Social Security (Incapacity for Work) Bill

HL Deb 19 May 1994 vol 555 cc377-418

5.4 p.m.

Proceedings after Third Reading resumed on Clause 2.

Lord Swinfen moved Amendment No. 2:

Page 4, leave out line 9 and insert:

1. (" "(b) short-term incapacity benefit at the higher rate or where the beneficiary is over pensionable age;
2. (c) long-term incapacity benefit; and",").

The noble Lord said: My Lords, I shall speak at the same time to Amendment No. 4. On Report, your Lordships were kind enough to agree on a Division to an amendment in my name (Amendment No. 6). My noble friend Lord Astor was kind enough to point out that that amendment is technically flawed because it would provide for child dependants' increases to become payable after the 28th week of incapacity in all cases. However, for people over pensionable age receiving short-term incapacity benefit the intention has always been to make the payment of those increases from the start of the claim. As drafted, the amendment that was agreed on Report would prevent that. That was never my intention.

Amendment No. 2 is therefore needed to allow child dependants' increases to become payable after 28 weeks of incapacity for people under pensionable age, and from the start of the period of incapacity for those over pensionable age.

Amendment No. 4 is consequential upon Amendment No. 2 and inserts into the Bill the rate of child dependants' increases for claimants who are under pension age and receiving the higher rate of short-term incapacity benefit. I beg to move.

Lord Swinfen moved Amendment No. 3:

Page 4, line 24, at end insert ("payable at the lower rate").

The noble Lord said: My Lords, I shall speak at the same time to Amendment No. 5. The purpose of the two amendments is to allow for increases of benefit for adult dependants after 28 weeks, as is the present position with invalidity benefit. As the Bill changes the definition of short-term incapacity from 28 weeks to 52 weeks, additions normally payable at the long-term stage are not triggered until the end of the first year of incapacity. Although, on Report, the House voted to reinstate the additions for children at 28 weeks, families on incapacity benefit will still be worse off compared with their invalidity benefit entitlement.

The amendment does not seek to reintroduce all of the additions, but is limited to increases of benefit for the spouse of a disabled person, restoring the present position of payment at 28 weeks. It would go some way towards restoring the benefit position of families with children where the breadwinner is unable to work as a result of sickness or disability.

That emphasis on family need was clearly at the forefront of government thinking when invalidity benefit was introduced on Second Reading of a national insurance Bill in May 1981 when the Secretary of State for Social Services, the then Sir Keith Joseph, stated that the Government were seeking deliberately to help those chronically sick households where the wife of a chronic sick person was struggling to help the household income.

Not everyone with a spouse can claim the increase. No allowance is payable in respect of a working spouse earning more than £45.45 a week. Neither is the allowance payable where the spouse receives a benefit in his or her own right, such as invalid care allowance, maternity allowance or incapacity benefit, Because of those rules, although three-quarters of claimants have a spouse only one-third receive an increase in benefit.

Delaying entitlement to 52 weeks means that only a reduced level of benefit will be payable instead of the full £34.50 allowance. Only £26.90 will be payable for 24 weeks—a reduction of £7.60 a week, or, by the end of the first year of incapacity some £182.40. As well as delaying full entitlement, there is a proposal to remove the payment of additions to people with a non-working spouse who is below the age of 60 where there are no dependent children in the household. This would be a loss of £34.50 per week. Official figures suggest that only 170,000 claimants of invalidity benefit receive an allowance for a spouse who is under 60 and not looking after children. That has been estimated to save approximately £15 million in 1995–96.

As a dependant's increase may be the only source of income for some groups of people whose spouses are not entitled to other benefits, a wife caring for her husband on incapacity benefit may not qualify for invalid care allowance in her own right. In order to receive the invalid care allowance, the disabled person must be receiving either the higher or the middle rate of the care component of disability living allowance and the carer must be providing care for at least 35 hours per week.

People who lose out are those who provide care which is undertaken for less than 35 hours per week or where the disabled person receives only the lower rate of the care component, as no invalid care allowance is payable. Nevertheless, a spouse may provide consider-able assistance to the claimant or be unable to consider taking up employment without additional cost to the family or to the social services department.

The Department of Social Security in its report No. 19 indicated that many spouses were preparing for care, especially where the health of the disabled person was perceived to be deteriorating. One-fifth of working spouses had changed their pattern of work mainly by reducing their hours and often because of the claimant's health.

