new tests. I am told that the experts are attempting to score and rate functional limitations. That definition was revealed to selected Members of your Lordships' House at a presentation on
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the test three weeks ago. It has been incorporated in guidance sent to panel members with each exercise for scoring functional limitations.
In that guidance panel members are expected to set a threshold of incapacity by reference 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 concept of incapacity is designed to assist the Department of Social Security to define a threshold above which a person should be regarded as incapable of work for the purpose of assessing benefit entitlement. It is important because it means that someone can be entitled to benefit without being totally immobile.
I understand from the Disability Alliance, which has some members on the panel, that the panel itself has not met in its entirety. I should be grateful if my noble friend, when replying, will say how the panel is working and whether it will be meeting in its entirety so that proper discussion between all members can take place. I also understand that a number of the panel members are not in favour of a functional test.
The concept of substantial reduction in work capacity is important recognition that incapacity for work is not absolute but a continuum. If this definition of incapacity is being used by the panel, there seems no reason why it should not appear on the face of the Bill itself.
At Committee stage the matter was debated as part of a longer amendment, which was withdrawn. My noble friend Lady Cumberlege when replying on 21st April stated that the relevant part of the amendment was unnecessary. She went on to say:
"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… The development of the new medical test therefore is proceeding exactly along the lines suggested by this House. This part of the amendment is unnecessary because what it proposes is exactly what we intend to do'"—[Official Report, 21/4/94; cols. 304–5.]
However, as the amendment accords with the Government's intentions, there is no reason why it should not be on the face of the Bill. It is important to include pointers for the interpretation of incapacity in practice. In recent months there have been numerous examples reported by the citizens advice bureaux and welfare rights advisers of Benefits Agency staff taking an over-zealous approach to incapacity where claimants have had their benefit withdrawn only for it to be reinstated on appeal.
Placing such a definition in the Bill would emphasise to staff that incapacity for work can be established with reduced capacity, not total immobility. I beg to move.
6.30 p.m.
Lord Carter: My Lords, I was pleased to add my name to the amendment. It is an important point. On moving the amendment so ably, the noble Lord, Lord Swinfen, quoted the noble Baroness, Lady Cumberlege, at Committee stage. I believe that this passage should be added to the quotation. The noble Baroness stated:
"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".

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I thought it was a little odd to send instructions to an advisory panel. The instructions are as follows:
"'We 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"'.—[Official Report, 21/4/94; cols. 304–305.]
Those words are included in the amendment. I cannot understand why the Government should resist an amendment which places on the face of the Bill a definition of the extent of incapacity which is the definition to which they already work. At Committee stage and earlier today we discussed the reluctance of the Government to allow Parliament to put on the face of the Bill words which help to clarify important definitions. The amendment includes the definition which is being used. I hope that the Minister will feel able to accept it.
Lord Boyd-Carpenter: My Lords, if the Bill were to contain those words, it would go too far. If such words were on the face of the Bill, they would indicate that where there is a reduction but not an elimination of capacity to work then benefit will be payable. The difficulty is that if one takes a man or woman of considerable ability one can quite substantially reduce his or her working capacity and yet leave him or her with considerable capacity for earning a living. That seems to be covered exactly by the amendment. I believe it to be a great mistake either to put the provision into the Bill or to put its equivalent into regulations.
Lord Carter: My Lords, perhaps I may respond. I quoted from the instructions which the Government have given to the medical panel. If those are the instructions to which the Government are working, would it not help to define "incapacity" in the Government's own words on the face of the Bill?
Baroness Cumberlege: My Lords, this amendment specifies that incapacity should be interpreted as the substantial reduction of ability to perform work. I hope I can satisfy your Lordships by saying that this is exactly what we intend the medical test to do. The amendment seeks to specify on the face of the Bill that a person shall be treated as incapable of work where his ability to perform work-related activities is substantially reduced, not where work becomes impossible. The test will do precisely this. The principle behind this proposal is one on which we are already operating: 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.
We are developing the new all work incapacity test on this basis, and have instructed the assessment panel accordingly. It is our panel. If I may say so, I think that it is quite fair that we should instruct it. The instructions on setting thresholds which we sent to the panel reveal our intention. As has already been said, they state:
"'We 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'".
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This amendment was raised in a similar form in Committee, and our discussions were helpful and wide-ranging. The test, as we have been developing it, incorporates the definitions of work and incapacity raised in this amendment and on which I shall expand. However, we consider that it is inappropriate to place the structure of the test on the face of the Bill: the test is simply too detailed and, more importantly, still open to development through the consultation exercise. To put only some elements of the test into primary legislation would have dangers, and could prevent the implementation of changes to the test, as my noble friend Lord Boyd-Carpenter said.
As noble Lords are aware, we have convened the special panel of occupational health specialists, rehabilitation experts and physicians. A question has been asked as to their total agreement on every issue. Clearly when one has 80 experts together there is room for some differences. The panel is considering the impact of the functional limitations in our disability scales against each of the hundred jobs. The results will serve as a check on the findings of the main assessment exercise, and help to ensure that the scales reflect the impact of disability on capacity to perform the activities involved in work in the open market. For example, the exercise may reveal that some functional limitations are particularly important when assessed against the requirements of particular jobs, and so the scores for the assessment should be re-weighted accordingly.
My noble friend Lord Swinfen, and earlier the noble Earl, Lord Russell, asked whether the panel had met. I understand that it has met on two occasions, when it received instructions on how it was to work. I was also asked whether it was working well. I have to say that we are very grateful to the panel for the amount of work that it has done.
Noble Lords may know that we are also conducting an evaluation study to assess and check the operation of the new test. This will cross-check the relationship between the activities and the levels of activity in the assessment and those required for work. 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 seeking views. Only after all this will we present our final proposals on the test to Parliament for approval, in the form of regulations.
We are developing a test which will be a significant improvement on the current arrangements for the assessment of incapacity. In adapting the OPCS disability scales to measure incapacity for work rather than disability, we are aiming at a more objective test of incapacity. Noble Lords will, I hope, agree that, while the consultation and development period is still incomplete, it would be foolish to set down details of the test in the Bill. I can certainly assure your Lordships that our intention is as set out in the amendment. The report which we shall publish in late summer will confirm and further explain this.
I agree with my noble friend Lord Boyd-Carpenter that it would not be appropriate to accept the amendment as worded at present. But we are willing to have a look at it. I have explained that we are developing

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the new all work test on the basis as set out in the amendment. We do not consider that it is appropriate to amend the Bill. As I have said, however, I am willing to consider the matter again in the light of the discussions we have had today. I am also willing to meet my noble friend Lord Swinfen and the noble Lord, Lord Carter, before Third Reading, to see whether we can agree on a way forward. I hope that, in the light of that offer, my noble friend will withdraw the amendment.
Earl Russell: My Lords, before the noble Baroness sits down, perhaps I may thank her for confirming that the panel has met. However, perhaps I may ask her also to clarify one phrase that she used, referring to the panel receiving instructions about how it was to work. I hope that I have referred to it correctly. To an incautious ear, that might suggest that the panel itself has never agreed to the possibility of such an objective test.
Baroness Cumberlege: My Lords, we sought to instruct the panel on the method of working and how we expected it to exercise its judgment, not how it should exercise its judgment in terms of the results. Clearly it would be pointless for us to have a panel of 80 experts if in the end we did not rely on their judgment and how they were going to assess the particular disabilities and where they were going to put them on the scale.
Earl Russell: My Lords, perhaps I may clarify the matter a little further. Was the panel instructed to produce an objective test, or was it asked whether an objective test was possible?
Baroness Cumberlege: My Lords, within the framework that we have set, we were asking the experts to exercise their judgment in terms of the ratings of disability. I think that I explained that fully at Committee stage. However, if the noble Earl wishes further explanation, I shall be happy to give it to him.
Lord Swinfen: My Lords, I thank my noble friend for her response. I am grateful for her undertaking to have a look at the amendment and what I seek to do. I shall be delighted to meet her between now and Third Reading to discuss the matter. I have not had an opportunity of discussing it with the noble Lord, Lord Carter, but I am sure that he too would be delighted to meet my noble friend Lady Cumberlege. She said that the panel had met twice. My understanding is that the panel is 80 strong and met in two groups of 40 to receive instructions some time before Christmas. To my way of thinking, that does not mean that all the members of the panel have had an opportunity of discussing the matter together. It seems to me that if a panel is to come forward with serious advice to my noble friend's department, all its members should have an opportunity of meeting together, so that the matter may be properly thrashed out.
I note the suggestion of my noble friend Lord Boyd-Carpenter that my amendment would be too inflexible to take account of possible changes in the future. I appreciate that and will examine it. My noble friend Lady Cumberlege said that some functions may have to be re-rated in the context of certain kinds of
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jobs. I shall not ask her to respond now, but perhaps at a later stage or in discussion we can go into the question of whether or not that means that the Government concede that some types of work make a difference to the assessment. If that is the case, why does the Bill not acknowledge it? With those words, I beg leave to withdraw the amendment.
Baroness Cumberlege: My Lords, with the leave of the House, perhaps I may put right something on which I may have misled the House. I may have said that the panel met on two occasions; in fact they met on one occasion. My noble friend is absolutely right. It was before Christmas, in December 1993. The panel met in two groups, and that is where my confusion lay. It met in two groups because it has 80 members and it would be difficult to meet in a large group and take questions and comments with 80 people in the room. The panel was asked for its help with the detail of the tests but not, of course, the policy.
Lord Swinfen: My Lords, with the leave of the House, for a group of 80 to take questions and comments in this day and age is not all that large. Much larger meetings take place where there are opportunities for questions and comments. I am sure that, with a little initiative and forethought on the right place to meet, the panel could get together. With those words, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.45 p.m.
Lord Wise Lord Wise moved Amendment No. 15:
Page 10 line 20 after ("examination") insert (", by a medical practitioner with relevant training").
The noble Lord said: My Lords, the purpose of the amendment is to ensure that the medical officers who examine disabled people in relation to a claim for incapacity benefit are given relevant training to enable them to carry out their examinations sensitively and to arrive at a fair assessment of the person's capacity to work.
Under the new system, as we know, GPs are to continue to assess people during the first 28 weeks of a claim, but at this stage medical officers employed by the Department of Social Security are to take on an enhanced role. The patient will fill in a questionnaire, the GP will give a diagnosis, and the case will go to the Benefits Agency. The DSS may ask the GP for further clarification, but the GP will not be asked to comment on the claimant's self-assessment nor give his opinion of the ability to undertake any kind of work.
It is this change in responsibilities for assessing capacity for work that leads me to move this amendment. As it stands, the Bill does not contain any provisions on training doctors in making assessments of capacity for work. It specifies only in Clause 5 that a person may be called,
"for such … examination as may be required in accordance with regulations".
This is the case in spite of the enhanced role of the DSS doctors and the diminished role of GPs.
It is crucial that the Benefits Agency doctors are trained not only in the workings of the new incapacity

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benefit but in how to treat the patients who are sent to them, so that they allow them plenty of time to explain their symptoms and how they feel these affect their ability to work.
The National Association of Citizens Advice Bureaux has brought to my attention a number of worrying cases. One bureau had a client who was claiming invalidity benefit and was required by the DSS to attend an examination with a medical officer. She describes the attitude of the doctor as brusque and abrupt. She felt so intimidated that she concealed the pain she was suffering during the examination and as a result spent several days in bed recovering. We must remember that many disabled people have been visiting their GP for years and may feel scared when asked to undergo examination by a stranger. They may well withhold relevant information due to an attack of nerves.
Medical officers must be alerted to the extra sensitivity required in these cases and training must be provided to deal with that. We must remember that the incident I have described, and many similarly distressing cases, took place under the current system, when the GP had more opportunity to protest if he felt his patient had received an unreasonable assessment. I am very concerned that unless DSS doctors are properly trained there will be a rise in unjust assessments of disabled people and a rise in the number of people who are classified as fit for work when common sense shows that they are not. That will mean an overburdening of the appeals system. Training doctors to give sensitive and considerate examinations lasting an appropriate length of time is much more likely to lead to fair assessments of their capacity for work.
I have also seen evidence of unsuitable suggestions by medical officers of alternative work that a disabled person could do—alternative, that is, to their usual work, even though this may be the only work that they have ever done or have ever been trained to do. One bureau has a client, a man in his fifties, who suffers from severe arthritis, poor eyesight, industrial deafness and has no feeling in his fingers. The medical officer suggested that he seek work as a bingo caller, in a snack bar or as a lavatory attendant. Calling numbers out in a busy hall, making sandwiches or cleaning public lavatories would hardly appear to be suitable work for such a disabled person—even if he were to be offered it.
This amendment brings to light other issues which are at the heart of the Bill. Many concerns have been expressed in this House about the new medical test. We are worried that it will be functional, based entirely on medical factors alone, and that it may exclude many relevant non-medical factors; for example, age or experience. I understand the Minister's reason for that. Evidence from citizens advice bureaux around the country shows DSS doctors' dismissal of fluctuations in disability to be a common problem. As was said earlier, there are fluctuations in the severity of pain which may often occur and which are also of an intermittent nature.
This amendment seeks to encourage a partnership between the GP and the DSS doctors. Giving the medical officers proper training will encourage them to use GPs' knowledge of their patients' medical histories.
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None of us wishes to see a further rise in inappropriate withdrawals of benefit due to poor appraisal of a person's capacity for work. A rise in appeals is costly for the taxpayer and for the claimants, who, if their appeal is successful, have to wait for the benefit that is owed to them and who in the meantime are greatly worried by their loss of income.
I welcome the Minister's promise in Committee that Benefits Agency doctors will take account of the claimant's past medical history and the information submitted by the claimant and his doctor. Will she confirm that guidelines and training on this and the other matters I have spoken about will be given to all doctors who are entrusted with the decision on whether a person is fit to join or to return to the workforce?
I urge the Government to accept the amendment, which will help GPs, DSS medical officers and disabled people. It will also help to avert an undesirable rise in appeals. It can only aid the smooth operation of the new system. I beg to move.
Baroness Masham of Ilton: My Lords, this is a very important amendment. The Department of Health's own statistics show that between 1979 and 1992 the success rate of invalidity benefit appeals rose from 21 per cent to 53 per cent. In previous debates in this House and another place we have heard about evidence from the Citizens' Advice Bureaux showing how there has been a further significant increase in recent months.
Poor decision-making by the Benefits Agency Medical Service results in an increase in appeals which in turn leads to unnecessary expense and time wasting. Let me give two examples to illustrate the point.
A CAB in Yorkshire reports the case of a man with severe tinnitus, causing lack of concentration, loss of memory and prolonged periods of sleeplessness at night owing to the barrage of noise. He was called for a medical by the Benefits Agency and at the examination was asked to undress, bend down, touch his toes and so on. Only when he mentioned tinnitus did the condition come up at all. Without any discussion, the doctor dismissed it as disturbed sleep.
A CAB in Northern Ireland reports that, although the medical examination is supposed to last for 25 to 30 minutes, it was found that in practice it sometimes took less than 15 minutes and that the emphasis was only on physical incapacity. That was inappropriate for one client who was suffering from post-natal depression.
Such incidents could be prevented by ensuring that the medical examinations are undertaken by doctors with relevant training. In turn, that would lead to fewer appeals and less wasted expense in the system.
I should like to ask the Minister some specific questions about the training provided to examiners. If she is unable to answer those questions today, perhaps she will write to me with the answers. What training will be provided for medical examiners? In particular, will they receive training to assess the practical consequences of poor health and disability on a person's ability to perform in the work setting? Will the Government arrange for disability organisations to provide their input and expertise as part of the relevant training?

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There is evidence that the standard of decision-making varies considerably from one area to another. Will the Government establish minimum standards for the delivery of service? For example, will they ensure that everyone has been assessed under the new work test by the 28th week of incapacity?
Moreover, for many people the examination process is very intimidating. That point has already been made. Evidence indicates that doctors frequently are bad at encouraging clients to bring out the full implications of their disability or ill health. Will training be provided to address that issue? That is another area in which voluntary organisations have expertise to offer for training.
I reiterate that it is very important that decision-making by doctors should be good, well informed and accurate. Appropriate training is crucial. If that does not take place there will be a huge rise in appeals and backlogs in the system. One would not wish to see a situation such as that which arose with the introduction of the disability living allowance, when claims took many months to process because of delays in the system.
I urge the Government to accept the amendment and ensure that good training is provided and high standards set for the delivery of service by the Benefits Agency Medical Service. That must be good management. There are a great many different disabilities. It is necessary to understand the various disabilities if assessments are to be undertaken successfully and justly.
Earl Russell: My Lords, I have not yet heard the response to my remarks on Amendment No. 12 about the dangers of politicising the medical tests for fitness for work. I have known enough medical people to know that they do not always agree with each other. Nevertheless, the decision on whether somebody is fit for work ought not to be a matter of party political controversy. I know that today most admirably that has not been so. However, were the matter to go outside this House and were this Bill to become law, inevitably those tests would be debated as an issue between the parties.
I understand, from having consulted other people, that practically everybody outside the range of Whitehall simply cannot believe what is being done. I am quite convinced that if the Government go ahead with this allegedly objective test the measure will collapse in the same way that the poll tax and the Child Support Act collapsed. It will happen round about the time of the next election. I would rather not have it happen that way. It calls in doubt too much. It creates too much distrust in the whole political system. I would rather see approaches made to the task of trying to tone down the measure.
It is not often that I recommend to other government departments the practice of the Department for Education and its minions but on this occasion I do so. I have referred before to the test for the university teaching assessment, where again there is a temptation to use an allegedly objective test. That has provoked a
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storm. The Barnett Report produced by the Higher Education Funding Council and published today recommends dealing with the problem by reducing the proportion of the assessment which is done by the allegedly objective test and increasing the proportion which is done by visits. It is just possible, though not yet certain, that that might achieve an element of compromise which will enable the measure to go forward with all-party support.
If there is a route which would enable the tests of unfitness to go forward with all-party support, it is along the lines of this amendment, by increasing the role of the doctor, in particular the doctor with specific knowledge of this specific problem, and by downgrading the share in the assessment taken by the allegedly objective test. If the Government want the Bill and the tests in it to enjoy a general reputation and the results to be accepted as having some approximation to the truth, they will either accept the amendment or institute consultations along the lines that it suggests. If not, this issue will become a party political battle outside the Chamber. It will happen if it must, but I hope that it will not.
Lord Swinfen: My Lords, I should like to take up a point made by the noble Baroness, Lady Masham. She asked my noble friend Lady Cumberlege what training was given to the DSS doctors so that they could properly carry out assessments. In other debates we have heard of doctors in hospitals, sometimes training hospitals, who rarely see people with, for example, spinal injuries. They rarely see people with particular kinds of disability. Some doctors will go through the whole of their career and never come across a case of multiple sclerosis.
Disability is recognised because it is uncommon. It is becoming more common because of the advances of medical science. Even so, it is uncommon among the general public and that is why so many are frightened of it—but that is a different question. Can my noble friend tell the House what specific training will be given to the doctors? Where will they be recruited? Will they be doctors who have come to the end of their careers either as GPs or in hospital and want a little something to keep them occupied in their retirement, at any rate for a few years?
I am not trying to cast aspersions on the doctors. But once we reach a certain stage there is not the same likelihood that those doctors will keep up their training; it will not be necessary. Or will the doctors be recruited from potential GPs who, after moving as locum from one practice to another and being unable to be taken on as a partner, settle down with the DSS because no one else wants them? It is essential that we know what training will be given to the doctors and from where they are recruited to enable us to know that they are up to the job.
7 p.m.
Lord Carter: My Lords, the arguments for the amendment have been extremely well expressed by those who have already spoken. I want to ask just a few factual questions of the Minister. I received, as did other noble Lords, a brief from the National Association of

