Social Security (Incapacity for Work) Bill

HL Deb 10 May 1994 vol 554 cc1520-56

8.35 p.m.

Consideration of amendments on Report resumed on Clause 5.

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 This is a similar amendment to that dealt with at Committee stage on 19th April which was withdrawn.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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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. 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 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 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.

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 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 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: 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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.

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 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)—

1. (a) for "section 82" substitute "section 86A"; and
2. (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 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.