Savings to the Government arising from delaying entitlement to adult dependency increases to 52 weeks have been estimated at £15 million per year. That was recorded at col. 189 of House of Commons Hansard of 25th January 1994. However, the net savings derived from extending long-term benefit overall have been estimated at £110 million in 1995–96 and £150 million in 1996–97. Together with the reinstatement of child dependency additions, if the amendment were accepted the Government would still save more than £90 million during 1995–96 and £135 million in 1996–97 on reducing benefit levels alone.

In Committee the amendment was tabled and withdrawn. We did not deal with it on Report. My noble friend began by arguing that no hardship would be caused by delaying full entitlement to 52 weeks. He said that many families will have additional sources of income on which to draw between weeks 28 and 52. He added that increases of benefit for dependants would not present a sensible use of available resources. That appears at col. 128 of the Official Report for 19th April.

The Government have consistently argued that occupational pensions are available to people as an alternative to invalidity benefit. However, a study made by the Disability Alliance and by the Disablement Income Group shows overwhelmingly that many people, especially those who are most vulnerable to long-term sickness and disability, do not have access to private or occupational cover. Official figures indicate that one-third of those who become disabled before the age of 50 have never belonged to an occupational pension scheme. People excluded from cover also include those with a short length of service with their current employer, self-employed people, manual workers and people with a disability which pre-dates their employment.

Adult dependants are generally not covered by occupational schemes. However, according to the department's own research, only one in 10 employees in hazardous industries has cover for dependants. Many of those provide payment only on the death of the claimant. A minority of invalidity benefit claimants have payments from an employer. Official figures, including the department's own research, confirm that two-thirds of invalidity benefit recipients do not receive an occupational pension. Even in groups most likely to have occupational cover—that is, men and older women —less than one in four have occupational pensions. Only one in three women in receipt of invalidity benefit have occupational pensions.

Despite suggestions that people have occupational pensions during the 28 to 52-week stage, a reply to a Parliamentary Question given by Mr. Alan Howarth revealed that no information about that period is available. That is recorded at col. 1021 of the Official Report of the other place of 1st March 1994.

My noble friend also stated that the invalidity benefit review offered an opportunity to look at the concept of dependency and to review arrangements in the light of social change. In particular, he stated:

"when it was introduced, few married women worked but today over 70 per cent. of married women under 60 who do not have dependent children do so".—[Official Report, 19/4/94; col. 129.]

It is true, of course, that more women are working. Indeed, according to the Independent Policy Studies Institute, that accounts for some of the increase in numbers claiming invalidity benefit, but this does not necessarily mean that dependency additions are poorly targeted. The regulations do not allow for the increase to be paid for a working spouse whose earnings exceed £45.45. Indeed, most people with a spouse do not claim this increase. Of the three-quarters of claimants with a spouse, more than half of the spouses were in work; one-third were looking after children and one-third had retired. Only one-third of claimants actually receive a dependant's increase. Almost 50 per cent. of people receiving an addition do so for a partner over the age of 60.

The amendment would complete the progress of targeting vulnerable families which started with the reinstatement of the children's allowances at 28 weeks. The cost would be small and it would not significantly reduce the overall savings from the Bill; yet it would represent significant weekly sums to disabled people and their families. I beg to move.

5.15 p.m.

Baroness Darcy (de Knayth)

My Lords, I support the amendment, which was so clearly and comprehen-sively moved by the noble Lord, Lord Swinfen. It is logical because on Report we voted to reinstate additions for children at 28 weeks. The amendment will ensure payment at the same stage of the spouse or partner of the claimant, who may also be a mother.

On Report we heard the quotations of Keith Joseph and Alf Morris about the strain that dependency puts on the whole family. I wish to expand a little more on the position of dependent spouses and partners, who are so often women. An older spouse or partner of someone receiving incapacity benefit may well be a woman who has spent a number of years caring for children and is faced with caring for a partner in the years ahead, yet she may not be eligible for invalid care allowance in her own right until her partner receives the middle or higher rate of disability living allowance.