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Citizens Advice Bureaux showing cases where pressure was placed on GPs by the DSS and many other examples which do not reflect well on either the speed or quality of some of the assessments. It will be helpful if the Minister can say whether the department has made any determination of how many assessors and how many actual assessments there will be. In other words, what is the likely work rate expected of the assessors? How long will they have when they are exercising the clinical judgment to which the noble Baroness referred at Committee stage? At the same time, how many visits to the general practitioner does the department expect the claimant to make? What is the comparison between the involvement of the GP and the length of time that the BAMS doctor will have to make the assessment?
I cannot believe that the DSS does not possess those figures. They are needed to form an assessment of the cost of the Bill and the effect on manpower. It would be extremely helpful to the House if the Minister could tell us.
Baroness Cumberlege: My Lords, I am extremely concerned by the comments made by my noble friend Lord Wise that occasions have occurred when doctors have been brusque and not as sympathetic as they should have been. I understand also some of the criticism made this afternoon. I therefore believe, as do your Lordships, that it is essential that the doctors engaged in conducting assessments should be appropriately trained, especially when we are starting an entirely new system. Not only do the doctors need to be trained, but also the adjudication officers who will make the decisions and apply the tests. And not only do the doctors need to be trained for the examinations but also for the other aspects of the test—for example, the checking of the questionnaire for consistency.
We must ensure that the medical examination is focused principally on determining the incapacitating effects of disability and that functional assessment is documented across a wide range of physical, sensory and mental disabilities. BAMS doctors will therefore be participating in guidance and training courses to equip them both with knowledge of the new benefit and the place in it of the clinical assessment of function and its relevance to the new more objective medical test.
The noble Baroness, Lady Masham, asked specific questions about training, as did the noble Lord, Lord Carter. I suspect that what I have just said is not detailed enough and I am willing to come back with a letter setting out the information in more detail.
The structured training course will deal with the functional assessment of physical, sensory and mental disability and how those relate to capacity for work. The training will emphasise that doctors will be obliged to take account of pain, stiffness and fatigue in reaching an opinion on the effects of the person's functional limitations. Emphasis will also be placed on the importance of fluctuation, variability and relapse in those medical conditions whose nature is characteristically one of instability or variability. In particular, the "snapshot" approach will be strictly avoided. Training and guidance will emphasise that assessments will not be based on performance at the day and time of
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examination. The history given by the claimant and the normal evolution of the specific disease or disorder will be given for consideration.
By the very nature of their training, experience and expertise, all doctors will have gained a knowledge of the effects of disability on the functions of the body and mind. Moreover, they will be well equipped to evaluate physical and/or mental disease, the effects of such diseases and the ways in which those effects may limit function in the individual person. I am glad to say that we have already started the training programme for the Benefits Agency Medical Services doctors who will be carrying out any examinations required.
I can say to both my noble friends Lord Wise and Lord Swinfen and the noble Baroness, Lady masham, that already around half of BAMS sessional doctors are existing general practitioners. There will therefore continue to be a close relationship between the various groups of doctors. The training programme has several elements. There are 200 full-time doctors employed by BAMS, many of whom are general practitioners; all those who will be conducting the incapacity test will be required to attend the training programme. Because of the numbers involved, we had to start early. In conjunction with the Benefits Agency customer services team, we have already contacted a number of disability groups to arrange a pilot series of training seminars and courses for the BAMS staff. Last week a group of about 40 doctors conducted trial incapacity examinations on 500 volunteers as part of the evaluation study. Those examinations reflected the latest developments in the test. The feedback from the doctors who took part will be used to redesign the full BAMS training programme.
I understand the reservations of the noble Earl, Lord Russell, in regard to party political controversy. I share his view that we do not want this to become a patty political matter. I understand that he feels that the system we are proposing will not prove to be a success. We do not share those views. We listened carefully to what your Lordships said in this Chamber in regard to the current system, which was heavily criticised. We feel therefore that the proposal we are putting forward in terms of the medical tests and the training of doctors will be an improvement.
To return to the amendment, I hope noble Lords will be reassured that proper measures and programmes are being put into place to ensure that all those involved in the incapacity assessment—not just the doctors—are appropriately and fully trained. A further, important part of the assessment procedure is of course the guidance for staff; as I said earlier, that will be published.
In view of those comments I hope that your Lordships agree that it would not be appropriate to place this measure on the face of the Bill. I hope you will feel sufficiently reassured to withdraw the amendment.
Lord Carter: My Lords, before the noble Baroness sits down, perhaps I may say that I am grateful to her for offering to write to me with the detailed figures for which I asked. However, I am a little surprised that she does not possess them. The Explanatory and Financial Memorandum to the Bill gives the increase in administrative costs. Apparently, 1,100 additional staff

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will be required for the first two years, reducing to approximately 260 from 1997–98. It will be extremely helpful if the noble Baroness will write to me and place a copy of the letter in the Library to show how many assessors there will be, the estimate of the number of assessments and the time that will be given to those assessments.
Baroness Cumberlege: My Lords, perhaps I may come back on those two points. We expect there to be around 1 million references to the BAMS doctors, which is around the same as there are now. About half of those will be examined. The number of BAMS doctors will therefore be around the same. The length of time taken for an examination will vary from case to case but the average will be about 30 minutes.
Baroness Masham of Ilton: My Lords, with the leave of the House, why does the Minister think it would not be appropriate to write this into the Bill? It seems to be a helpful amendment.
Baroness Cumberlege: My Lords, as I have said, training has already started. It is very comprehensive. I have not given quite the detail that the noble Lord, Lord Carter, asked for—and I shall do that—but we feel it is unnecessary as this work is already going on.
Lord Wise: My Lords, I thank my noble friend the Minister for that detailed response. I must agree with the noble Baroness, Lady Masham, in that I cannot understand why this cannot be in the Bill if training has already taken place. My noble friend said that 50 per cent. of the doctors doing the medical test will be general practitioners. Will they continue with their own practices and just fill in part time with the tests? I do not know. But having said that, we must accept what my noble friend said, that training is taking place and that it will be adequate. I just hope that the sensitivity part of it will be thoroughly explored. It is so important that disabled people are not treated brusquely and abruptly and that full note is taken of their sensitivities and their problems. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 16 not moved.]
7.15 p.m.
Lord Swinfen Lord Swinfen moved Amendment No. 17:
Page 11, line 4, leave out ("197th) and insert ("365th").
The noble Lord said: My Lords, while an amendment debated earlier considered restoring the payment of benefit at 28 weeks, this amendment seeks to delay the application of the all-work test until long-term benefit is payable; that is, 52 weeks. The Bill redefines long-term incapacity from 28 weeks to 52 weeks, delaying the higher rate of benefit entitlement to a full year. As was debated during the Committee stage, people will receive a lower level of benefit between weeks 29 and 52 than is currently the case under invalidity benefit. However, long-term incapacity is now presumed to start after 52 weeks yet the new all-work test will be applied in most cases after 28 weeks of incapacity. This means that people who pass the test will be regarded as incapable
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of all work but not entitled to benefit for a further 24 weeks. That is quite extraordinary; quite, quite extraordinary.
During the Committee stage the Government reiterated that the definition of long-term incapacity is more reasonable at 52 weeks than at 28 weeks. There has been no convincing reason, as far as I can see, for this change. Since the introduction of a separate benefit —invalidity benefit—for long-term incapacity in 1971, "long term" has been defined as 28 weeks both for payment of benefit and assessment of incapacity. "Long term", I know, is a matter of imagination sometimes, but the Government seem to be changing definitions left, right and centre, rather like waiting for a No. 11 bus.
For the first 28 weeks incapacity is assessed against the person's usual occupation. Thereafter, alternative work is considered. This corresponds with payment of invalidity benefit after a period of 28 weeks on sickness benefit or statutory sick pay. While changing the definition of long-term incapacity for the purposes of incapacity benefit, a status quo of 28 weeks remains for severe disablement allowance. This is a long-term incapacity benefit for people without national insurance contributions and is payable in full after 196 days. It is therefore difficult not to escape the conclusion that the Government are choosing definitions which enable more money to be saved rather than genuinely focusing resources on disabled people who are unable to work.
The Government have said that payment of benefit is now to be divorced from the all-work test. The different rates of benefit were designed to reflect the cost of short and long-term periods of incapacity. And, to quote my noble friend Lord Astor, recorded at cols. 101–102 of the Official Report of 19th April:
"They are not in any sense a reward for passing the medical test. The rates 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".
However, it is clearly within the power of the Government to reinstate the link between incapacity assessment and payment of benefit. How will my noble friend the Minister explain to someone who has been assessed as incapable of all work that he will have to wait 24 weeks for him to be paid at the long-term rate? I believe that both my noble friends on the Front Bench have children. They may promise them a pay rise in their pocket money on their 10th birthday but then turn round and say, "But you have to wait another 24 weeks before it will actually come through". That is not quite the same, and in no way would I say that disabled people are the same as children. But it is an example.
In Committee this amendment was moved and withdrawn. In replying to that debate my noble friend Lady Cumberlege referred to case law as determining the point at which an all-work test is to be applied. She said:
"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".—[Official Report, 21/4/94; col. 322.]
Later, in the same column, she added:

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"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".
Subsequently, and again recorded in the same column, she said:
"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".
My noble friend quoted case law which takes it that a period after which someone should be assessed against alternative work should normally be about six months, although there is no specified period. Case law in fact suggests a test of reasonableness. The commissioners have held that it is not normally reasonable in the case of short-term incapacity to expect a claimant to change his occupation. If incapacity is continued it may be reasonable to do so. Therefore, if it is reasonable to change the definition of short-term incapacity, the expectation of what type of job someone can undertake should follow the logic of case law and be consistent with what is defined as short and long-term incapacity.
Case law has not been consistently applied. The Department of Social Security has criticised it for having broadened and blurred the definition of incapacity for work far beyond the original intention. That was stated in a consultation document on the medical assessment for incapacity benefit. The Minister could—I only say "could"—be tempted to have it both ways by using case law selectively to support her claim.
There is no reason to link all work with unemployment benefit. Incapacity benefit will be payable to people who are unable to work because of sickness or disability. It is only right therefore that a longer period of time should be allowed before a person is in a position to consider alternative work. Unemployed people merely need to change their work search and expectations. Disabled people may need considerable treatment, therapy or retraining in order realistically to have the chance of alternative work.
The argument that linking the all-work test and the payment of benefit would discriminate against some people does not appear to have any greater relevance to this amendment than under the provisions of the Bill itself. Some people will go on to the all-work test immediately if they are not in remunerative work in eight out of the preceding 21 weeks. I beg to move.
Baroness Turner of Camden: My Lords, I support the amendment. As the noble Lord, Lord Swinfen, said, it was moved in Committee, but he did not press it to a Division. The noble Lord has gone over the ground in great detail in explaining what the amendment is about. I do not want to cover the same ground. There seems to be a very good case for the amendment.
As we know, the Bill redefines long-term incapacity from 28 weeks to 52 weeks. People in general will receive a lower level of benefit between 29 and 52 weeks than is currently the case with invalidity benefit. We knocked a hole in that proposal to some extent by the victory we had on Amendment No.6. Nevertheless, many people who pass the new all-work test, which will be applied in most cases after 28 weeks of incapacity, will he regarded as incapable of all work but not entitled
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to benefit for a further substantial period. As the noble Lord, Lord Swinfen, said, it seems a little bizarre. I am certain that it will not make any sense at all to the people who come up against the legislation—unless we can somehow change it.
I have looked again at the noble Baroness's reasons for not accepting the amendment on the last occasion. I have re-read Hansard. I do not find what she had to say then acceptable. I really do not see why people are to be disadvantaged in a way which they would not be with invalidity benefit. The only reason which honestly appears to me to be one underlying all this is the desire to save money. I do not find that acceptable. I believe that many of your Lordships do not find it acceptable to have legislation which seeks to save money at the expense of people who are incapacitated for whatever reason.
I agree with the noble Lord, Lord Swinfen, when he says that it is not the same as unemployment. Of course it is not. People who are incapacitated are looking at a very different work situation to that confronting people who are unemployed or who are simply seeking alternative employment if they have lost their jobs. I therefore hope that the noble Baroness will be more sympathetically inclined to this amendment than she was in Committee. I support the amendment.
Baroness Darcy (de Knayth): My Lords, I wish briefly to support the amendment. The noble Lord, Lord Swinfen, who introduced it so ably, said that he felt that it was extraordinary that someone who passes the test of being incapable of all work at 28 weeks nevertheless will have to wait a full year on the lower level of benefit before he or she can be paid the higher rate. I agree. It is very odd when one considers that the Department of Employment has given its full support to a scheme of disability leave, initiated by the RNIB and piloted by a number of major employers including the Midland Bank, Barclays Bank and McDonald's, which recommends that an employee who becomes disabled at work should be given up to a year's leave in which to adapt to the disability and to learn new work and daily living skills required to manage the disability. Insisting that a disabled person is assessed on the all-work test after only 28 weeks undermines the whole concept of disability leave—a concept endorsed by the Department of Employment. I agree that that is extraordinary. As the noble Baroness, Lady Turner, said, I hope that the Minister will look kindly on the amendment.
Earl Russell: My Lords, I too support the amendment. The adventures of someone seeking incapacity benefit might be written up rather like those of an Arthurian knight suffering a series of misadventures one after another. When he gets to 28 weeks he thinks he has stormed the wall of the castle. What he has done is get into the barbican and when he is there he is under fire from all sides. I support the amendment very warmly.
Viscount Astor: My Lords, the noble Earl raises the idea of the Arthurian knight. Under the old rules of invalidity benefit that knight might be told that he was

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then able to do rather bizarre jobs which might not suit him. The whole purpose of the incapacity benefit and the new test is that these things do not happen.
The amendment was previously raised by my noble friend in Committee. As my noble friend explained then, the rate of benefit payable and the assessment of incapacity are two separate issues. The Bill before your Lordships proposes that where a person has had a regular occupation, the all-work test shall be applied at the 29th week of incapacity. Until the 29th week, the own-occupation test will be applicable. This 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 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 to 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. Were we to extend the qualifying period for the all-work test, it could mean that, for example, a diver blind in one eye who was perfectly fit in all other respects would continue to receive incapacity benefit for a whole year before the all-work test was applied. He would clearly be unable to return to his own occupation, but on no basis could he or should he be considered incapable of all work.
The second issue is the linking of benefit rates to the application of particular tests. We have deliberately sought to keep these two areas separate because they are different. It is not the case that passing a certain test brings a higher or lower level 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. This 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.
The all work test is an assessment of capacity to do a range of work—that is, all work—it is not a test of long-term incapacity. The test assesses the extent of incapacity rather than the length of incapacity. My noble friend Lord Swinfen asked how one can relate the three benefit rates: the long-term benefit rate; the short-term rate and the higher short-term rate. I think that we have already had that debate when we considered Amendment No. 1, which your Lordships rejected earlier. We believe that 52 weeks is a more appropriate
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definition of "long-term incapacity". Within the first year of sickness, many people can and often do return to work. After 12 months, return to work is less likely and the benefit structure rightly reflects that. I hope that, with that explanation, my noble friend will withdraw his amendment. I cannot advise your Lordships to accept the amendment.
7.30 p.m.
Lord Swinfen: My Lords, I shall read with interest what my noble friend has said. From what I have understood from listening to him, I am not sure that he has convinced me. He has taken a particularly exceptional case—that of a one-eyed diver. Yes, I agree that a one-eyed diver, working at very considerable depths around the footings of a North Sea oil rig and with the valves on the sea bed, would probably not be able to do his work. However, I would not be at all surprised if during that period of incapacity he did not go diving in the Mediterranean, with his one eye, purely for pleasure—but not at such great depths. I was thinking of rather less specialised forms of industrial injury, such as the case of someone who has a heart attack and who will take some time before being able to return to his own work. If my noble friend, God forbid, were to have a heart attack, he would be off work for, say, six months, but he is a capable Minister and I can see no reason why he should not return to his job after six or nine months.
I feel that I must give the matter more consideration between now and Third Reading and I hope that my noble friend will do the same. However, I reserve the right, having given the matter that extra thought, to return to it on Third Reading. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Astor Viscount Astor moved Amendment No. 18:
Page 11, line 31, at end insert:
("( ) Provision may be made by regulations as to the application of this section in cases where a person engages in more than one occupation or in different kinds of work.").
The noble Viscount said: My Lords, this amendment clarifies the application of the own-occupation test at the onset of incapacity. As your Lordships may realise, we intend that, for the first 28 weeks, a person's incapacity should be measured against his own occupation. We therefore require a definition of "own occupation".
When we looked again at Section 171B, it was not clear whether we had the necessary powers to include certain people within the provision. The amendment ensures that we do have the necessary powers to do so and I commend it to your Lordships. I beg to move.
On Question, amendment agreed to.
Viscount Astor Viscount Astor moved Amendment No. 19:
Page 11, line 33, leave out (", in such cases as may be prescribed,").
The noble Viscount said: My Lords, I spoke to this amendment with Amendment No. 7. I beg to move.
On Question, amendment agreed to.
Viscount Goschen: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begins again not earlier than 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Welfare of Ex-Servicemen and Women
7.35 p.m.
Earl Haig Earl Haig rose to ask Her Majesty's Government: what steps they are taking to promote the welfare of ex-servicemen and women; and whether they will establish a special veterans' unit within a government department to co-ordinate this activity.
The noble Earl said: My Lords, I am glad to have this opportunity to raise some points of concern about ex-servicemen and women. I thank all those of your Lordships who are taking part in the debate, among them the noble Lord, Lord Molloy, who is the national vice-president of the Royal British Legion. The right reverend Prelate the Bishop of Newcastle represents the very strong Geordie ex-service element. The three of us are descended from Sir Hussey Vivian who commanded a cavalry brigade at Waterloo. My noble friends Lord Campbell of Croy and Lord Holderness were both severely wounded in the last war, since when they have been involved in government office and in work for the disabled.
Our system of support for the disabled has stood the test of time since 1st August 1919 when the Select Committee on War Pensions made its first recommendations. Those recommendations were accepted by my father with the words:
"I am prepared to be satisfied—and in any event I recognise that a great advance has been made".
He went on to say:
"The fact that the state has acknowledged what is due from it should not be taken to absolve the individual from doing all that lies in his power to supplement the state's action".
The system has involved a partnership between the Government and voluntary organisations, principally the Royal British Legion which represents the interests of all ranks and their widows from all branches of the Armed Forces, free of charge, regardless of whether they are members of the organisation. On their side, government departments are responsible for providing the compensations and financial support to which individuals are entitled according to financial legislation.
Due to the difficulties of old age which add to the effects of war disabilities, there is an avalanche of new cases for the appeal tribunals to deal with. Not all the appeals are soundly based, but nevertheless they have to be handled by Legion staff, paid for from benevolence money. This year in Scotland there will be a need for a second appeal court and a second appeals officer. All this work is greatly facilitated by the good relationship which exists between the Royal British Legion and the Department of Social Security. The needs of ex-service people are in many ways better provided for than they have ever been. The rates of our pensions compare
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favourably with those in other European countries, at a cost to the taxpayer of over £1 billion per year, now provided through the new War Pensions Agency.
Thanks to generous redundancy payments and good briefing, the effects of Options for Change have not been bad and individuals who are suffering from the change are in the minority. The Triservice Resettlement Organisation provides resettlement advice,. co-ordinates retraining courses and has established a job matching network. In addition, the Officers' Association is playing its part as an employment agency
However, because of the number of different agencies, some co-ordinating body is required. The Royal British Legion has signalled for some time the need to establish a special veterans' unit within a government department, under one Minister with responsibility for ex-service matters who would oversee the resettlement operation. The unit would act as a focus for policy-making and as an advice centre to help people to make the right approaches.
Time has passed since the last war and fewer members of the Civil Service and fewer Members of Parliament (from the Prime Minister and the Secretary of State for Defence downwards) have any experience of service in the Armed Forces. Until recently, most of the civil servants and local authority staff with whom the Legion's people had to deal had served in the forces. In the early years of the Legion my father argued for staff appointments to be given to men who had been wounded or who had suffered in war, Today the situation is different. The awareness of the realities of service life has been lost. One example of a failure to understand because of a lack of personal experience was the Government's recent inability to distinguish between D-Day and VE-Day.
Given the increasing numbers of Second World War people who need help, there is a strong case for a government department to help the ever-ageing, ex-service community to deal with officialdom. Those who are close to ex-service organisations would obviously turn to them for help, but many are not: necessarily connected with the Legion, or regimental or other associations. It is those people who have a myriad of problems ranging from disability to housing resettlement who would benefit considerably from having one agency to which they could speak which would at least understand their problems.
The confusion involved in dealing with several government departments applies not just to the older ex-servicemen and women and widows but to younger people who are leaving the services and who are seeking resettlement in civilian life.
One example of a case which illustrates the need for an ex-service unit is that of the three guardsmen who suffered dreadful injuries and loss of limbs on an exercise in Canada. Their struggle to obtain rehabilitation and appropriate levels of compensation was only successful after years of campaigning, both on their own behalf and by other organisations in the service and ex-service movements. The matter was discussed in Parliament and it was that, coupled with the wide

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coverage in the media, which highlighted their problems and difficulties, that led to some measure of justice eventually being done.
It is our experience in the Legion that no matter how sympathetic is the war pensions Minister to ex-servicemen and their affairs the response invariably is that no funds are available to solve their problems. The Minister who went down really well at one of our conferences was my noble friend Lady Trumpington who spoke at election time and of course was unable to talk about politics. The result was that she made a speech which included some good stories that I dare not quote to your Lordships, but which went down much better than a set speech.
A junior Minister has little clout in those government departments which control government funds. The ex-service community is marginalised unless the various organisations club together in a mass lobby, as happened with war widows' pensions. There would be a greater opportunity to get things right if there were an ex-service unit to co-ordinate action, to investigate problems as they arise, and then to deal with them as sensitively, efficiently, and quickly as possible.
With regard to costs, it is the legion's view that a veterans' unit within an existing department, possibly the MoD or the DSS, would be able to provide the required expertise without the need for a second tier of administration. In the Legion's view there would even be a saving in administrative costs, and a better service would be provided. By having a co-ordinating centre for ex-service matters, individuals would be directed to the right place to deal with them without the shuttling between departments and consequent delay.
The Legion has felt that there should have been closer liaison between the Government and ex-service organisations over the changes in war pensions for noise-induced deafness. The DSS should have consulted the Legion before the announcement was made, if only to give it a chance to challenge it. Another bone of contention between the Legion and the DSS has been the introduction of legislation on smoking. It was easy for servicemen under pressure to become addicted when cigarettes were issued as part of the ration. I remember how many in PoW camps depended upon their cigarettes issued with Red Cross parcels. For some the craving became so great that the contents of food parcels were swopped for cigarettes. Some even resorted to scavenging old cigarette ends which they hoarded and re-used. The Legion felt that the new proposals to exclude smoking as a factor of service has debarred from compensation many with justified smoking addiction.
It is my view that a veterans' unit within a government department would be able to co-ordinate ex-service affairs and to focus support in directions where there is a real need. In that way, the ex-serviceman and woman would have greater confidence than they have at present that their interests are looked after. They feel that the Legion's democratic voice is not being listened to by politicians. They suffer from a sense of injustice. Some way must be found to
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ease the situation. Something must be done, and I hope that my noble friend the Minister who will reply on behalf of the Government will listen this evening.
Let us remember the way in which servicemen and women have carried out their duties over the year. In return, the least that we can do is to give to them the care which they need and deserve. In their turn, those who are given houses and jobs will give to their communities the same comradeship and service as that which prevailed in the forces.
7.45 p.m.
Lord Campbell of Croy: My Lords, in the four minutes available to me, I shall explain one reason why I support the proposal made by my noble friend for a special veterans' unit. The unit should be small and under the wing of one department but in touch with all government departments. Because of retirement ages, there cannot now be, anyone left working full time in government departments who is a World War II veteran.
The need for better understanding was illustrated recently by the sudden and unexpected announcement by the Department of National Heritage that street parties and other local celebrations were to be organised to mark D-Day. That was unexpected because the MoD had already worked out appropriate plans, announced on 6th January by the Prime Minister, for Normandy and the Portsmouth area, where dignified events of thanksgiving and remembrance were proposed.
A veterans' unit could ensure that recent history was recalled clearly and not distorted. For example, 6th June 1944 started a period of anxiety and suspense for most of the British public. A beachhead was being won, but against many hazards, and it had to be held and reinforced by the continuous landings of many more troops and weapons in June and July. The weather would be an unknown factor, and in the event serious delays were caused for several days by stormy sea conditions. As a result, plans had to be modified; our soldiers had to withstand the arrival of fresh enemy armour; and the crucial and intense battles to break out of the beachhead were postponed by a week or more with a high price in casualties.
To recognise the full measure of achievement by Allied forces against the hazards, adversities and tough opponents at least 70 days of hard fighting in Normandy must be recalled. It took more than a month after D-Day to capture Caen, eight miles inland; and the nearby Hill 112, occupied and given up at the end of June, was not finally retaken until nearly four weeks later.
The moment for some relief and satisfaction came when the Normandy campaign ended successfully at the end of August. It was the sweeter because the Allies' rapid advance into Belgium and Holland soon put London beyond the range of V1 and V2 missiles which had first come into action that June.
There were many other D-Days in World War II, several of them later in Normandy and in the North West Europe theatre. That of 6th June was so sensational that it has provided a popular name for the 10-week campaign, "D-Day Landings". That led to an

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impression that the Allied forces all arrived on one day. Even the first leading article in The Times on 21st April stated:
"1 million Allied troops poured into occupied Europe in a single day".
That was more than six times the actual number. The Times was merely repeating a widespread misconception. However, it does not do justice to the fighting men involved or the commanders and staff coping with the difficulties arising from delayed landings. The Times published a short letter from me clarifying the situation —short because the Imperial War Museum, no less, had also written, and its letter, with precise figures, appeared with mine.
An organisation called the Normandy Veterans Association has developed recently, with branches in different parts of the UK. Your Lordships will note that they are not D-Day veterans—they are not called that —because only about one in four of them landed on D-Day. The other three do not want to be treated as if they did too. But they also had notable and perilous experiences in Normandy.
On the subject of casualties, the Allies' D-Day casualty figures were multiplied by 20 by the end of the campaign in Normandy in August. From what I have been saying, it will come as no surprise that the press reports that the Government, at the request of the Normandy veterans, have agreed to postpone any function in Hyde Park until August.
I am sure that the permanent existence of a small veterans' unit would have helped the media during the past year to get their military history right and to keep government departments informed of the feelings of the veterans. That is no reflection on the temporary unit which was set up a year ago in the Ministry of Defence to make and to co-ordinate arrangements for commemorations. It has been doing a magnificent job, but it is temporary. It is totally absorbed in immediately defined tasks.
I hope that the Government will take special care about commemorations for VJ Day. Sometimes our troops in Burma felt that they were a forgotten army. The Burma Star Association and other organisations of veterans can provide their views in good time if they are sought.
7.50 p.m.
Lord Molloy: My Lords, I crave the indulgence of the House. Many of your Lordships have been in the situation in which I find myself tonight; that is, having to be in two places at the same time. Unfortunately, I may have to leave the Chamber early and I hope that your Lordships will understand. Nevertheless, I wished to make an endeavour to support the noble Earl, Lord Haig. His illustrious father created the Royal British Legion and today all members of the Haig family make weekly contributions in some way to assist the Royal British Legion in every part of our land. That should be put on the record and I am proud to be able to do so.
As the national vice-president of the Royal British Legion, I wish to pay my respects to all my colleagues in this House who will contribute to the debate or who have come here today to back us up. I am grateful for
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that too. We in the British Legion have seen so many touching incidents. We have seen people of my own age —in their mid-seventies—who have fallen into difficulties and do not know where to turn. There is one magic phrase and it applies in Scotland, Wales., Northern Ireland and in England. It is: "Why don't you go and see whether the British Legion can help?". Often people come back and tell me, "The most wonderful thing has happened to me since I left the services all those years ago. When I had a difficulty somebody advised me to go to see the British Legion and they worked wonders". My response is, "When are you joining?"
The plea which the noble Earl made today is very important. I do not expect the Minister to give complete and absolute assurances on what the noble Earl and I have said. We know that there are men and women who have served in all branches of our British forces ands who have difficulties. If we could have more access to Ministers via an equivalent of a Minister of State life would not be easier but we could be more efficient on behalf of the members of the Royal British Legion. That is what we are after.
I beg the Minister to give those comments some consideration. I do not expect anything to be done overnight—we know that it cannot—but the noble Earl and I will settle for a reasonable assurance that what has been suggested today is worthy of any government's examination.
7.54 p.m.
Lord Holderness: My Lords, I too am grateful to my noble friend for giving us the opportunity to discuss this matter and I wholeheartedly support what he said, certainly as regards the first part of his Question. I do not imagine that any Member of this House or another place does not believe that the welfare of those who remain must be the first care of the Government. I am glad that all governments, including those in which I played some part, have made that a primary part of their policy.
I remember playing a small part on both sides in the generally friendly relationship between the government and the voluntary organisations. It is therefore of great satisfaction to me to hear an organisation such as BLESMA (British Limbless Ex-Servicemen's Association) expressing great satisfaction with the relationship that exists with the office of my noble friend Lord Astor, his officials and the War Pensions Agency. It has avowed that that relationship has never been better. However, in case my noble friend Lord Astor is inclined to rest on his laurels, I hope that my noble friend Lord Cranborne will point out to him that it could be better still.
For many years voluntary organisations and government have co-operated closely and that co-operation has been fruitful. I hope that my noble friend Lord Cranborne will be prepared to look favourably on a proposal which will make that relationship even more fruitful. I am not asking for a change in what is known as the statutory disregard, but it would be of enormous help to a great number of needy people who are getting quite old if voluntary

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organisations were able to use their considerable funds to provide more help without affecting the income-related benefits to which they are entitled.
With the help of the great organisations—that is, the War Pensions Agency, the War Pensioners Welfare Service, and more recently the Medical Discharge and Resettlement Committee which was established by the Ministry of Defence —I am satisfied that sources of help exist for ex-service people and their dependants. However, I believe that there also exists a communications problem. While giving my noble friend Lord Haig my wholehearted support, I wonder whether the special veterans' unit that he is proposing will be able to clarify the position for ex-service people any more than my honourable friend the Minister for Social Security and Disabled People, in spite of his tireless work, has been able completely to remove all problems of communication in his own field.
Although it sounds less ambitious and uninspiring, I believe that the problem of communication can best be solved by continuing patience, perseverance and persistence on behalf of local authorities, health authorities, the Department of Social Security and a host of other agencies across the country, not forgetting organisations such as the National Association of Citizens' Advice Bureaux. It is there, rather than in my noble friend's chosen instrument, that the possibility of further progress lies.
7.58 p.m.
The Lord Bishop of Newcastle: My Lords, as time presses and each of us has so little time in which to speak, I shall come straight to the subject which I wish to draw to the attention of the House and the Government. It is the matter of war disablement pensions and the discretion allowed to local authorities —for instance, in the calculation of council rents—to disregard the income received by holders of those pensions. I understand that the greater number of authorities exercise their discretion in favour of the holders of war disablement pensions. However, some local authorities do not disregard them, or disregard them only to a limited degree. Not surprisingly, those whose pensions are not disregarded feel a sense of injustice, which rankles for several reasons.
First, those who have been injured in the service of their country surely deserve generous treatment and, if anything, discrimination in their favour; secondly, this matter should not be left to chance, depending on one's place of residence, with some pensioners being lucky and others not; thirdly, the decisions of local councils affect pensioners who are council tenants. Being council tenants, they are likely to be people of modest means. In some instances, they receive very little benefit from their war disablement pensions. Therefore, the problem is likely to be most acute in areas in which traditionally there have been high levels of recruitment.
I am told that some councils would dearly like to be able to disregard those war disablement pensions but find themselves unable to do so on account of the numbers of people involved.
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In all that, I have concentrated on war disablement pensions but similar questions apply also with regard to war widows' pensions and, indeed, all war pensions. At present discretion in those matters lies with local authorities. That works in a way which is manifestly unsatisfactory. The issues need to be addressed by some organ or limb of central government.
The Question before us mentions a unit in a government department for veterans. If there were a unit responsible for the affairs and welfare of ex-servicemen the difficulties on which I have touched would, I am certain, soon be resolved. I submit that that all adds weight to the Question which the noble Earl has tabled for discussion this evening.
8.1 p.m.
Lord Vivian: My Lords, I also support and thank my noble kinsman for bringing this matter to your Lordships' attention. Some of your Lordships will be aware that only a, few years ago, I became an ex-serviceman. Since then, I have been interested in ex-servicemen's affairs. I believe that the Government are to be congratulated on the many supportive systems which have been implemented during the past few years to deal with the great number of servicemen forced to leave the services as a result of the reduction in force levels which stemmed from Options for Change.
Resettlement courses have been of a high standard and are much appreciated. The setting up of the Forces Resettlement Group has been highly successful. Redundancy payments have been fair and welcome. However, there is a feeling among ex-servicemen and women that although a great deal is done for them at their time of departure from the services it seems to tail off rather quickly thereafter.
Some resentment already exists within the ex-service community, not just because the older members of that community are experiencing more difficulty in relation to their wounds as they grow older; not because the younger element have been made redundant through defence cuts, albeit with generous redundancy payments; but because they feel, like many of your Lordships, that cuts have been excessive and that their past sacrifices may have been in vain. They feel that the Government should take a greater interest in individual ex-servicemen or women throughout the remainder of their lives and not just when they are leaving.
Recently I have consulted a number of ex-service organisations and it is true to say that they do not all speak with one voice. Some would welcome one central co-ordinating authority with which to deal, but others are content with the existing system; for example, there is already an efficient and well-run agency dealing with war pension problems, which is highly spoken of and to which your Lordships have referred already this evening. I agree that it would be wrong to become involved in duplication of effort and consequently I believe that it would be beneficial to ex-servicemen and women and their organisations, and helpful to the Government, if one small central co-ordinating authority could be established within the DSS. That could be used as a focal point to feed in all ex-service problems.

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I believe that such an agency would speed up answers to queries on problems and would probably save money in the long term. It would instil ex-service personnel with a greater confidence that their affairs are being attended to promptly and with care.
In conclusion, I should like to bring to your Lordships' attention these points. First, on balance I believe that there would appear to be a need for an ex-service affairs unit to advise, co-ordinate and act as a focal point.
Secondly, the distance in time from a major conflict makes compelling the case for a sub-department or agency to look after ex-service affairs, because fewer members of the public and senior members of government have any experience of the Armed Forces. Furthermore, appeals for help from the wartime generation are growing and are likely to do so for some years to come as those whose lives were blighted by war, through mental or physical injury or both, find those disadvantages seriously exacerbated by old age.
Thirdly, the special knowledge gained and the close contact that would be developed with the other ministries would not only lead to speedier and more efficient resolution of individual problems but would ensure also that important matters affecting ex-service people could be properly aired.
This is an opportunity for the Government to show to the whole country their gratitude to our ex-servicemen and women —young and old. Last Sunday in Hyde Park I attended the 70th Annual Combined Cavalry Old Comrades Parade where a wreath was laid and the "Last Post" and "Reveille" sounded. As always, it was a moving and sad occasion ending with those immortal words,
"We will remember them".
This evening I ask that the Government continue to remember our ex-service personnel and create a small ex-service affairs unit.
8.6 p.m.
Lord Burnharm: My Lords, my noble friend Lord Vivian understates the situation when he says that the ex-service charities do not always think alike. But, generally, they have been pressing for a discrete department to look after "veterans", and we must be grateful to my noble friend Lord Haig for raising the matter this evening. The service charities have not served their cause well by seeming at one time to be pressing for a complete department to look after veterans' affairs and by failing even now to express an opinion in which department of state the unit should be situated.
The wording of my noble friend's Question reflects the now firm statement that it is only a unit within a department which is being sought and there is little doubt that the department concerned should be the Department of Social Security. But whichever ministry it is, it should not be the Ministry of Defence. That body, in effect, ceases to be interested in a man or woman the day he or she leaves the service. From then on it becomes a social matter. But the most important thing is
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that there should be a single place where all the peculiar problems which affect the ex-serviceman can be co-ordinated.
It is true that the ex-service charities are fine ones to talk about a single co-ordinating body. Goodness knows how many members there are of COBSEO—theCouncil of British Serving and Ex-Service Organisations. The Handbook for Nautical Charities, which I published at the. end of last year, lists 44 tri-service charities and a total of 165 for serving and ex-serving members of the Royal and Merchant Navies. Many of them, of course, are local and totally independent, but there is a considerable amount of overlap.
In that context, I must underline that if there is to be such a unit, the welfare of the men and women of the Merchant Navy should not be forgotten. There is no need to underline the value of that service during the war and its affairs, too, should come under the unit's remit.
I would, with respect, query one word in my noble friend's Question; namely, the use of the word "veterans". I know why he has used it. Similar bodies in the United States, Canada and Australia are described as departments of veterans' affairs. But the word gives a misleading impression of the scope of the proposed unit; or I hope it does. "Veterans" gives the feeling of gentlemen in their seventies and over who fought in the war. It is different for the United States, and to a lesser extent, Australia, whose servicemen were involved in the conflict in Vietnam.
Here, many ex-servicemen who may make use of such a unit are not veterans in that sense. Morale is low in the services because of Options for Change, and there are many problems involved in the resettlement of those who are leaving. Accommodation, particularly, curiously, for those who are unmarried, is a major difficulty and retraining, not only for the men themselves but for their wives, which has to begin long before a man leaves, is far from adequate in spite of the efforts of the Royal British Legion at Tidworth and other centres.
Other servicemen leave because of difficulties with their domestic arrangements, their physical or mental well-being or simply because of an inability to get on in service life. The solution of their problems urgently needs a single department where answers to the different situations can be co-ordinated. A service engagement is by no means necessarily long lasting—there is much short service—and those who are affected by its end are frequently young and inexperienced. That is another reason why service life is different to civilian employment.
Even if they have served in Northern Ireland or the Gulf, most of the people affected are still not veterans. Their problems are likely to be different from those affecting the men and women who fought in the war, in Palestine, Korea or Malaya. Most of those are now becoming old with problems which have arisen solely because of their service 50 or more years ago. A noble Lord drew attention to the issue of cigarettes, which were a palliative for all problems.