In a recent survey of carers, one-quarter of disabled people not receiving these payments were nonetheless regarded by their carers as very severely disabled. Therefore, an increase in the partner's benefit is crucial to the family income. Likewise, if she falls ill she may not have enough national insurance contributions to get on to incapacity benefit but may well not receive severe disablement allowance either. Therefore, she may have no alternative to her spouse's or partner's incapacity benefit.

I believe that, without consideration of conditions of entitlement to other benefits, the removal and reduction of dependency conditions will compound the hardship created by reduced incapacity levels and will do little to promote the independence of women. I hope that your Lordships will look kindly on this amendment.

Baroness Hollis of Heigham

My Lords, we on this side support the amendment moved by the noble Lord, Lord Swinfen, and supported by the noble Baroness. When a person becomes disabled the entire family suffers. Costs rise precisely at the point when income falls. To the distress of discomfort and pain is added the problem of poverty. If your Lordships were minded to accept the amendment, it would somewhat alleviate that additional stress caused by poverty.

If accepted, it would mean that when a disabled person has been assessed as disabled by the new tough medical test, he would receive a benefit not only for himself as though he were a single person but also, if he has one, for a dependent non-working wife. If we do not amend the Bill, it means that a disabled couple would receive the same level of benefit as a single man. If the amendment is refused, a disabled couple will have just —52.50 per week from incapacity benefit on which to live. If the amendment is passed, a disabled couple would receive something like the —92 per week which they now receive from invalidity benefit. I remind your Lordships that income support for a disabled couple with a disability premium is —72, plus a disability premium of —28.

Who are we talking about? Just over half of the spouses of disabled people are in full or part-time work or are self-employed. As they are not dependent, they would not be eligible now or in the future for the dependent spouse premium. Other spouses are disabled in their own right and receive invalidity or incapacity benefit. Therefore, they would not qualify. A further 200,000 spouses are full-time carers, caring for more than 35 hours per week. Therefore, they receive the invalid care allowance and they would not qualify.

Therefore, who are we talking about? We are talking about a couple, perhaps in their fifties, whose children have grown up. The husband is suffering from a disability rather than a sickness; for example, rheumatism, a spinal injury, asthma, arthritis or a fluctuating condition like ME. He does not need constant care but his spouse cannot leave him for more than an hour or two at a time. He certainly needs help with dressing, getting up, feeding and other forms of care.

We are not talking about the full-time carer. Nevertheless, we are talking about a part-time carer who may well have given up work to ensure that her partner can remain at home and enjoy a better quality of life than he would have living in residential care.

Those part-time carers are usually women. In consequence of caring, their own health is often rather poor. They are rather isolated. They are the non-working wives or, more accurately, the unwaged working wives of dependent husbands. Such a woman is for six months in terms of benefit invisible unless your Lordships are minded to recognise her existence, her contribution in caring for her partner by retaining the premium which currently exists under invalidity benefit and by transferring it on to the new incapacity benefit.

Is it reasonable that, if her husband were well but on income support, he would receive a benefit for her but if he is sick and on incapacity benefit he will not receive a benefit for her? If the husband needs his wife as a part-time carer, is it reasonable that that should not be reflected in his benefit? Morally and ethically that must be perverse.

We are talking about 170,000 people, mostly women, who are part-time carers; and yet unless your Lordships accept the amendment this evening they will have no premium and no financial recognition of their existence. The cost is not very great. It will be —10 million to —15 million, or less than 1 per cent. of the savings which the Government expect to extract from disabled people through this Bill. The Minister may tell us that such couples can go on to income support. But is it reasonable that we should ask couples suffering from such family distress and worry to go from one benefit system to another in order to obtain what your Lordships can offer them this evening; that is, a benefit which recognises the role of women who are part-time carers of their spouses? I hope that the amendment will be accepted.

Earl Russell

My Lords, I do not believe; that we always recognise quite how much the state owes to the partners of disabled people. They cany a vast burden. When one uses the word "burden" one may sometimes be speaking literally. However, here we are talking about care day and night, restriction on mobility, restriction on concentration on anything else, constant anxiety and constant juggling of the pieces to make them to fit together. That is a very severe load.

When I say that the state does not always realise how much it owes them, I speak literally. Not everybody is able and willing to shoulder such a burden. It would make a very great difference to the state if they did not do so. The Social Security Select Committee in another place in 1990 calculated the amount which carers were saving the Exchequer to be —24 billion per year, which is approximately 12p on income tax.