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However, it is not only social problems that the proposed unit would aid. Many noble Lords have been distressed by the confusion which has arisen concerning D-Day celebrations —affairs which the Royal Navy wish to ignore totally, having celebrated the Battle of the Atlantic in 1993 and preferring to wait for 1995. It is hard to feel that there would have been the same problems if there had been one single unit to co-ordinate the celebrations. For all those reasons, I wish to commend the views of my noble friend Lord Haig to my noble friend the Minister and the Government.
8.12 p.m.
Lord Astor of Hever: My Lords, I should like to support my noble kinsman. As president of the Earl Haig branch of the Royal British Legion I am well aware of the problems faced by the Legion in dealing, and in many cases arguing, with 17 different government departments on a wide range of issues. I would welcome a special veterans' or ex-servicemen's unit as proposed by the Legion. I am convinced that it would not create another tier of government or extra administration but rather that it would improve efficiency.
Many countries have ex-service departments, including the more well-known ones in the United States, Canada, Australia, New Zealand and Russia and the less well-known such as those in Poland and Taiwan. In Europe, France, Holland and Germany have more co-ordination within their administrations and special facilities for former service people, either through a special department or within a subsection of their ministry of defence. Legion people have visited all those countries and found the systems to be working to the benefit of veterans, their dependants and widows and to the advantage of the governments concerned.
I should like to focus briefly on the problems of veterans with noise-induced deafness. As a former serviceman who received a disablement gratuity for Army-related deafness I am very sympathetic to them. The system seemed grossly unfair as present policy is to deny compensation to those whose deafness is assessed at less than 20 per cent. That 20 per cent. is a selective, mean and meaningless figure. A former serviceman with one good ear but who is totally deaf in the other is assessed as less than 20 per cent. deaf, which means no compensation.
Another problem is where the sensory hair cells in the inner ear have been damaged. It is a common disability of my generation for those who have been exposed, without ear protection, to high velocity rifles, especially the SLR. As a result, high frequencies are lost, making conversation in many environments, even in your Lordships' House, difficult and at times impossible. As yet, no hearing aid has been invented solely to pick up high tones. In many cases the sufferer, whatever age he may be, is unemployable. However, if low frequencies are undamaged in those cases, the affliction will be assessed at less than 20 per cent., which also means no compensation. I question why
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former servicemen should be treated in that way. Surely independent tribunals should decide the seriousness of each case.
I must tell my noble friend the Minister that the subject causes resentment. I accept that the limit was introduced for monetary considerations. However, it was done without the opportunity of parliamentary debate. Instead it was discussed with the Central Advisory Committee on War Pensions, whose advice was disregarded.
8.15 p.m.
Lord Dormer: My Lords, I rise briefly to support my noble friend this evening. Servicemen and women have given the best years of their lives in the service of their country. In so doing they have endured hardship, separation from their wives and families and sometimes danger. When they retire they are surely entitled to a reasonable settlement in return to civilian life. I am thinking not only of a financial settlement but also of suitable and generous support in medical treatment for whatever disability they may have incurred during their service lives. From time to time some of us have thought that the provision of such medical care falls short of what might reasonably be expected in the circumstances.
I fully agree with my noble friend that what is wanted is a central body which can list those who suffer from a disability of whatever kind as a result of their service and can co-ordinate medical care for them. The country owes a great deal to its servicemen and women—a fact of which we are all being made aware almost daily. I very much hope that my noble friend the Minister will lend a very sympathetic ear to what has been said in tonight's short debate.
Lord Elton: My Lords, in the few minutes that remain in the gap perhaps I may ask your Lordships to include with the veterans their widows and their families. That would give a voice to some of the smallest groups, including the widows of those officers who retired before 1973 and who get only one-third of their husband's pension instead of one-half and those widows of post-retirement marriages who have little pension if the qualifying service was before 1978 and none if it was afterwards. I am most grateful to my noble friend for the opportunity to say that.
Baroness Strange: My Lords, I should like to say a brief word on behalf of the War Widows Association to my noble friend the Minister. All my ladies are already very devoted to my noble friends Lord Cranborne and Lord Astor. Any closer association that they could have with either of them would be very much appreciated.
8.19 p.m.
Lord Mackie of Benshie: My Lords, I should like to congratulate the noble Earl on the timeliness of the debate. The Government made fools of themselves about D-Day and we trust and hope that they are now searching for something really good that they can do. I believe that the noble Earl has given them the opportunity to agree that here we have a worthy object with which to commemorate D-Day.

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I was interested to hear the noble Lord, Lord Astor of Hever, talk about deafness because I too am deaf. The Government very kindly gave me an award because they alleged that the deafness was caused by flying non-pressurised aircraft. I was very glad to accept both the money and that explanation. Deafness has great advantages on occasions because one can screw off the hearing aid during certain speeches in this House; indeed, in quite a few speeches.
However, I do not want to be nasty to the Government altogether, because I am a member of the war pensions committee. I was most impressed by the work carried out by the committee. The noble Lord, Lord Henley, and the noble Lord, Lord Astor, were the Ministers concerned. I was quite impressed with them, but I was even more impressed by the members of the committee, who are as tough a collection of ex-service babies—if that is the correct description—as I have ever seen. They really knew their stuff. The Minister and his department really had to attend to what they said.
I am also interested in the set-up of the War Pensions Agency. Quite apart from the fact that it has published a glossy leaflet—indeed, every agency seems to—the workload is most significant. The annex to the leaflet refers to the alleged workload for next year and quotes a figure for first deafness claims of 53,000. It also refers to a figure of 34,100 for other other first claims; 32,900 for further/deterioration/invaliding claims; 9,300 for assessment appeals; and a figure of 7,600 for entitlement appeals. We obviously have a tremendous problem which that agency is tackling, I think, rather well. I think that the Government could well emulate this.
It is true that the greatest problem probably is that of the war pensioner who is now reaching an age when he needs more help, and solving it depends very largely on the voluntary bodies finding war pensioners, helping them and telling them where they can obtain the help. I trust that the Government's financial help to these bodies is substantial because they are the people who really will find out about these things.
The noble Lord, Lord Campbell of Croy, bemoaned the fact that civil servants dealing with this matter are now much younger. But as long as there is a House of Lords there will be work for people of our age to stand up to speak for the pensioners.
I finish on the matter of employment for people who are made redundant from, or who come out of, the services for various reasons now. In that case the service departments must busy themselves and set about arranging proper training to enable these men and women to find jobs. There is nothing worse than coming out of the services and being totally disowned and not knowing how to go about finding work or where to find it. I believe that to tackle that situation would be an admirable first step for the Government.
8.21 p.m.
Lord Williams of Elvel: My Lords, the House will be grateful to the noble Earl, Lord Haig, for asking this Question. It is a matter of great importance, as the House will recognise, and I for my part am grateful to him. I am also, if I may say so, grateful to the noble Earl
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for sending me some remarks that he was going to make because it allowed me to consider my response and indeed to discuss the response that I might put to the House with my colleagues in another place.
We have a very great deal of sympathy with the thrust of the Question that the noble Earl has put to the Government. There is no doubt that we should honour and protect those who have fought gallantly and the dependants of those who have fought gallantly for Her Majesty and the United Kingdom. I do not think there is any doubt in your Lordships' House that that is a principle which we must observe. Having said that, I join with the noble Earl, Lord Haig, the noble Lord, Lord Campbell of Croy, and indeed the noble Lord, Lord Mackie of Benshie, in saying that I regret, and I regret it very seriously, that the Government seem to have mixed up D-Day with VE-Day—D-Day is an occasion on which fighting men and women performed certain functions and VE-Day is the day when we should all rejoice in reconciliation, and we should have whatever spam fritters we want, but we should have parties. I regret very much that the Government seem to have mixed up the two.
There certainly is a need for better co-ordination to deal with the many areas of interest to ex-service personnel. This is particularly true, if I may say so, at a time when the rather haphazard nature of defence planning under this Government has led to a good deal of confusion and uncertainty. There is concern about the complexity of the benefits system and what I can only regard as the jungle of rules and regulations that can apply to an individual case. I join with the noble Lord, Lord Astor of Hever, and the noble Lord, Lord Mackie of Benshie, in regretting the decision to restrict the compensation available for noise-induced deafness arising from service in the forces without adequate consultation—this is the point. That is just one example of how the Government do not seem to take on board this problem.
But having said that, there are difficulties, in our view, with creating an entirely separate Department of State, as some have argued for, overlapping many existing ministries. We are considering setting up a special unit within the Ministry of Defence, with a specific Minister, to look after all questions relevant to ex-service personnel in that department. Such a specific ministerial appointment would give, in our view, status and new authority to these issues. Under the Department of Social Security the new War Pensions Directorate has just been established and we hope it will give a more focused and efficient service to ex-service personnel and their families. Nevertheless, while we are. still in Opposition, we shall continue to monitor what the Government are doing in this respect, and when in government we will not hesitate to take further action as and when that is necessary because., as I hope the Minister when he comes to reply to this Question will understand, this is not an issue which should be taken lightly, particularly in your Lordships' House.
8.26 p.m.
The Parliamentary Under-Secretary of State, Ministry of Defence (Viscount Cranborne): My Lords, my noble friend Lord Haig has indeed, as many of your Lordships have recognised this evening, done your Lordships' House a considerable service in raising this Question this evening. I think I can say without fear of contradiction that every Member of your Lordships' House would insist that former servicemen and women deserve to be honoured by their country and that they should feel that part of being honoured is being treated fairly by the nation.
Indeed, the formidable and knowledgeable case made by your Lordships this evening, particularly by the manifold sprigs —if I may put it that way to my noble friends—of the Haig family, whose devotion to this particular cause I think all of your Lordships greatly admire, demands, as the noble Lord, Lord Williams, has already said, that we take this Question extremely seriously. I can assure your Lordships that that is indeed what we in Her Majesty's Government do. However, I have to say to my noble friend Lord Campbell of Croy, in spite of his assertion to the contrary, that I for one would very much doubt that the existence of a department of veterans' affairs, or even a special unit within either the Department of Social Security or the Ministry of Defence, would have made much difference to what was proposed for D-Day.
I have, as the Minister to whom matters concerning former servicemen fall within the Ministry of Defence, received and answered many hundreds of letters over the past few months from members of the Royal British Legion advocating the establishment of a department of veterans' affairs. Of course I greatly welcome this further evidence, if any indeed were needed, of the assiduity with which the Royal British Legion pursues the interests of its members, as indeed do many other ex-servicemen's organisations. I very much take the point made by my noble friend Lord Burnham. We value their advice and esteem the work they do. Indeed, we would always want to ensure that we kept open the channels of communication between the Royal British Legion and my department.
However, I must confess to a mild degree of scepticism, however much I would wish to follow your Lordships in everything that you suggest to me, as to how effective the Royal British Legion's proposal would be in improving the existing lot of servicemen and women, to say nothing of the practical difficulties of arranging the administration and legislation to make it work. Equally, my noble friend's rather more modest proposal may, I suspect, be open to the same sort of objections, if on a rather more restricted scale.
If your Lordships will allow me, I would like therefore to take advantage of the opportunity my noble friend has so kindly given me to set out Her Majesty's Government's position. Indeed I am particularly delighted that my noble friend Lord Haig recognised the efforts that the Government have made, particularly of late, in this field.
Much is often made in discussions on this important subject of the fact that other countries have departments
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of what they often call veterans' affairs or units of the kind that my noble friend advocates. Your Lordships will be aware that such departments tend to concentrate on providing medical services to ex-servicemen, but not exclusively. The trend in this country is exactly the opposite, as your Lordships will be aware. Indeed, we try to make sure that ex-servicemen and their dependants have full access to the health and social security services available to the population at large. That is, I would submit, a practical approach and there is a further reason for adopting it which, with your Lordships' permission, I should like to come to in a minute.
That is not to say that we do not recognise that ex-servicemen and women have special needs. Those needs are many and perhaps I may give your Lordships a few examples. The House will observe from their wide range that the Government already have in place substantial administrative arrangements which can be and have been enhanced or adapted for ex-servicemen and which it might be less effective to attempt to duplicate.
The example that perhaps evokes our greatest sympathy, and to which many of your Lordships referred, is the example of the disabled ex-servicemen. Noble Lords will know that the Government have not only preserved the preferential provisions of the war pensions scheme but have also done much to enhance it. Despite a considerably increased workload, performance in dealing with claims has improved and the War Pensioners' Welfare Service continues to provide a comprehensive service for war pensioners and their dependants. I am glad that so many of your Lordships paid tribute to the work of the War Pensions Agency, which aims to provide an even better service to war pensioners as a special group of customers.
My noble friend Lord Astor, the Minister with special responsibility for war pension matters, regularly meets and consults the Central Advisory Committee on War Pensions. He also meets representatives of local war pensions committees, and, needless to say, my noble friend and I liaise closely on these matters.
I should also like to confirm that the long-standing arrangements which enable war pensioners to be given priority when referred to the National Health Service for treatment of their pensioned disablements still apply, subject of course to the needs of emergency and other urgent cases.
To take another example, we are committed to ensuring that personnel leaving the services make a smooth transition to civilian life, to take the point made by the noble Lord, Lord Mackie. This was recognised by my noble friend Lord Vivian, and I was grateful for what he said in that respect. My department has explained to employers the many qualities that service leavers have to offer as employees. This has been supported by a number of initiatives which have resulted in many offers of job opportunities for service leavers.
All service personnel undergo a varied and extensive training programme. We provide comprehensive resettlement advice and support and an extensive range of briefings and training courses which incorporate

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arrangements for on-the-job training and the introduction of non-vocational qualifications. Those are elements of what I hope your Lordships will consider a comprehensive package, particularly as it includes encouragement of home ownership within the services and help for those leaving, including a new services home saving scheme and a focus for housing advice for all serving personnel and ex-service personnel who are still in married quarters. I could give other examples if time permitted.
I submit, even in the face of some of the remarks which have been made this evening, that liaison with other government departments is the right approach on this important subject. By bringing other government departments into the process rather than isolating them from servicemen's affairs, we can ensure that they appreciate the particular difficulties of servicemen and women as they try to adapt to civilian life. A new department, even a new focus devoted exclusively to ex-service affairs, could not resolve all the problems experienced by service personnel. It would be more likely to be simply a post office, passing on inquiries to those authorities, such as the War Pensions Agency and local authorities, which exist to deal with such matters directly. Despite what my noble friend said, such a department would risk adding another tier of administration to the present system and would undermine the new initiatives to which we attach considerable importance
Finally, there is a more general point that I should like to make which underpins our entire approach. As the proportion of the total population which served in the Second World War and subsequent campaigns, or indeed did National Service, diminishes—which is a point to which a number of your Lordships referred—and as the size of the services themselves reduces, we must ensure that the Armed Forces do not become isolated from the rest of our people. The history of some other countries contains examples of the problems which may arise if that happens. That is a point to which your Lordships attach importance, as I discovered when answering a recent Unstarred Question in your Lordships' House about the future of the cadet forces. Setting up machinery to deal with veterans' matters separately and exclusively may risk isolating ex-servicemen from the rest of society at a time when we are anxious that serving servicemen and women should be seen as part of national life.
It is for that reason, and the practical ones that I have mentioned, however fleetingly in view of the time constraints, that I firmly believe that welfare provision for the ex-service community should continue to be integrated with that for the nation as a whole and that our existing approach is a more practical and effective one. Of course, as your Lordships have observed, there is always room for improvement. I acknowledge that in this case there is certainly room for improvement. But I am convinced that the fundamental approach that we have adopted is a sensible one. I commend it to your Lordships' House.

Social Security (Incapacity for Work) Bill
8.35 p.m.
Consideration of amendments on Report resumed on Clause 5.
Lord Swinfen Lord Swinfen moved Amendment No. 20:
Page 11, line 40, leave out ("such larger number of weeks as may be prescribed") and insert ("two years").
The noble Lord said: My Lords, the purpose of the amendment is to introduce an incentive for claimants to try out employment and thus move off benefit by allowing for spells of incapacity for work not separated by a period of more than two years to be treated as one period of incapacity for work. This is a similar amendment to that dealt with at Committee stage on 19th April which was withdrawn.
The Department of Social Security Research Report No. 19 entitled Invalidity Benefit: A survey of recipients by Lonsdale, Lessof and Ferris showed that the increase in the caseload is a result of people spending longer on invalidity benefit rather than an increase in numbers claiming for the first time. Over three-quarters of the long-term invalidity benefit recipients surveyed no longer saw themselves as attached to the labour market. The amendment is directed at long-term recipients and would encourage individuals to try out employment and move off benefit altogether.
Many individuals are wary of moving into employment through the quite understandable fear of not being able to cope with work and consequently having to requalify for long-term benefit, which would cause considerable financial loss. Incapacity benefit, with its longer qualifying period for long-term benefit, is set to compound that problem further and act as an even greater disincentive to those who may have considered employment.
During debate in Standing Committee E in the other place on 17th February this year, the Minister set out some of the drawbacks to linking rules. He said that it was the administrative burdens placed upon employers in terms of extensive record keeping and checking that raised the most concern and that to extend the linking rule from eight weeks to two years would increase the records and the time checked by employers. The Department of Social Security and personnel managers ought to be able to identify a way of keeping employee and benefit records which would make accessing such information more straightforward, particularly with the increasing introduction of computers.
When we considered the amendment on 19th April—and also in the other place—the Government responded by saying that the linking rules play art important part in many areas of the social security system, not just incapacity benefit. The interaction between those areas is very complex. The Government needed to be sure that by changing rules in one area of the system anomalies were not created elsewhere. The Minister of State for Social Security had said in Standing Committee E in another place that in the long term he would look carefully at the whole question of linking rules.
The Government have said that eight weeks is a reasonable length of time in which a person can test his

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or her ability to work. I feel that it should be longer. They also say that other means exist to help with attempts at paid work—for example, DWA—therapeutic earnings and voluntary work, both of which we shall come to later. The Minister said that he would look again at the issue most carefully. I have not heard much of the results of that reconsideration of the matter, but I hope to do so from my noble friend this evening.
Eight weeks is not long enough for someone to try out work. In such a short period of time a person would hardly have a chance to take a long-term view. One should bear in mind that six months is the usual length of a probationary period in any job. Because of the rules associated with the existing back to work benefit, disability working allowance, in particular the harsh means test, is unlikely to be of much assistance. It is basically designed for people on low wages, whereas a more generous linking rule would not have such a restriction.
The disability working allowance, which introduced the two-year linking rule, is not a solution. Its introduction in 1992 has had little impact on invalidity benefit numbers. That is borne out by the most recently available statistics, which cover the period from March 1992 to 30th December 1993. In that period there was a total of 32,749 claims for disability working allowance. Of those claims only 5,185 have resulted in awards. The large number of unsuccessful claims could be read as an indication of desire to move off invalidity benefit and into employment.
The linking rule used to be 13 weeks before legislation in the early 1980s reduced the period to eight weeks. I think that we should go back to a longer period. I beg to move.
Earl Russell: My Lords, the amendment is particularly important for those who seek to make their way back to work after recurrent illnesses. One often does not know whether such illnesses will recur again. If they do, one does not know whether they will recur for a short time, enabling one to resume work fairly shortly, or whether they may recur for a much longer period. If every time the illness recurs one has to re-qualify oneself, it is a serious deterrent to going back to work. Putting deterrents in the way of people going back to work is not in the public interest. The central objective of public policy ought to be to make it easier, rather than harder, for people who wish to work to do so.
I have mentioned already this evening a letter that I received from the chair of the North London branch of the ME Association. She was concerned that the new linking rule is likely to deter sufferers from ME from taking the risk of going back to work. The same applies to many varieties of mental illness. Such illnesses recur unpredictably. For example, schizophrenia may recur almost without warning just because on one evening when there was a lot going on the person forgot to take his pills.
I once had a postgraduate pupil who had had the misfortune to suffer from Crohn's disease and had taken her finals, quite unbeknown to herself or anyone else, while at the worst of it. She naturally was able to work
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only intermittently. So long as I understood that, there was no problem. The work progressed. It took twice the normal time but it was extremely good work and is now in print. However, had she been facing a regulation which meant that she had to re-qualify herself every time the Crohn's disease recurred—as from time to time it did, sometimes only for a day or two, sometimes for several weeks—she would have been in acute difficulties. It is the kind of provision which will make people in such a position not take the risk of going back to work but stay on benefit, where they feel that they can be safe. That really is not in the public interest.
We have heard talk about saving money. The noble Lord, Lord Boyd-Carpenter, is not in his place. I hope he is aware that I do not in the least object to the need to save money, but I believe that it can be done intelligently, and sometimes humanely. With this provision we have a case where even from the Treasury's point of view humanity is the best policy.
Baroness Turner of Camden: My Lords, I support the amendment. The purpose is clear: it is to try to provide an incentive for claimants to move off incapacity benefit by allowing for spells of incapacity for work not separated by a period of more than two years to be treated as one period of incapacity for work. I understand that that is the case with the disability working allowance. As we have heard, a similar amendment was moved in Committee. I have read Hansard again and, frankly, I do not find the Minster's response very acceptable. As noble Lords who have spoken in the debate have said, the whole idea is to ensure that people are encouraged to risk themselves, so to speak, on the labour market again. That can sometimes take quite a bit of courage, in particular if the individual has been badly incapacitated, possibly as a result of an accident. He or she may not wish to risk starting a job which they fear they might not be able to hold down if they know it means coming off benefit and then having to requalify with consequent financial loss if they find that they cannot manage the job they have taken on.
With its longer qualifying period, the new incapacity benefit in the Bill could act as a disincentive to those who might otherwise risk taking a job. Claimants might also not have sufficient confidence in their ability to cope. There was no Division on the amendment in Committee. We now have the opportunity to debate the issue again. I agree with what has been said by the noble Lord, Lord Swinfen, and the noble Earl, Lord Russell, about linking rules. I hope that this time round the Minister may be prepared to take a much more sympathetic attitude to the amendment than was taken in Committee. As has already been said, it may ultimately be in everyone's interest and may cost rather less than the Government think it will. I support the amendment.
Baroness Cumberlege: My Lords, the amendment alters new Section 171B(7) (b), which applies to Section 171B(3) and deals with spells of incapacity in the own-occupation test. The overall effect of the amendment is to make more difficult the position of people who fall into certain prescribed categories and

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who have two spells of incapacity separated by more than eight weeks. The manner in which the amendment achieves its effect is rather complicated, so I ask your Lordships to bear with me while I explain.
Section 171B(7), which this amendment seeks to change, allows exceptions to be made to the definition of a spell of incapacity in certain prescribed cases. We envisage this section benefiting those who are undergoing kidney dialysis or chemotherapy, for example. Section 171B(7) (a) allows relaxation of the rule that a period of incapacity must be four or more consecutive days, and Section 171B(7) (b) allows suspension of the rule that spells of incapacity more than eight weeks apart cannot be linked.
This amendment has two main effects, one of which is intended to be beneficial, and one of which is, we assume, unintended and is detrimental. Both relate to the application of the tests of incapacity; neither has any effect upon rates of benefit.
As your Lordships know, the own-occupation test will apply in most cases for the first 196 days of a person's incapacity; during this period the person's capacity for work will be measured in terms of his ability to perform his own job. Thus, if a person is too sick or disabled to do his regular job, he will be entitled to incapacity benefit. Normally, a spell of incapacity is to be defined as four or more consecutive days of incapacity, and two spells of incapacity separated by not more than eight weeks can be counted as one. This means that if the own-occupation test applies to a spell of incapacity it will continue to apply if there is a second spell within eight weeks of the first.
Section 171B(7) (b), which we are discussing, allows the eight-week rule to be suspended in certain cases. We were envisaging the case of a person who was undergoing treatment for the same illness at long-separated intervals, perhaps chemotherapy every 10 weeks. In such a case we would wish to treat the person as continuing in one spell of incapacity even though the actual spells were separated by more than the standard eight weeks. For, clearly, the spells of incapacity are linked in those circumstances.
At the moment we do not intend to make any regulations under this power, as such people are covered elsewhere. But it may be the case that we will wish to deal with other particular special cases in the future.
The desired intention of the amendment must be, we think, solely to extend the period for which the own-occupation test applies. It, in fact, has two effects. I shall come to the second later. In terms of extending the applicability of the own-occupation test, the powers of Section 171B(7) (b) allow regulations to be made which extend the eight-week rule to an indefinite period. This amendment serves to limit the link to two years.
However, we wish to have a flexible power for the prescribed cases. We may wish the linking period to be much shorter or longer than two years. It is hard to imagine a condition which would require treatment at more than two-year intervals, but we may need to provide for such an occurrence. It may be the case that we wish only to extend the eight-week linking rule to 10
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weeks in a particular case to fit in with certain conditions. In such circumstances, a fixed two-year link would be unnecessary.
The amendment thus introduces an element of inflexibility into the special extension of linking rules for prescribed cases. We have provided a power to extend the eight-week rule and have left it deliberately flexible and vague. The Bill refers to,
"such larger number of weeks as may be prescribed".
The provision is intended to deal with unusual conditions which will require a flexible response. It would simply not achieve our intention and not be helpful to put in place a fixed two-year rule for these prescribed cases.
Baroness Hollis of Heigham: My Lords, I thank the noble Baroness for giving way. Can she say how many people in the past have benefited from that regulation? We discussed it in Committee and the noble Viscount, Lord Astor, was kind enough to write to say that the period could be extended in certain circumstances. However, I was not aware how often people had taken advantage of the provision. If it is part of the Minister's case that the necessary flexibility is already enshrined in law, can she tell us how often it has been used?
Baroness Cumberlege: My Lords, I do not have the figure here, but if it is possible to answer the question I shall let the noble Baroness know.
As I said earlier, the amendment also has a detrimental effect which I cannot believe is intended. The Bill at present enables two periods of incapacity separated by less than eight weeks to be treated as one spell of incapacity for the purposes of the own-occupation test. This means that the own-occupation "clock" of 196 days does not restart if a person's second spell of incapacity begins less than eight weeks after the last spell of incapacity. For example, when someone falls sick he has 196 days of incapacity ahead of him where the own-occupation test applies. But people are often sick for a while, recover for a while, and then relapse. Therefore, we have made provision in Section 171B(3) that if a person is sick for 12 days, returns to work for 12 days, and is then off sick again, the two periods of sickness shall count as one. This means that the person in the example, when he falls sick the second time, will be eligible for the own-occupation test for only 184 days. This is because the previous 12 days of incapacity are counted towards his current: spell of incapacity.
However, this provision only applies where the two periods of sickness are separated by less than eight weeks. If the two spells of incapacity are more than eight weeks apart, then the own-occupation "clock" restarts with the second spell of incapacity. To give another example, if a person is sick for 12 days, returns to work for 10 weeks, and is then sick again, the second period of sickness is treated as a new spell of incapacity and he has 196 days ahead of him where the own-occupation test will apply.
The amendment seeks to reverse the position. Its effect would be that two spells of incapacity separated by two years or less would be treated as the same spell. Therefore, our example of the person who was sick for

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12 days, returned to work for 18 months and fell sick again, would only be eligible for 184 days of the own-occupation test the second time he fell sick. Our intention is that he should, when he falls sick the second time, if he is eligible for the own-occupation test, have a full 196 days of the test ahead of him. I cannot believe that your Lordships intended this effect. The Government's position, achieved through new Section 171B(3) in the Bill is more generous than the proposed amendment.
The amendment applies only to the prescribed categories in Section 171B(7). I am not sure why. It is misguided for several reasons. First, it attacks the position of those people who fall into certain prescribed categories by limiting their special arrangements to a fixed period. Secondly, it abolishes all flexibility in a power introduced specifically to permit flexibility in certain cases. Thirdly, it applies the all-work test to people whom we wish to be subject to the own-occupation test, and applies the own-occupation test to those who, we believe, should be subject to the all-work test. So I trust that my noble friend will withdraw his amendment.
Lord Swinfen: My Lords, before my noble friend sits down, she has given a comprehensive but extremely complicated reply. Would she be willing to meet me and my advisers between now and Third Reading to discuss the matter? It would be much better if we could discuss it together and possibly combine on an amendment which suited both the Government's and my purposes. At the moment we are trying desperately to do our best for disabled and chronically sick people from opposite ends of the spectrum. If my noble friend would be willing to meet me and my advisers, I might then be minded to withdraw the amendment.
Baroness Cumberlege: My Lords, I shall be delighted to do as my noble friend suggests. I believe that we have already agreed a meeting on another matter, so I am prepared and willing, perhaps with other Members of your Lordships' House, who wish to do so, to discuss this topic also.
Lord Swinfen: My Lords, I thank my noble friend for the offer, which I very much appreciate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Test of incapacity for work: supplementary provisions]:
Lord Zouche of Haryngworth Lord Zouche of Haryngworth moved Amendment No. 21:
Page 12, line 33, at end insert:
("(3) Regulations may provide for a person to carry out work as an appointee on a public body or committee and that the person shall not be treated as capable of work by reason of his doing such work.
(4) Where the net amount of any allowance to which a person is entitled by virtue of the work prescribed in subsection (3) above in respect of any week exceeds such amount as may be prescribed, an amount equal to the excess shall be deducted from the amount of any incapacity benefit to which he is entitled in respect of that week, and only the balance remaining (if any) shall be payable.").
The noble Lord said: My Lords, this amendment follows on from the one I moved in Committee. It will ensure that regulations are made to enable people to work on a public body or committee without it affecting their entitlement to incapacity benefit. It also provides that any allowance payable to that person is treated in the same way as a councillor's allowance under the provisions of the Bill.
We had a wide-ranging debate in Committee and I do not feel it necessary to go over the same ground again. I was glad that the Minister was able to tell us that his department was continuing to look at the necessary arrangements for implementing my proposal. He said that he would be in a position to announce the outcome at Report and I look forward to hearing what he has to say. I believe that my amendment would introduce into the Bill the necessary provision to make regulations on the matter, and I hope that he will accept my amendment.
On behalf of all disabled volunteers, I warmly welcome the Government's announcement that the concession for people on incapacity benefit to carry out up to 16 hours a week of voluntary work without it affecting their entitlement to benefit will be extended to existing claimants on invalidity benefit from 16th May. I thank the Minister. It will mean a great deal to many disabled people.
An outstanding issue for disabled people is acting as a member of a public body. The amendment would allow disabled people to work on public bodies and committees without it affecting their entitlement to benefit. With regard to any remuneration received for that work, it would put disabled people on such bodies in the same position as councillors whose allowances are disregarded for the purposes of incapacity benefit. The changes would be nil cost measures and would ensure that disabled people are able to represent the interests of the disabled on user bodies and committees without affecting their entitlement to benefit.
The Bill already provides for councillors to carry out their duties without affecting their entitlement. During Committee stage in the other place the Minister of State announced that the disregard for members of disability appeal tribunals would be extended to disability living allowance advisory board members. I welcome that, but believe that the disregard should be extended to cover the wealth of committees which benefit from the input of a disabled person. Such committees are wide ranging and incorporate work at local, regional and national levels. They include school governing bodies, community health councils, boards of voluntary organisations, advisory bodies dealing with agriculture, food, the environment and trade and certain public corporations, for example, the BBC and the British Council.
During the Committee stage, the work of a number of public bodies and different types of committees was mentioned as of relevance. Many of the voluntary organisations which support the amendment have disabled representatives on management and executive boards. They believe that it is imperative that members of such boards should be able to continue their work without fear of losing their entitlement to benefit. There

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is a very wide range of bodies from local and regional bodies to national institutions which will benefit from such an input. I hope that the Government's proposal will cover the breadth of interests.
The public appointments unit provides information on public bodies. There are over 40,000 public appointments, most of which are part-time, one or two days a month, and unpaid, although travelling and other expenses, such as child care, are paid for. The skills required vary considerably from one appointment to another. A disabled person has a special input as a disabled consumer. But he or she may also have other experience as a result of job experience, such as accountancy and organisational skills. That also should be accounted for in the Government's proposals. We should not wish the regulations to require that it is only the person's experience of disability in which a committee or body is interested. It may be primarily interested in that person's contribution as an educationalist, accountant or whatever. His disability is secondary to that.
The second part of my amendment is important as it clarifies the position of any allowance that a person may receive for his work and how it will affect his incapacity benefit payments. I simply provide that allowances are dealt with in the same way as for councillors. That seems eminently reasonable and in line with government thinking.
I should like to return to a point made by my noble friend the Minister at Committee stage that is causing some concern to the voluntary organisations which support the amendment. He said that:
"claimants will he able to earn up to £42 per week if their doctor considers that the work they undertake is therapeutic".—[Official Report, 19/4/94; col. 159.]
I hope that he does not think that committee work is akin to therapeutic work. It is not in any way connected to such work. Quite apart from the fact that therapeutic work is restricted to 16 hours a week, work on committees means contributing to a decision and policy-making for the public good. A person does not do it for therapeutic purposes and any allowance payable should not be treated in that way. It seems that the right way to deal with it is as provided for councillors, Why should not user representation be treated as of equal importance to councillors' work?
To sum up, representation by disabled people on the whole range of public bodies and committees is acknowledged by everyone to be beneficial in every respect. I know that the Government wish to do all that they can to promote user representation. I hope that my noble friend the Minister will give the House a positive response to my amendment today. I beg to move.
9 p.m.
Lord Wise: My Lords, I should like briefly to support my noble friend's amendment. Disabled people can bring great experience and expertise to many aspects of voluntary arid community work. There are many committees on which they can usefully serve. Indeed, their contribution can considerably enhance the performance of the public bodies or committees on which they sit.
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My noble friend the Minister said at Committee stage that councillors' work has a particular importance and that there is a need to ensure that claimants can undertake such duties if they wish to do so. However, not everyone can be a councillor. Surely work on public bodies and committees is of equal importance. I feel that the power to disregard capacity for work as a councillor should be extended to those duties.
It cannot be right for disabled councillors not to have their incapacity for work questioned when disabled people sitting on similar bodies are in danger of losing their benefit. Surely a disabled person should be able to sit on a public body without his entitlement to incapacity benefit being affected. As my noble friend Lord Zouche said, any payment that they receive should be treated in the same way as payment for work as a councillor is treated under the Bill. I hope that my noble friend the Minister will look favourably upon the amendment.
Lord Swinfen: My Lords, I should like briefly to support the amendment as I put my name to it. Two of my noble friends have spoken to the amendment with regard to the experience of disabled people as disabled people. But let us not forget that many disabled people had qualifications before they became disabled. They can still bring those qualifications arid the experience obtained through those qualifications to voluntary work and councils, coupled with their additional experience of disability.
There are people who are disabled and unqualified in any other way who bring great experience of disability. There are those who are qualified in other ways—people like myself, a chartered surveyor—who try to bring that experience to help disabled people. But I probably would be able to bring to the work a better experience of surveying and buildings as a surveyor and as a disabled person. There are others who have experience of engineering, accountancy and banking. People can bring to bear all sorts of experiences and skills, coupled with their disability. The fact that someone becomes chronically sick or disabled does not mean that they lose that experience and those skills and we should allow advantage to be taken of them.
Baroness Darcy (de Knayth): My Lords, my name is attached to the amendment, and I thoroughly support it for the reasons given by other speakers. I hope that we hear something encouraging from the Minister.
Baroness Hollis of Heigham: My Lords, we too wish to be associated with the amendment. Disabled people have a contribution to make from their experience of their disability. We feel that the committees on which they serve will benefit from that experience and the community will be enriched. We hope therefore that the Minister will give us warn words this evening.
Viscount Astor: My Lords, when we discussed voluntary work in Committee I said that my right honourable friend the Minister for Soda] Security and Disabled People was considering whether current arrangements should be extended to other specified

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bodies and organisations. It may be helpful to your Lordships if I set out how we propose to take this matter forward.
We recognise the value of voluntary work, both for the individual concerned and for the organisations involved. That is why we propose that incapacity benefit claimants can undertake up to 16 hours per week voluntary work without any effect on their entitlement. I want to stress that undertaking such voluntary work will not raise the question of the claimant's capacity for work. We already have the necessary powers in Section 171D of the Bill to make regulations to ensure that that is the case. We want the provision to apply as widely as possible. We therefore intend to make regulations to ensure that the voluntary work provisions apply to any voluntary work undertaken by any claimant for any public body, committee or advisory group; that is, not just voluntary bodies or charities and not only those groups which consider issues relating to disability. I hope your Lordships will welcome that.
I realise, however, that that does not go as far as the amendment which has been tabled in the name of my noble friend. What I set out applies to voluntary work whereas the amendment seeks to ensure that people could receive remuneration for the work that they undertake. I am afraid that I cannot accept that. The reason is that the amendment would allow those on incapacity benefit to work for more than 16 hours per week in paid employment. I have to say that if someone can do that it raises questions about whether or not they should be on incapacity benefit at all. The benefit is not for people who can accept near full-time paid employment.
I accept that there are special arrangements for local authority councillors and members of disability appeal tribunals and the Disability Living Allowance Advisory Board. But there are good reasons for those specific exceptions. The arrangements for councillors give claimants the opportunity to play a part in the running of their local affairs if they wish to do so. We need input from disabled people on disability appeal tribunals and the Disability Living Allowance Advisory Board. I do not think that there are good reasons why we should extend those arrangements to public bodies or committees. Nor do I accept that it would be appropriate to introduce arrangements which would allow people who are in receipt of a benefit designed to support those who are incapable of work to undertake work for which they could receive pay.
I accept that the amendment attempts to deal with the situation by making arrangements for the person's incapacity benefit to be reduced by a proportion of the remuneration. But such an arrangement is still contrary to the intended purpose of incapacity benefit. There would also be considerable administrative problems for the Benefits Agency in attempting to manage such a scheme. It would be very complicated for those doing voluntary work and would not have the effect desired by the amendment.
The proposals that I announced give incapacity benefit recipients the chance to undertake work for a wide variety of public bodies and other advisory or
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consultative groups. And, of course, when they serve on public bodies, payments made for expenses will not affect benefit entitlement. I hope that my noble friend will feel able to welcome the proposals that I outlined. I hope that in the main they addressed his concerns and that he will feel able to withdraw the amendment.
Lord Tordoff: My Lords, before the noble Viscount sits down perhaps I can ask him a question. Does he have any idea how much it would cost to allow the amendment to go through?
Viscount Astor: My Lords, it is not possible to establish what the cost may be. We do not know. But there would be considerable cost for the Benefits Agency in trying to manage the benefit. It would impose a whole new structure of work on officials in the Benefits Agency.
Lord Zouche of Haryngworth: My Lords, I thank my noble friend the Minister. He has given a lot of ground and it seems a very fair compromise. I found it difficult to take in the details of all that was said, but I was encouraged by and happy about what I did take in. I wonder whether it might be possible to make representations to the Minister with some of the disabled organisations and talk about some of the finer points. My noble friend said that he would be able to deal with them without having to put through the amendment, but such a meeting would perhaps give us an opportunity to do that. If my noble friend is able to do that, I shall beg leave to withdraw the amendment.
Viscount Astor: My Lords, I would happy to meet my noble friend to discuss how we could implement regulations on the proposals that I have announced.
Lord Zouche of Haryngworth: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.15 p.m.
Lord Zouche of Haryngworth Lord Zouche of Haryngworth moved Amendment No. 22:
Page 12, line 33, at end insert:
("(5) For the purpose of subsection (2) above the prescribed amount of work means the amount that a person is able to perform on a regular basis.").
The noble Lord said: My Lords, this amendment is concerned with volunteers and the present restriction of 16 hours put upon the amount of voluntary work they can carry out. We had a wide-ranging debate during the Committee stage on the issue and there was widespread agreement that the 16-hour imposition is seen as arbitrary and unrealistic. I welcome the Minister's undertaking in Committee to consider whether the rules permitting voluntary work should be extended and I hope he will bring us some good news.
The amendment before us is a modification of my previous amendment. It provides that work is defined as an activity which someone is able to perform on a regular basis. By definition, voluntary work can be carried out on an irregular basis. That means that a person with a fluctuating condition, such as multiple sclerosis or arthritis, may be able to work 20 hours one week but none the next. That would render him