If those carers should become too discouraged and give up carrying that burden, the costs would fall on the state. Does the noble Viscount recognise a pistol when he sees it?

Viscount Tonypandy

My Lords, from time to time I boast of the quality of life in these islands and how privileged we are to live in a country where the dignity of the individual is taken for granted. Our heritage here is that there is not an unimportant person in the realm. But there are poor people in the realm and the noble Baroness, Lady Hollis, reminded us that we are concerned here with just 170,000 families.

If we belong to one of those families, we should realise what a burden is involved in asking them to go from one place to another to supplement their benefit. That is what is involved here, as I understand the argument. I say to the Minister that the amount that is being saved, with all due respect, is pettifogging, We give more in subsidy every week to every family in Ireland and through our payment to Europe, to people in Greece and in Portugal. We are merely asking for a fair deal for the weakest members of our society.

Lord Wise

My Lords, I support my noble friend's amendment. There is a tremendous amount of stress involved for families with disabled people. They have to adapt to the disability and they often have to contend with extra expenditure arising from the disability itself. Surely delaying full benefit at an early stage is likely to compound those problems for families with a disabled person.

A survey carried out by the Disablement Income Group has shown that many disabled people are facing debt. It found that on average 13 per cent. of disabled adults had debts; 29 per cent. of people who were married with children were permanently in debt; a further 28 per cent. of disabled families were getting into difficulties; and over two-thirds of couples with children had fallen behind with regular payments. Restoring full payment of the increase would amount to about £7.60 a week for such families. That is not a great deal of money; indeed, many of us may spend £7.60 on just having lunch at the Long Table in the Dining Room. However, it can make a substantial difference to the income of a household. Therefore, I hope that the Government will look favourably upon my noble friend's amendment.

Baroness Masham of Ilton

My Lords, if people have to go to different places to collect their benefits, would not the amendment save on administration?

5.30 p.m.

Viscount Astor

My Lords, the question of the level of support that ought to be provided between the 29th and the 52nd week of incapacity has proved perhaps to be one of the most difficult issues we have had to consider in the course of debates on the Bill. I have sought to persuade your Lordships that it is reasonable to pay the highest rate of incapacity benefit after 52 weeks of incapacity. I have not tried to disguise the fact that that means that people will receive less benefit between the 29th and 52nd week than they would under the current rules. I have explained that the Government believe that 52 weeks is a more realistic and reasonable definition of long-term incapacity than the current 28 weeks. I have also pointed to the availability of income-related benefits as a safeguard against financial hardship, while asking your Lordships to recognise that such hardship is in any case less likely to arise during the first year of incapacity because in many instances people will have additional resources they can draw on such as savings and income from their employers.

I think it is fair to say that my arguments have failed to convince my noble friend Lord Swinfen, who has consistently —and, if I may say so, most ably—argued for the continued payment of the highest rate of benefit from the 29th week. I suspect that there is little I can say today which will wholly remove the difference that exists between us on that point. I appreciate that my noble friend is genuinely concerned about the fact that the new benefit will be less generous than the existing benefit. I have no doubt that he will continue to have some misgivings.

However, I shall attempt to persuade your Lordships why we believe our arguments are right and why the amendment would create anomalies in the system. It is important to make clear that by this amendment adult dependency increases would be payable from day one of incapacity, unlike child dependency increases, which without the previous amendment would not be payable at all until after 52 weeks. The amendment would mean that the higher rate of adult dependency increases would be payable after 28 weeks.

Adult dependency increases are payable at the start of a claim. The amendment does not change the groups who will qualify. Adult dependency increases do not exist to meet the needs of disabled people. There are specific benefits which are designed to meet the needs of that group. I should remind your Lordships that since taking office we have more than trebled spending on benefits for the disabled in real terms. Invalid care allowance is payable to people who have significant caring responsibilities. In other cases it will often be possible to combine the provision of care with some employment. At any rate, the provision of care would not automatically imply financial dependency.

As regards talking about moving to income support, entitlement to both benefits is calculated by officials in my department who are often working in the same office, using the same systems which can communicate with each other. Apart from filling in the application form, there is no extra burden. I can assure the noble Viscount, Lord Tonypandy, that there is no question of having to move from one place to another.