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unemployable so far as an employer is concerned but would not prevent him from doing voluntary work. I believe that this addresses some of the concerns the Government have expressed about taking away the limit altogether. It would allow people to carry out more than 16 hours' voluntary work in any one week but there would be no question that he or she could carry out paid employment because of the nature of their disability.
The amendment offers a way of making further progress. It seeks to cover the needs of disabled people whom employers will not employ because their capacity to work varies too greatly from week to week. I am aware of a number of disabled persons whom employers have encouraged to retire prematurely because, for example, multiple sclerosis made their work patterns irregular. They have undertaken voluntary work and some, on occasion, have extended to 20 hours in a week. In future, they would lose entitlement to incapacity benefit.
To sum up, the Government contend that there must be some limit to the hours a person works as a volunteer. This amendment concedes that point but covers the urgent need to cater for people with fluctuating working capacity. An irregular working ability is of no interest to an employer. Voluntary work should not be artificially limited to 16 hours a week. In some weeks, disabled persons may be capable of doing more; in other weeks, less. Why should the former work be deemed voluntary while the latter is not? Limiting voluntary work to fewer than 16 hours a week without exception unfairly penalises disabled people on account of their disabilities.
It is my view and that of numerous charitable organisations that voluntary work should not be artificially limited to 16 hours a week. We heard examples during the Committee stage of people carrying out more than 16 hours' voluntary work. It is without doubt an arbitrary limit. I look forward to hearing what the Minister has to say following his department's consideration. I hope he will find my amendment an acceptable way of approaching this issue. I beg to move.
Lord Swinfen: My Lords, I support this amendment. On the one hand, as I said at Committee stage, voluntary work will for some people be a way back into full-time employment if they have a disability or an incapacity which is likely to improve. It is a good method of getting them used to working again. On the other hand, there are people with a disability or incapacity which is going to get worse; for example, something like multiple sclerosis. It gives those individuals the most terrific boost to their morale to be able to go out and do something useful. It will also benefit their families by giving them a time when they do not have to be on constant call. I can see no real reason why the Government should not accept this amendment. It is an enabling amendment which could be extremely useful to all sorts of members of the community.
Viscount Astor: My Lords, if I understand my noble friend's amendment correctly, it is seeking to ensure that the prescribed amount of work means the amount of work that someone can do on a regular basis. In other
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words, it seeks to ensure that someone could not be found capable of work if he could work for one week and then have to take four weeks off to recover.
I do not believe that amending Section 171D(2) in this way would have the desired effect. In any event, the amendment is unnecessary. In designing the new tests of incapacity, we are using a definition of work as being more than 16 hours per week. We have made it clear in the guidance to the expert panel that is assisting in the design of the new all work test that, when they consider work, they should consider regular work: that is, work that can be done in a normal workplace, in regular spells and for regular periods.
Work refers to any paid work in the open market for at least 16 hours a week. We are interested in a person's capacity to perform the activities involved in work in the context of ordinary paid employment. This means that a person who could only work in special circumstances such as sheltered or supported employ rent schemes or specially adapted workplaces, a person who could work 16 hours but only in an unusual combination of very short spells, or a person whose symptoms varied so widely that he or she could not work regularly would not be considered capable of work. For example, someone who could work 20 hours one week, but then could not work at all for the next two weeks, would not be considered to be capable of work under the arrangements that we are devising.
The same applies to voluntary and therapeutic work. Just because a person could do more than 16 hours a week for one week does riot mean that we would find him or her capable of work. In the application of the all work test, we would consider their ability to work over a period of time. My noble friend's amendment is unnecessary. I hope that, in the light of the explanation that I have given, he will be able to withdraw it. I have given a commitment to my noble friend that I am happy to discuss some of the details of the regulations in connection with an earlier amendment. At that stage I shall be happy to discuss my noble friend's anxieties on this issue also.
Lord Zouche of Haryngworth: My Lords, I thank my noble friend the Minister for his generous attitude towards my amendment. 'What worries me is that, if there is any confusion in this matter, disabled persons will stop doing voluntary work. That is a very real issue. It needs to be very clear cut. I understand what my noble friend the Minister said. He wants to achieve what I want to achieve, but not through the amendment as I have worded it. On that basis, I should very much like to take up his kind offer to have a meeting and discuss the two issues together. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hollis of Heigham Baroness Hollis of Heigham moved Amendment No. 23:
Page 12, line 33, at end insert:
("(6) Regulations may provide that in prescribed circumstances a person shall be determined to be capable only of limited work and shall thereupon, subject to prescribed conditions, be treated for the purposes of this Act as if he were incapable of work.

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Such conditions shall include a provision that section 30B(1) above shall have effect as if for reference to 1/7th there were substituted a reference to such smaller fraction, having regard to his incapacity, as may be prescribed.").
The noble Baroness said: My Lords, this amendment is about partial incapacity. I freely admit that it is a probing amendment which I do not seek at this stage to press to a vote.
Recently we have been hearing quite a lot in the press about "fuzzy logic"—that is, that most logical systems are based on "either/or" and "black or white", which is fine for machines but mostly irrelevant to humans who work in the grey area. With the tough medical test, one could say that we are now trying to apply binary logic and a test of "either fit or sick" to a situation where fuzzy logic should apply—that is, that people have a continuum of incapacity to work.
Who might such people be? They include people who can work only part-time because of, say, multiple sclerosis, arthritis or asthma; those with either a deteriorating or only slowly improving illness; people who need to work reduced hours or, as may be the case with some who are mentally handicapped, with reduced productivity. Such people may be able to work in a warehouse stacking shelves, but may not be able to perform at the speed of their more fit colleagues.
We want to keep such chronically sick and disabled people attached to the labour force or, where they have left it, to help them to re-enter it, if only partially; hence the need for a benefit. After all, the reason that invalidity benefit has grown is not because more people are coming on to invalidity benefit, but because fewer are coming off it as they are unable to enter the world of work. That is one of the areas in which a partial incapacity benefit might help. It would top up a partial earnings capacity. If, for example, a person can work for only 50 per cent. of the time or at only 50 per cent. productivity, he or she might have access to 50 per cent. incapacity benefit.
I readily accept that to some degree disability working allowance (DWA) was meant to meet that need. However, as we have already heard, it is clearly and signally failing to do so. As I understand it, only 5,000 of the estimated 50,000 who would take up DWA, as we were told when the legislation went through the House a couple of years ago, have actually taken it up. As we heard earlier on an exchange about the linking rule, some 27,000 people have claimed it in the hope of re-entering the labour market but have been disqualified. What we do not know is how many of those people who claimed but were disqualified then failed to enter work as a result when they might otherwise have done so.
Why should that be? We clearly need a lot more research than is published at the moment on why DWA is failing to work. It was a good intention, supported by noble Lords of all parties, but it is a structurally complex benefit. It is also very heavily means-tested both as far as the individual and families are concerned. It has a £3,000 capital rule, for example, with a very severe taper. In addition, it is not relevant where there is a working partner. If a disabled man had a wife in part-time work, it would almost certainly not be worth his while seeking part-time work as a disabled person
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because he would lose his benefit but would not be eligible for DWA and there would be no compensating benefit.
I recognise that there is a need to examine the whole array of questions associated with partial incapacity. I refer, for example, to what level of benefit should be associated with it, the likely cost in savings, and to whether it should be related to hours worked as opposed to productivity offered, as now happens with some of the Remploy schemes. I was lucky enough to visit such a scheme a couple of weeks ago where Remploy negotiated a relationship to productivity with the employer on an in-house basis. That might be a possible way forward. There are certainly well established precedents.
The amendment goes no further than giving the Secretary of State a flexible power to make regulations. It is a probing amendment that accepts that we need to offer a bridge back into work for people with a continuing disability. DWA has failed to deliver. Either DWA needs amendment, or we need a different sort of benefit. It is that issue that the amendment seeks to pursue. I beg to move.
9.30 p.m.
Earl Russell: My Lords, the amendment is in the real world, and we on these Benches are happy to support it.
Viscount Astor: My Lords, it was a pleasure to hear the noble Baroness, Lady Hollis, move her one and only amendment today. I was becoming worried in case the Opposition had, as they have done with policy-making which they have contracted out to the Social Justice Commission, contracted out the moving of amendments to my noble friend Lord Swinfen.
Baroness Hollis of Heigham: My Lords, I am glad that the noble Viscount gave way. I am sorry that he failed to recognise that there are serious concerns about the Bill all around the House on a non-party basis. I am sorry that the Minister should find this an opportunity to make a jibe.
Lord Swinfen: My Lords, as my noble friend mentioned me, I am not taking instructions from the Labour Party. I am a Conservative. I do not always agree with the Government. I doubt whether all Conservatives always agree with the Government. I speak in this House for myself, as does every other Member of the House. I am sure that my noble friend will bear in mind that we all speak and vote on our personal honour.
Viscount Astor: My Lords, of course my noble friend is right if one is on the Back Benches, but that is not necessarily so if one is on the Front Bench. Anyway, I am delighted to hear the noble Baroness, as I say, move the amendment, as she has just done, and I intend to give her a reply and address her concerns on the issue.
The award of incapacity benefit is to be based upon a seven day week rather than the present six day week in order to simplify arrangements. That will mean that illness or spells of incapacity will be based on days so that one week's benefit covers one week's need. The

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measure proposed, in my view would add complexity to the provisions if we begin to award benefit on the basis of fractions of days, as the amendment suggests.
I think it is perhaps useful first to ask what is meant by "capable of limited work". Does that mean that a person's capacity for work is substantially reduced? If that is the case, then that person could be entitled to incapacity benefit. The threshold for benefit will be set at a point where a person's capacity for work is substantially reduced, not where any work is impossible. Since a person does not have to be completely incapable of all work to receive incapacity benefit, then it could be considered a partial capacity benefit. That is supported by the recognition that people should be allowed to perform voluntary or therapeutic work whilst in receipt of incapacity benefit.
In addition, we have made it clear that, in defining "work", we mean at least 16 hours' paid work which a person can do in a normal workplace, in regular spells and for a regular period. So someone who could work in a specially adapted work place only, or in short irregular spells, or who could work one week and was then incapable for the next two weeks, would not be found capable of work under the arrangements that we are devising for incapacity benefit. It may be, therefore that in the arrangements for incapacity benefit we are already meeting some of the concerns about partial incapacity. But I recognise the depth of those feelings and I share noble Lords' interests in the subject.
One of the purposes of a partial incapacity benefit is to help people get back to full-time work. We already have three provisions within the existing social security system designed to ease the transition into work. The first is the therapeutic work provision. The opportunity to work, where that is judged therapeutic, will help those people to prepare for a return to full-time work. The voluntary work arrangements will enable people to work for up to 16 hours a week on a voluntary basis without affecting their entitlement to benefits. That will not only benefit the individuals and organisations concerned, it can help people become used to a working environment and give them experience of the rhythms of a working week.
If partially "capable of limited work" means that a person is capable of work but has a disability that puts them at a disadvantage in getting a job then they could claim Disability Working Allowance. DWA tops up earnings of people with an illness or disability who may have limited earnings capacity. This could be because a person can work only part-time or is able to undertake only a limited range of work, or for some other reason. I believe that DWA offers a valuable opportunity for some disabled people to return to work if they are only partially incapacitated. Hence, DWA could also be considered a partial capacity benefit.
We have already announced two significant enhancements to DWA—the National Health Service charges provision and childcare costs exemption. And I shall be making a further announcement on DWA when we come to Amendment No. 28. DWA is unique in Europe and provides an important bridge back into work.
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I hope that in the light of these assurances the noble Baroness will feel able to withdraw her amendment, in spite of the fact that she could not resist rising to my tiny tease.
Baroness Hollis of Heigham: My Lords, goodness me—the noble Viscount was cracking a joke and we did not notice!
Before the noble Viscount sits down, will he give a further explanation of DWA? I accept the good intentions behind it, but why has it so signally failed to meet its objectives? I understand that of the estimated 50,000 people who were expected to take it up only 5,000 have done so, yet some 20,000 others have claimed it but have failed and presumably have not re-entered work.
I am not sure that we shall explore Amendment No. 28. For that reason, it would be helpful if the Minister could enlarge on his reply and tell us why DWA has failed to meet the need that we all accept exists. It is a bridging benefit, a partial benefit, to help people into work. Will the Minister expand on his answer and say why DWA is so signal a failure,. despite good will around this House for it? What amendments does he have in mind which may rule this amendment irrelevant, which is what one would like to see?
Viscount Astor: My Lords, I said that I would address further points when we come to the later amendment. It would be best if I answered all those points when I deal with Amendment No. 28
Baroness Hollis of Heigham: My Lords, we had not intended to move that amendment. However, as the Minister has been unable to reply, I shall, with the permission of the House, withdraw this amendment. I shall pursue the points later, as that seems to be more convenient to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wise Lord Wise moved Amendment No. 24:
Page 13, line 48, at end insert:
("Incapacity for work: therapeutic work to be disregarded.
171FF.—(1) In determining whether a person is capable or incapable of work, there shall be disregarded any work of a prescribed therapeutic nature which that person has undertaken on the recommendation of a qualified medical practitioner.
(2) Regulations may provide that any remuneration for the prescribed work is subject to a prescribed permitted earnings limit.")
The noble Lord said: My Lords, I had thought that my noble friend Lord Swinfen would move this amendment too. However, as the Deputy Speaker has called me I shall do my best and give my noble friend a break.
The purpose of the amendment is to bring work of a therapeutic nature into the same category as that undertaken as a councillor. It removes the hours per week limits. The therapeutic earnings system is of great benefit to disabled people. It assists many back into full-time work. I acknowledge, however, that there must be some limit to the amount of therapeutic work that a person can do while he is considered incapable of work. There must be some measure of control.
However, the proposals to limit therapeutic work in respect of earnings and hours is a retrograde step. The proposal to limit the allowable time to 16 hours per week takes no account of people who by the very nature of their disability have only a varying capacity to work; some weeks that is in excess of 16 hours, some weeks it is considerably less. Some people would become entitled to the disability working allowance, but the ability to work more than 16 hours on an occasional basis is of little interest to most employers. Therefore, the DWA is not an option for many who now benefit from the therapeutic earnings limit.
The Association of Disabled Professionals has told us of several members who have been forced to retire early from their main occupation owing to the onset of multiple sclerosis and other disabilities that have made their work patterns irregular. They have been able to find alternative work, possibly lower paid work. Sometimes, but not always, they are able to work in excess of 20 hours a week. In future, those people will lose the entitlement to incapacity benefit. That must surely be unfair. The amendment covers the need to cater for such people and is a reasonable way forward. I beg to move.
Lord Swinfen: My Lords, I must apologise to my noble friend Lord Wise. There has been a muddle between us. I thought that he would be moving the amendment and he obviously thought that I was going to move it. Perhaps that will demonstrate to our mutual noble friend the Minister that those who care for disabled people come from all sides of the Chamber although, it would appear, not from the government Front Bench. That is certainly the impression that one receives. It may be a misleading impression. However, for those of us on all sides of the Chamber who are trying to help disabled people, year in and year out we seem to come up against a massive great dam that holds back a flood of goodwill. The dam seems to me to be down on the Front Bench in front of me.
The Association of Disabled Professionals has several members whose employers encouraged them to retire prematurely from their main occupation because multiple sclerosis made their work patterns irregular. They have found sympathetic alternative employers and have undertaken lower-paid work which, on some occasions, has exceeded 20 hours per week. In future, those people will lose their entitlement to incapacity benefit. Others, notably mentally handicapped people, are also affected.
In Committee on 21st April, my noble friend Lord Astor explained:
"We are aware that some groups of people receiving incapacity benefit who undertake rehabilitative work for more than 16 hours receive little or no remuneration for that work".
He went on:
"I refer in particular to people who are in-patients in hospitals and other similar institutions who undertake work under medical supervision as part of their treatment. For those people, claiming disability working allowance would almost certainly leave them worse off financially".
He added:
"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
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amend the Bill to achieve that. If special provisions are required, they can be included in regulations made under Section 171D(1)".
He went on:
"I shall consider carefully what has been said in the debate about therapeutic work. If we consider that changes are necessary and are required, I shall announce them during the course of the Bill. I shall consider the issue carefully". —[Official Report, 21/4/94; cols. 330–331.]
It is essential not to limit therapeutic work by both earnings and hours. I believe that my noble friend's amendment is a reasonable way forward. I shall be interested to hear what further consideration the Minister has given to the issue. I shall be interested to see whether any progress has been made; whether he is as enlightened as he would like us to think; and whether he is in fact moving forward.
Baroness Turner of Camden: My Lords, I support the amendment. With it we return to the issue of therapeutic work discussed in Committee. We did not press the amendments to a Division then. That was because the Minister seemed to respond with a certain amount of sympathy. At that time, other noble Lords and I said that the therapeutic earnings system was of great value to disabled people. It actively assists them back to full-time work which surely must be the desired objective.
As I said in Committee, information received from the Association of Disabled Professionals—an organisation referred to by the noble Lord, Lord Swinfen, which includes people who really wish to maintain their skills as far as is possible—indicates that it has members who may be too disabled for ordinary employment but who can and do work regularly, sometimes for more than 16 hours per week and at other times, of course, for much less. I argued then that there seemed to be no reason to put limits on the number of hours worked or the amounts earned. The essential point was whether the work was considered by the doctor concerned as being of therapeutic value.
At the time, the Minister opposed the amendment, especially with reference to the earnings limit. However, some noble Lords suggested that there should be a sliding scale of permitted remuneration. But that also did not seem to find favour with the Minister. However, as has already been said, the Minister indicated that he had some sympathy with the position of a specific group of claimants who would be adversely affected by the 16-hour limit on therapeutic work and undertook to look carefully at the situation.
I am pleased to say—and I must thank him for this —that I have received a letter from the Minister in which he says:
"I am writing to you now to tell you that we propose that the 16 hours limit is not applied to Incapacity Benefit claimants who are patients in or of a hospital or similar institution and who undertake therapeutic work under medical supervision as part of their treatment. We do not need to amend the Bill to achieve this position, as we already have the necessary powers to effect this position through regulations".
That response partly meets the case that we advanced in Committee, although by no means completely. In the meantime, the present amendment takes cognisance of the Minister's comment on earnings. The second paragraph says:

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"Regulations may provide that any remuneration for the prescribed work is subject to a prescribed permitted earnings limit".
I thank the Minister for the letter which clearly indicates that the promise given in Committee has, to some extent, been carried forward. However, I should like to know what the Minister thinks about the rest of the amendment, because his response does not completely cover what I and other noble Lords had in mind.
9.45 p.m.
Baroness Darcy (de Knayth): My Lords, I wish to say a few words in support of the amendment. The noble Baroness, Lady Turner, has given us some good news. I hope that we receive even better news from the Minister.
Earl Russell: My Lords, the Minister may be tempted to say that the amendment is unnecessary. However, before he succumbs to that temptation, perhaps I may bring to his attention a letter from the head of a local citizens advice bureau concerning a volunteer. That volunteer, who was recovering from a very serious illness, was in receipt of invalidity benefit and his doctor had recommended therapeutic work. The bureau followed the association guidance and advised him to obtain written confirmation from his doctor that voluntary work with the bureau for a few hours a week would be therapeutic. The volunteer then contacted the local office of the DSS by telephone. He was told that he would be required to see an adjudication officer but that, in any event, if he was fit for voluntary work he was fit to work properly.
Naturally, that situation produced a series of protests to which a suitable response was given. However, the volunteer was already sufficiently alarmed and discouraged, and too frightened of losing benefit, to be willing to proceed further. The author of the letter says:
"I feel particularly strongly about this as, over the last two years, three members of our voluntary staff who initially joined us whilst in receipt of invalidity benefit (2 worked for therapeutic reasons) ultimately regained their health and confidence and have obtained full time paid employment".
That must be what we are all looking for. I am sure the Minister will say that the situation was wholly exceptional; that it was entirely unauthorised; and, indeed, that suitable action was probably taken. Of course, even before the Minister says so, I accept that that is not in any way a result of government policy. That is not what was intended.
However, the situation is not quite as unusual as one would like to think. I do not hold the Minister responsible for it, but it is part of the human condition so one should expect it. Nevertheless, I ask the Minister to accept that whenever any policy—good, bad or indifferent—is put in place, there is always someone among those who have to enforce it who takes it forward with rather more literalness and enthusiasm than is required. That type of Jack-in-office, or I suppose nowadays one should also add, if I may so put it, "Jill-in-office", is a very recognised character capable of causing a great deal of trouble who could perhaps be rather better controlled with this amendment in place, which seems to me a good reason for supporting it.
Viscount Astor: My Lords, new Section 171D in the Bill provides the powers to make regulations to ensure that a person shall not be treated as capable of work by reason only of his doing work as may be prescribed. It also provides powers to establish an earnings limit for such work. We intend to use these powers to prescribe the conditions in which therapeutic: work can be undertaken. I hope that perhaps even the noble Earl will agree that this amendment simply replicates the powers already available in the Bill.
When we discussed the issues relating to therapeutic work during the Committee stage of the Bill, I explained that we were aware that the application of a limit of 16 hours per week to therapeutic work could disadvantage certain people. In particular such a limit would impact upon people in hospital or similar institutions who undertake work under medical supervision as part of their treatment. Such work is often undertaken for mote than 16 hours per week and the people involved receive a small amount of remuneration, usually well below the earnings limit of £43. The imposition of the 16 hours rule would disadvantage these people and I said that I would consider the matter further.
I can tell your Lordships that we have decided that the 16 hours limit will not be applied to those people who undertake therapeutic work while in a hospital or similar institution where the work is under medical supervision. This will ensure that it will not be necessary to introduce any changes to the current arrangements for therapeutic work for these people.
Perhaps I could answer a point made by the noble Earl. I think he was talking about voluntary work, not therapeutic work. From 16th May, with the introduction of voluntary work regulations, I hope that the sort of thing he described will not happen.
Earl Russell: My Lords, I should say as a small point of clarification that it was therapeutic work.
Viscount Astor: My Lords, I understand the noble Earl's point. I hope with the concession that I have announced today on therapeutic work my noble friend will see that the Government have indeed thought about this matter and have moved their position. In the light of this announcement, I hope that my noble friend Lord Wise will feel able to withdraw his amendment.
Lord Wise: My Lords, I thank my noble friend the Minister for that detailed response. It is encouraging, to think that people doing therapeutic work who are in hospital at that time and are doing therapeutic work under medical supervision will be incorporated within the ambit of the Bill. I am rather disappointed that it is not possible for that to be extended to other people outside hospital who are doing therapeutic work. But nevertheless at this stage I thank my noble friend the Minister for his response and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 25:
Page 14, line 42, leave out from ("tribunal") to ("and") in line 44 and insert ("to include one member with medical qualifications").
The noble and learned Lord said: My Lords, this amendment is in identical terms with the one which I moved in Committee. At that stage the efforts of the noble Viscount and myself to communicate with each other may best be described as cordial but abortive. The simplest plan appears to be to pretend that it never happened and begin again. But we did each agree to read what the other had said. I fulfilled my part of the bargain and I know that the noble Viscount fulfilled his because he has been kind enough to send me quite a long and helpful letter. He still does not agree with me but undoubtedly it has carried the debate a stage forward.
May I, for your Lordships' information, seek to indicate briefly how we have narrowed the issue? The proposal in the Bill is that appeals from adjudications under this legislation shall be to a social security appeal tribunal and that that tribunal shall have available one or more medical assessors. The purpose of the amendment is to replace the medical assessors with a medical member of the tribunal. At Committee stage the noble Viscount addressed his argument to a suggestion that there should be a medical member in addition to the medical assessors, a suggestion which was not in the amendment and which I never made. That misunderstanding has now been resolved.
Secondly, the noble Viscount argued that a medical appeal tribunal would not be an appropriate tribunal to hear the appeal. I never suggested that it would be. That is not an issue.
I confirm, and I confess to thinking, that a disablement appeal tribunal may be preferable for this purpose to a social security appeal tribunal precisely because it already includes a medical member and has experience in addressing medical issues. In his letter the noble Viscount says that that has been ruled out because the department is anxious to preserve the distinction between disability and incapacity. I find that a little puzzling. There are conceptual difficulties in this idea of incapacity as we find it in the Bill, based on a number of physical movements which someone is unable to make and then scoring the resultant assessment as though one were measuring someone's IQ. That has been the subject of a previous debate in your Lordships' House today. It seems to me to fail to address the real world where the relevance of the physical movement which a person can make depends upon whether that person's skills and experience are as a professor of astrophysics or a circus acrobat and where what matters is competitiveness in the actual labour market in which the claimant is competing.
I understand the distinction which the Government are trying to make, and I do not believe that it is conceptually beyond a disablement appeal tribunal to understand. Whichever tribunal is chosen it will need to address medical questions. That is what the provision we are discussing is about. A disablement appeal tribunal may have a greater insight into the problems of the disabled than a social security appeal tribunal. Therefore, I believe that a disablement appeal tribunal would be a better tribunal for the purpose. But, alas, I understand that that is ruled out, so I shall not pursue that further today.
Perhaps I may add, on a note of sadness, that if provision were made to provide the parties with good and clear medical reports which would be understood by a lay tribunal the whole issue which we are discussing may not have been necessary. However, I tried to explore that issue in Committee without success, and I must assume that that will not be forthcoming.
Therefore, we have narrowed the matter down to one issue. If those possibilities are ruled out, the question is whether it is more satisfactory for an SSAT to sit with one or more medical assessors or to include a doctor as one of the three members of the tribunal. That is the issue in this debate. The amendment expresses the preference of the Council on Tribunals, which I am privileged to chair—and it is right that I should declare that interest, as I did in Committee. I do not believe that it is a secret from the noble Viscount, and I am authorised to say that that preference is shared by His Honour Judge Thorpe, the President of the Independent Tribunal Service, and his colleagues.
The reason can be expressed quite shortly. The position of an assessor is ambiguous. In this context his function is either to give a medical opinion on such medical questions as arise or to assess and interpret such medical evidence as has been presented to the tribunal. That gives rise to a problem both of perception and of genuine justice.
In our last debate I did not know whether the advice which the assessor is to give was to be given secretly or openly. There are very clear reasons why it should not be given secretly. I am greatly obliged to the noble Viscount for confirming in his letter that it will be given openly. But there is no point in providing that it shall be given openly unless it can be challenged. There is nothing more calculated to make an appellant question the fairness of the proceedings than to allow him to hear what the assessor says but to shut him up if he attempts to question or challenge it. So the assessor will really be in the position of a witness, albeit a witness called by the tribunal. But if he is to be an expert witness, would it not be better to call him that and to treat him as such rather than for him to be a kind of privileged witness whose evidence carries some special built-in authority? It is likely that his advice will be accepted by the tribunal, otherwise there is no point in making his expertise available to it. If it is accepted, it may be on a decisive question. The appeal in effect will have been decided by someone who is not the authority charged by Parliament with deciding it.
In that context, an assessor is neither one thing nor the other: he is neither a witness, nor does he share the responsibility of the tribunal. That is why, except in very specialised jurisdictions, courts and tribunals are not at ease with assessors.
The second reason for the amendment is a matter of perception. Those who appear before these tribunals will not normally be teachers of jurisprudence. We know from the research of Professor Hazel Genn that those who use tribunals are sometimes far from clear what the issues are, what the tribunal is doing, who its members are, and what is their relationship to the department against whom they are appealing. If the appellants are to have confidence in the system, if they

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are to feel that they have had a fair hearing, it is important to address their bewilderment. If the doctor is an assessor, appellants will find it difficult to appreciate who the doctor is and what he is doing there. They may well perceive him as deciding the issue. As I said a moment ago, he may well in fact be doing so if the tribunal avails itself of his expertise. That would totally defeat both the perception and the reality of a collegiate three member tribunal.
There is one final, pragmatic reason. Fixing a sitting date for a tribunal is not an easy undertaking. It has to be a date when the chairman is free, when the other members can attend, and when the parties and their representatives are available. If to all that one has to accommodate one or more assessors who are likely to be busy general practitioners, that will make an additional difficulty in finding dates. There will be days when the rooms and resources are available, but it is not possible to fix enough hearings to fill a list. There will then be an understandable criticism that the hearing rooms are empty while people are waiting to have their appeals heard. If the number of those to be accommodated is kept to a minimum by having the doctor as a member of the tribunal, that problem will be greatly simplified.
Noble Lords may ask why the department is flying in the face of all that. The reason why it rejects the option, as understand it from the noble Viscount's letter, is the fear that the doctor, as a member of the tribunal, will dominate the chairman and other members. I have visited many tribunals, some of them including doctors as members. I say only that it has not been my experience. Doctors do not try to dominate their colleagues and would not get very far if they tried. It does not occur with disablement appeal tribunals. A tribunal of three members is a collegiate body in a way that could not be true of a body consisting of tribunal members and assessors. Indeed, if assessors are to be apart from the tribunal, which must be the intention, it ought not to be true.
There remains one final matter. We have heard it said earlier in our debate today that it would be wrong not to consider the cost. In our earlier debate I ventured to suggest that the department may be concerned to save expense. The noble Viscount has assured me both in the debate and in his letter that nothing is further from the Government's mind. I say at once that I accept that. Indeed, I believe the noble Viscount is strategically wise, if I may say so, to take that position because I believe that my proposal would be likely to represent a saving, as I endeavoured to argue in Committee. But I cannot be sure because the Government have not revealed what they propose should be the basis of the doctors' remuneration. On the Government's assurance that that is not their motivation, it is not in issue between us and I do not propose to pursue it. I am content to rely on the reasons of justice and confidence which I have already given. I beg to move.
Viscount Astor: My Lords, the noble and learned Lord, Lord Archer of Sandwell, argued in Committee that the reasoning for the provision for appeal tribunals
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to have access to medical expertise by means of a medical assessor was unclear. As he said, I wrote to him and I shall attempt to clarify the position further.
Our intention is that all appeals against decisions, made by an adjudication officer with regard to incapacity benefit shall be presented to a social security appeal tribunal. 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 relation to invalidity and sickness benefits.
We consider that the most sensitive appeals with regard to incapacity benefit will be those which concern a dispute about the limiting effects of a medical condition on the claimant's capacity for work. In such cases the dispute will be between the claimant and the departmental doctor about the severity of the effects of the claimant's medical condition. The adjudication officer will have considered the views of the departmental doctor and determined that benefit should not be awarded.
In these cases we think that the tribunal should have access to independent medical advice. Of course the members of the tribunal will weigh and assess the evidence. They are trained and expert in this and will make the decision. However, to assist and clarify technical medical questions a medical assessor will sit with the tribunal. 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 that. I have described.
When we were considering the adjudication of incapacity benefit, we examined whether there should. be a medically qualified member on the appeal tribunal. We concluded that there should not. The tribunal members will have equal status and, therefore, no one member will bear a greater responsibility when weighing the evidence.
The intention is that the tribunal will assess all the evidence presented. This will be that provided by the claimant and/or his representative, his GP or hospital doctor and a departmental doctor. The tribunal will reach a decision on that evidence on whether the claimant is incapable of 'work. Neither the tribunal members nor the medical assessor have powers to examine the claimant. Indeed, 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. The assessor will give advice to the tribunal about the medical evidence that has been presented. He will not give an opinion on capacity for work or take any part in the tribunal's decision on capacity for work.
Social security appeal tribunals are, expert in assessing evidence and determining benefit entitlement. Their role in incapacity benefit appeals, as in other appeals, will be to weigh the evidence before them and reach a decision. When the level of the claimant's incapacity is in dispute, a medical assessor will sit with the tribunal to comment on and explain the medical evidence submitted. The medical assessor will not give

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an opinion on capacity for work. Neither will he make decisions on entitlement. He will not even offer an opinion on capacity for work. The medical assessor is present to assist the tribunal in cases where there is a conflict of evidence as to the degree of the claimant's level of incapacity. He will do this by explaining and clarifying the medical evidence. The chairman will explain the role of the assessor to the claimant.
The reason why we propose to have assessors in certain cases is to reassure the claimant that the independent tribunal has access to independent medical evidence. We do not consider that it is necessary to have medical expertise available in all appeals on claims for incapacity benefit. In those appeals where it is necessary, I believe that that advice is better provided by an independent medical adviser.
I hope that I have answered the points raised by the noble and learned Lord, Lord Archer, on why we believe that this is a better solution rather than, as he suggested, having someone as a member of the tribunal.
Lord Archer of Sandwell: My Lords, on this occasion I think I understood what the noble Viscount said. I confess that I do not find it persuasive. I think that I already knew the intention of the Government. I am certain that I already knew the function of an assessor. But nothing which the noble Viscount said about the functions of the assessor seems to me to be beyond the capacity of a medical member of the tribunal.
The objection to including a medical member on the tribunal —if I understood what the Viscount said a moment ago—was precisely what I ventured to say that it was in paraphrasing his letter: a fear that the medical member will dominate the other two members on the tribunal. I can only say that that is not the experience of a number of people who are very experienced in that kind of work. I do not believe that he will dominate. The suggestion is that the assessor is there simply to give assurance to appellants. I should have thought that there would be clearer assurance if there were a medical member of the tribunal and appellants could understand why he was there and what he was doing.
I feel that we are now in some danger of traversing the same ground again. I have a feeling that I shall not persuade the noble Viscount tonight. I am not sure whether I shall ever persuade him. But this Bill will not be the first when we have endeavoured to warn the Government that something may happen and two years later they have said, "Well, bless us, that has happened after all and we shall have to reverse it." I can do no more this evening. I beg leave to withdraw the amendment
Amendment, by leave, withdrawn.
Clause 9 [Severe disablement allowance]:
[Amendment No. 26 not moved.]
Viscount Astor Viscount Astor moved Amendment No. 27:
Page 17, line 13, at end insert ("or training of such other description as may be prescribed").
The noble Viscount said: My Lords, I spoke to this amendment with Amendment No. 8. I beg to move.
On Question, amendment agreed to.
Clause 10 [Disability working allowance]:
Lord Carter Lord Carter moved Amendment No. 28:
Page 17, line 28, at end—
("() In subsection 2(a) for "56" substitute "156".").
The noble Lord said: My Lords, I had intended not to move this amendment because only today I received a letter from the Minister which is helpful in parts. I thought that it would be better to take advice on the letter and perhaps come back to the matter at Third Reading. However, an hour ago I saw on the tapes that the Minister had announced certain changes at the Report stage of the Bill. So I had better move the amendment to enable him to say so.
Perhaps I may briefly explain that the amendment aims to improve the take-up of DWA by extending the linking rule to ensure that, if a DWA claimant has been in receipt of a qualified benefit in the past six months instead of the present period of eight weeks, he will be eligible for DWA. It will give access to DWA to a new group of claimants—for example, those who have recently become incapable of work or who may be capable of work but are still disadvantaged in the workplace as a result of their disability. I have explained that briefly because I know that the Minister wishes to deal with it in his reply on the basis of the letter that he sent to me.
I first wrote to the Minister on 3rd May and asked him to comment on certain matters affecting DWA—the linking rule, the disincentive effect of the taper, the possibility of the introduction of a disabled child's premium, an increase in the applicable amount for single people and couples and an increase in the maximum amount of DWA. Those were the requests put to the Minister.
There is another matter on which he might be kind enough to comment. I am advised that his right honourable friends Mr. Nicholas Scott and Mr. Peter Lilley have indicated in correspondence to the Disablement Income Group, the Disability Alliance and the Disability Benefits Consortium that they will be pleased to see ideas for a partial incapacity scheme. Perhaps the Minister can tell us whether the Government would welcome such a submission and whether it would be in time to introduce a provision into the Bill at Third Reading
I do not propose to go into the content of the Minister's letter. I understand that he will speak to it when he replies to the amendment. I hope that, by moving the amendment, I have given him a chance to say what is already on the tapes. I beg to move.
10.15 p.m.
Viscount Astor: My Lords, I am not entirely sure whether the announcement on the tape is early or I am standing up late. In either event it is proper that one should announce these changes in your Lordships' House and I apologise that they have been announced elsewhere first. I am sure that the noble Lord, Lord Carter, understands the difficulty of timings.
We remain committed to the success of DWA and have commissioned work from the Policy Studies Institute which will contribute to the evaluation of the benefit. We await the outcome of the evaluation with

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interest. It would be premature to consider more far-reaching changes about qualifying periods until we can analyse the information that will come out of the evaluation. The final evaluation will be completed by October 1996. We will look at these issues once such analysis has been properly carried out. There is, therefore, ample time for those who wish to make representations to the department to do so.
In the interim, I should like to announce three measures that will make DWA more generous and will ensure that more potential DWA recipients are better off in work. These changes will take effect from April 1995, and I hope improve the take-up of the benefit. DWA benefit rates are based on rates in other benefits. The couples' and lone-parents' rate is the family credit adult credit level margin of £44.30 plus the single person's disability premium in income support of £19.45. That rate of £63.75 is already more generous than family credit. However, we have received criticism about its level.
My first proposal is to increase the allowance for lone parents and couples whether or not they have children to an amount equivalent to the family credit rate of £44.30 plus the income support disability premium for couples of £27.80 rather than the single person's disability premium of £19.45. That would mean an extra £8.35 a week in people's pockets, tapered if they receive housing benefit or council tax benefit. Another way to ensure that more potential. DWA recipients are better off in work is to make the benefit more generous by raising the threshold at which the income taper starts to apply. That would raise the point at which they float off DWA rather than increasing the maximum allowance payable.
Some members of the disability lobby expressed concern that although most single recipients are better-off with DWA, the benefit runs out when customers' earnings are only just over £100 a week. My second proposal, therefore, is to re-examine the level at which single people float off the benefit. At the moment the threshold for single people is set at 60 per cent. of the couple's threshold. My proposal is to increase that to 75 per cent. of the couple's threshold. This means that the point at which the taper would begin to apply for single people would be raised from £43.00 to £53.75. That measure would also have the effect of raising the point at which single people float off the benefit from just over £108 to £118. It will make the benefit more attractive for single customers and will enable more people to use DWA to enter or re-enter the labour market. We know that a number of potential DWA customers would be worse off using DWA because their out-of-work benefit income support includes a premium for a disabled child.
My third proposal is to introduce a disabled child's premium in DWA. The value of giving this premium in DWA is that it would close off one way in which customers may end up worse off. The qualifying conditions for the DWA premium would be the same as those in income support. As the operation of the disabled child's premium in income support is straightforward we see no problem introducing this premium in DWA and it would represent a significant improvement for some potential DWA recipients.
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Those three proposals will improve DWA by providing better incentives for customers to move into work and use the benefit. Current recipients will also benefit from the changes. The changes will make a considerable improvement to the benefit. I hope that the amendment will be withdrawn, in the light of the announcement I have made today and pending the results of the evaluation of the benefit.
DWA is a top-up to earnings. It to meet the intention that people will be better off in work. The benefit must be related to both means and needs. That invariably makes it complicated. The structure of the benefit is closely based on family credit where over 70 per cent. of the cash available is being taken up. The introduction of the disability working allowance was a radical new initiative taken by the Government in. response to the OPCS surveys of disabled people and longstanding suggestions by disability organisations for partial capacity benefit. It promotes independence and integration by providing a new opportunity for some disabled people to work if they wish to do so even if they have limited earning capacity. It tops up the earnings of some disabled people in low-paid work.
We always said that the caseload will take time to build up. New benefits can be expected to take a period of years to become established. Caseload is dependent on whether people choose to move into work. There is no compulsion. As I have said, we are already committed to evaluating disability working allowance. We have commissioned research from the PSI and that will help to support the evaluation. We will consider options for change sooner if a case is made. For example, from April 1995 disability working allowance recipients with savings of £8,000 or less will automatically qualify for free prescriptions and free dental treatment. This proposal brings disability working allowance recipients into line with those on income support and family credit. We remain convinced that disability working allowance fills the gap in social security. It provides an important opportunity for some disabled people to work if that is what they want to do.
Baroness Hollis of Heigham: My Lords, before the Minister sits down, we obviously welcome the statement that has been made tonight. But can he tell us, first, how much he expects the cost to be:, and secondly, what effect it will have on take-up of DWA?
Viscount Astor: My Lords, that is probably an impossible question to answer because we do not know what the effect on the numbers will be. We suspect that more people will take it up, but to make any estimate would be a guess and it would be wrong to do so. It certainly should improve take-up.
Earl Russell: My Lords, would I be right in taking it that the Minister has spoken early in order to assist the House and therefore it is in order for me to speak now?
Noble Lords: Yes.
Earl Russell: My Lords., in that case I should like very warmly to welcome what the Minister has announced. These are generous and very welcome concessions. I am particularly pleased by what he said

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about the child premium. That is very welcome indeed. But what pleased me most about the Minister's announcement was the use of the words "in the interim". I take it that means clearly that this is not his last word on DWA. That was the main assurance I wanted before welcoming it warmly, because, good though it is and generous though it is, it does not meet two particular difficulties about DWA. One is the linking rule which is the subject of this amendment, on which I think we have said enough today. The other is the passporting system. The passporting of benefits, of one benefit on another, always seems to lead to trouble. It comes up every time we discuss the low take-up of family credit. It comes up with IVB and the social fund. And I fear it may come up with the new and very welcome child care disregard which is passported on family credit. So I hope that this will not in any way preclude further thinking about that.
I appreciate what the Minister said about this announcement appearing on the ticker tape before we heard it in the House. Of course I understand that these things happen; of course I understand the difficulties. I do think, though, that I should put on record that it is somewhat unfortunate. Announcements are supposed to be made first to the relevant House. The amount of press attention which has been given to both Houses of Parliament has dropped drastically in the past five years. That is a real blow to the importance of Parliament in the government and politics of this country. The making of announcements outside the House instead of inside the House can only add to that. The Channel 4 "Dispatches" programme last week, which had many interesting things to say about the decline of Parliament in this country, might well have mentioned this. So, though of course I accept the Minister's apology and of course I understand how this happened, I hope very much that it will not happen again.
Lord Carter: My Lords, I think I can help the noble Earl, Lord Russell, as to why the announcement appeared on the tapes when it did. There was an earlier announcement about a defeat of the Government in this House today on the Social Security (Incapacity for Work) Bill and I think it is called news management to neutralise the effect. It makes a change for a department of this Government to have some good news to bring out to counter all the bad news that seems to be happening to them all the time. However, we welcome this. As I said, I moved the amendment, but I wonder what would have happened if I had not. The Minister could hardly have moved it in my place if I had not moved it. Therefore, I believe that he owes me a very hearty vote of thanks for getting into Hansard what was already on the tapes.
We welcome the announcement by the Government. We shall have to study it and take advice. We may wish to come back to the point in order to tidy up loose ends, as it were, at Third Reading. In the meantime I beg leave to withdraw the amendment.
Lord Swinfen: My Lords, before the noble Lord decides—
The Deputy Speaker (Lord Brougham and Vaux): My Lords, the amendment is being withdrawn.
Amendment, by leave, withdrawn.
Viscount Astor Viscount Astor moved Amendment No. 29:
Page 18, line 4, after ("1990") insert ("or training of such other description as may be prescribed").
The noble Viscount said: I spoke to this amendment with Amendment No. 8. I beg to move.
On Question, amendment agreed to.
Schedule 1 [Consequential amendments]:
Viscount Astor Viscount Astor moved Amendment No. 30:
Page 20, line 30, after ("pension)") insert:

("(a) in paragraph (a) for "invalidity" substitute "incapacity"; and

(b)").

The noble Viscount said: In moving Amendment No. 30, I speak to Amendments Nos. 33, 35 and 36 to 42. There is a mistake in the groupings list. Amendment No. 35 should be grouped with these amendments with Amendment No. 34 taken separately. I apologise for that mistake.
These 10 amendments are of a technical nature. They cover both minor drafting corrections and consequential changes that have not yet been dealt with. Perhaps I may explain briefly their effect. Amendment No. 30 replaces an outstanding reference to "invalidity" with "incapacity" in Section 25(6) (a) of the Social Security Contributions and Benefits Act. This is a reference to the age additions payable with incapacity benefit. Amendments Nos. 33 and 40 remove an outstanding reference to "invalidity pension" from Section 87(1) of the Social Security Contributions and Benefits Act. Amendment No. 35 replaces the reference to "invalidity pension" in Section 150(1) of the Social Security Contributions and Benefits Act with "long-term incapacity benefit". This is the list of qualifying benefits for payment of a Christmas bonus. Amendment No. 36 replaces a redundant reference to "invalidity pension" with "long-term incapacity benefit" in Schedule 3 to the Social Security Contributions and Benefits Act.
Amendments Nos. 37 and 41 remove the old rates of invalidity allowance from the Social Security Contributions and Benefits Act. Invalidity allowance will continue to be paid to transitional cases but this will be dealt with in regulations. Amendments Nos. 38 and 42 correct a change being made to paragraph 38 of Schedule 1 to the Social Security Contributions and Benefits Act. At present this incorrectly removes the word "benefit" leaving a reference to "unemployment" rather than "unemployment benefit".
Amendment No. 39 changes the reference for dependency increases from "Section 82" to "Section 86A" of the Social Security Contributions and Benefits Act. This is the new section dealing with dependency increases for incapacity benefit. It also replaces a redundant reference to "sickness benefit" with "short-term incapacity benefit". These are, as I said, technical amendments. I beg to move.
Lord Swinfen: My Lords, I intended to speak on the last amendment, but the Deputy Speaker is faster on his pins than I am. However, I want to take the opportunity provided by this amendment to thank my noble friend

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for the announcement which he made about the disability working allowance. I wonder what he would have done if the noble Lord, Lord Carter, had not moved his amendment before his press office inadvertently published what could have been a non-existent announcement before it was spiritually made.
Viscount Astor: My Lords, I am sure that my noble friend is thoroughly out of order in speaking to an earlier amendment at this stage. However, during the process of this Bill it is quite rare to get praise from my noble friend. I am delighted to get it even if it is slightly out of order. As I said, I am not sure whether the announcement on the ticker tape was early or I was rather late. I apologise to your Lordships. It should have happened at the same time.
On Question, amendment agreed to.
Viscount Astor Viscount Astor moved Amendments Nos. 31 to 33:
Page 23, line 16, leave out from ("effect") to ("as") in line 17.
Page 26, line 4, at end insert ("or training of such other description as may be prescribed").
Page 27, line 44, after ("(1) (b)") insert (", in the words immediately following subsection (1) (b)").
The noble Viscount said: My Lords, I spoke to these amendments with Amendments Nos. 7, 8 and 30. I beg to move.
On Question, amendments agreed to.
10.30 p.m.
Earl Russell Earl Russell moved Amendment No. 34:
Page 28, line 43, at end insert:
(". In section 130 of the Social Security Contributions and Benefits Act 1992 (Housing benefits), at end of subsection (5) (power to limit payments by reference to determinations by rent officers) insert—
"so, however, that any power which the Secretary of State gives to an appropriate housing authority so as to limit benefit shall only be exercisable in relation to a person incapable of work within the meaning of this Act if suitable alternative accommodation is actually available and the authority considers that it is reasonable to expect him to move from his present accommodation; and for the purposes of this subsection a person who is not incapable of work shall be treated as though he were so incapable for a period of 2 years from the commencement of this Act if, but for the passing of the Act, he would have been regarded as so incapable.").
The noble Earl said: My Lords, I can, I think, now praise the Minister in order. The Minister kindly gave a meeting on this amendment to the noble Lord, Lord Swinfen, and myself. We have had a constructive discussion and I wait with great interest to see what will happen as a result of it.
The amendment deals with transitional protection for housing benefit. Under the Housing Benefit Regulations 1987, if a claimant occupies a dwelling larger than is reasonably required, there may be a direction that the rent be reduced by such amount as is considered appropriate. In homelessness debates we are familiar with the giving of such directions. They account for a very large number of the homelessness cases that come to our attention. It is difficult to quantify it, but it is clearly a significant factor. As the pressure on the housing benefit budget increases, it is likely to become more significant. But there is one exception under Regulation 11(3) of the Housing Benefit Regulations 1987. In that case, if any person is incapable of work, he
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or she is to be exempted from any deduction under paragraph (2) for reducing the amount of housing benefit for which that person is eligible.
It is the Government's expectation I have already indicated some doubt about whether that expectation is correct but it clearly could happen - that, as a result of the Bill, a number of people will be found capable of work who have hitherto been found incapable of work. That means that under the 1987 Housing Benefit Regulations they will be hit with the proverbial double whammy. First, they will be found capable of work and lose their benefit and then, fairly shortly afterwards, they will get a reduced benefit direction for housing benefit and find that their housing benefit is reduced to a level where it is below their rent. Clearly, that could be very uncomfortable, but it could also add something to the extent of homelessness, which is something that is worrying the Department of the Environment and a great many other people at the moment. Homelessness is notoriously expensive as well as painful and if we can keep it down we should.
The Minister originally argued in Committee that it was inequitable to give such protection to some people when it was not given to others who were found capable of work. But I think that it is equitable because by using the old system for so long the Government have built up a body of reasonable expectations - and when one's reasonable expectations are suddenly taken away one needs time to make adjustments.
Earlier this afternoon the noble Lord, Lord Ewing, quoted the payments for ex-Ministers. I do not think that those are inequitable. I understand the point of them, but I also think that it is equitable to give the same sort of transitional protection to people who will suffer as a result of the Bill.
I do not think that the Minister is persisting with that argument. There is some discussion about how far it is necessary. I remind the Minister of what I said earlier about Jacks-in-office. When a policy is put in place it is sometimes pursued with unnecessary enthusiasm. 'That has always been the case and will, I think, always be the case. So there will always be people who get reduced benefit directions for housing benefit. That its why I think that transitional protection is needed.
We have had some discussion about how many people will be involved in this. That is conjectural on both sides, so we agree that there is some difficulty in reaching an agreed figure. But even if it is only a small number of people, it is only a small number of words in legislation. It is not a great upheaval in the structure of the Bill. And if it provides legitimate and useful protection—even if for only a few people, which I do not believe it is—I think that it should be welcomed. I look forward with a great deal of interest to hearing what the Minister has to say as a result of our discussions. I beg to move.
Lord Swinfen: My Lords, I need add nothing to what the noble Earl, Lord Russell, has said, except to, thank my noble friend the Minister for his courteousness in allowing me to come to the meeting that he had 'with the noble Earl, which I found useful.
Baroness Hollis of Heigham: My Lords, I support the spirit of the amendment. Like the noble Earl, Lord Russell, I am not sure how many people will be affected by it because clearly it is the local authorities' power and responsibility to determine the extent to which they will top up housing benefit beyond the reasonable rent assessed by the rent officer. But even if the Minister does not feel minded to accept the amendment as a transitional arrangement, it would at least make the point if his colleagues in the Department of the Environment were minded to send guidance to local authorities about the use of housing benefit to ensure that any disabled person who by definition is in an expensive property, a housing association property and the like, for which the level of benefit might be deemed in other circumstances to be unreasonable will be protected at least for a reasonable period of time.
That could be done by amendment; it could equally well be done by a code of guidance in that, as I understand it, local authorities have a discretionary power to that effect. If the Minister cannot move on the amendment, I hope that he will at least give an assurance that he will discuss this issue with his noble friends in the the Department of the Environment so that the thrust of the amendment could be pursued through a code of guidance.
Viscount Astor: My Lords, when the amendment was debated in Committee I gave an undertaking to consider carefully what had been said and I agreed to meet the noble Earl and my noble friend to discuss further the points that had been raised in the debate. We did have a meeting.
The group of people about whom we are talking are tenants who are either single or childless couples living in the deregulated private rented sector whose contractual rents are above market levels. Our estimate is that the numbers involved are very small.
Concerns were expressed about those tenants with severe disabilities and the likelihood of them losing the additional protection given in the housing benefit legislation. Those people should not lose that protection because they would no doubt still qualify for the award of the severe disability premium or the disability premium on account of their severe disability.
I should point out that local authorities have a duty to consider the reasonableness of the rent to protect the public purse, and they must consider restricting rents where the tenant occupies over-large accommodation or where the rent is unreasonably high by comparison with the rent for suitable alternative accommodation. However, for those tenants who fall in the vulnerable groups (those with children, the elderly and the sick and disabled) the local authority has also to demonstrate availability of the alternative accommodation.
In any case, before a local authority makes a restriction it must take account of, among other things, the nature of any alternative accommodation and the facilities provided, having regard to the age and state of health of the tenant and members of the household. Alternative accommodation must meet the needs of the tenant, and if it does not then the local authority would have no option but to meet the rent in full.
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The changes in the Bill would have an impact only on those tenants who are either single or childless couples who are incapable under the current rules but would not be transitionally protected because they do not meet the criteria of the new medical test. As I said, those tenants would be few in number, and with the duty imposed on local authorities to consider the suitability of the alternative accommodation, I do not feel that it would be right to provide legal protection with all the administrative difficulties which would ensue from doing so.
We are unaware of any difficulties caused by the present system whereby an incapable person becomes capable and loses his vulnerable status. If transitional protection is given for the full two years, it would be difficult to remove entitlement for those whose circumstances genuinely change.
Additional protection will be better focused on those genuinely incapable of work, for whom it was always intended. Those with severe physical disabilities will continue to be protected. Local authorities can meet rents in full if, after considering a claimant's individual circumstances, they decide that there will be genuine hardship.
In the light of the anxieties expressed by the noble Earl, Lord Russell, I propose that my department writes to all local authorities to notify them of the proposed changes once the Bill has received parliamentary approval. This letter would remind them of their existing duties to consider each case on its own merits and, where appropriate, use their discretion to treat any case affected in a sympathetic manner. With that undertaking, and indeed the further explanation that I have given, I hope I have gone a substantially long way to satisfy the noble Earl and that he may now feel able to withdraw his amendment.
Earl Russell: My Lords, I thank the noble Viscount very warmly for that reply. He has chosen his words exactly. He has gone a long way to satisfy me. That is all I had any reasonable right to expect. I very warmly welcome his undertaking to communicate with local authorities in order to draw their attention to the problem. I should be extremely grateful if he could also monitor the reaction of local authorities and especially try to see how far the reaction of local authorities has anything to do with how severely they are strapped for cash as a result of difficulties with standard spending assessments. I realise that I am asking there for icing on the cake, but the icing on the cake may make quite a considerable difference to how palatable it is in the consumption.
I shall not enter into all the details of the points of the Minister's response but I will say that I take his point about the difficulty of extending transitional protection for two years to those who are fully recovered. It may not be as powerful a point in the housing market as it is in the medical one, but it is one which I must certainly recognise. It remains only for me to thank the Minister once again for the care, trouble, hard work and the very careful thought that he has put into this and, with that, to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Astor Viscount Astor moved. Amendments Nos. 35 to 39:
Page 28, line 43, at end insert:
. In section 150(1) of the Social Security Contributions and Benefits Act 1992 (qualifying benefits for purposes of Christmas bonus for pensioners), for paragraph (b) substitute—

"(b) long-term incapacity benefit;".").

Page 29, line 24, at end insert:
("( ) In paragraph 5(6) (widowed mother's allowance, widow's pension and Category A and B retirement pensions), for "an invalidity pension" substitute "long-term incapacity benefit".").
Page 29, line 29, after ("benefit, &c.)") insert:

("(a) in Part I (contributory periodical benefits), omit paragraph 3; and

(b)").

Page 29, line 30, leave out ("benefit").
Page 29, line 40, at end insert:
. In Part I of Schedule 8 to the Social Security Contributions and Benefits Act 1992 (workmen's compensation and industrial diseases benefit in respect of employment before 5th July 1948: nature and amount of benefit under industrial diseases benefit schemes), in paragraph 6(4) (d)—

(a) for "section 82" substitute "section 86A"; and

(b) for "sickness benefit" substitute "short-term incapacity benefit".").

The noble Viscount said: My Lords, I spoke to these amendments with Amendment No. 30. I beg to move.
On Question, amendments agreed to.
Schedule 2 [Repeals]:
Viscount Astor Viscount Astor moved Amendments Nos. 40 to 42:
Page 33, column 3, line 42, at end insert (, the words immediately following subsection (1) (b)").
Page 34, column 3, line 13, at end insert:
("In Schedule 4, in Part I, paragraph 3.").
Page 34, column 3, leave out line 17.
The noble Viscount said: My Lords, I spoke to these amendments with Amendment No. 30. I beg to move.
On Question, amendments agreed to.
House adjourned at eighteen minutes before eleven o'clock.