The noble Baroness, Lady Masham, asked about the complications. As I said, the benefits are usually paid together on one order book, for example, in one post office. Although in theory it might be possible to introduce provisions to ensure that adult dependency increases are paid only to those who are actually financially dependent, that would involve very detailed rules which could in effect duplicate the rules for income-related benefits. Such rules would make the system very difficult to operate. I believe that there are grounds of principle for asking whether it is right to pay a contributory benefit for someone as a dependent who does not satisfy any of the conditions for receiving benefit in his or her own right. Again, the reason why we do so is currently bound up with the outdated assumption that women are inevitably dependent on their husbands. In answer to the noble Baroness, the amendment would produce a complication in the system and be difficult to administer.

I believe that I should put two important points to your Lordships regarding the amendment. First, there is no right level of benefit for people between the 29th and the 52nd week of incapacity. Just because benefits have been paid at a particular level in the past, it does not follow that they should continue at that level in the future or that the amount of past payments is in any sense a measure of need. The amendments would raise the rate of adult dependency increases from £26.90 to £34.50—that is a difference of £7.60 a week for a maximum of 24 weeks—without any justification other than precedent. As the new rate would apply only to new claimants, we ought not to be bound by past practice in that way.

Secondly, I do not believe that anyone would question the fact that the enormous increase in expenditure on incapacity benefits over recent years makes it essential for us to take measures to restrain future growth. In my view, we should concentrate on those who are in most need. That has been the purpose of the Bill from the beginning. We have three rates so that we can concentrate upon those in most need. Therefore, people who are suffering from long-term incapacity receive the greatest amount of money.

There is no objective justification for making such an additional provision. In the Government's view, it would be ill targeted and would not be the most sensible use of scarce resources. The amendment does not follow the principles that have guided us during the Bill's passage thus far. It will produce an anomaly in the system. I urge your Lordships not to accept the amendment.

Lord Swinfen

My Lords, my noble friend is quite right: he has not convinced me. However, I do not think that he expected me to say anything else. Indeed, we have been at odds with each other-I hope in a friendly way-since the Bill began its passage. My noble friend spoke as though the amendment which seeks to reinstate benefit from day one was a new idea. But he did not explain that the Bill will not give benefit until the end of the first six months. All I am asking for is the status quo.

My noble friend said that the Bill was an effort to stem the increase in incapacity benefit. I understand that. But that should not be done by taking the benefit away from those who need it most but by ensuring that the medical tests and the examinations to make certain that people get the benefit are correct. We shall be dealing with that subject later. As I said, my noble friend has not convinced me. I must test the opinion of the House.

5.38 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 109; Not-Contents, 112.

Division No. 1
CONTENTS
Ackner, L.	David, B.
Airedale, L.	Dean of Beswick, L.
Annan, L.	Dean of Thornton-le-Fylde, B.
Archer of Sandwell, L.	Desai, L.
Ashley of Stoke, L.	Donaldson of Kingsbridge, L.
Atholl, D.	Donoughue, L.
Attlee, E.	Dormand of Easington, L.
Beaumont of Whitley, L.	Ellenborough, L.
Beloff, L.	Ennals, L.
Blackstone, B.	Ewing of Kirkford, L.
Bonham-Catter, L.	Ezra,L.
Borthwick, L.	Falkland, V.
Boston of Faversham, L.	Foot, L.
Bottomley, L.	Gallacher, L.
Brightman, L.	Geraint, L.
Brookes, L.	Gladwyn, L.
Bruce of Donington, L.	Gould of Potternewton, B.
Butterfleld, L.	Graham of Edmonton, L.
Callaghan of Cardiff, L.	Grantchester, L.
Campbell of Eskan, L.	Greene of Harrow Weald, L.
Carmichael of Kelvingrove, L.	Halsbury, E.
Carter, L.	Hanworth, V.
Charteris of Amisfield, L.	Harris of Greenwich, L.
Cledwyn of Penrhos, L.	Haskel, L.
Clinton-Davis, L.	Hayter, L.
Craigavon, V.	Hilton of Eggardon, B.
Croham, L.	Holderness, L.
Darcy (de Knayth), B. [Teller]	Hollick, L.

Hollis of Heigham, B.	Rea, L.
Holme of Cheltenham, L.	Richard, L.
Hughes, L.	Richardson, L.
Hylton, L.	Rix, L.
Hylton-Foster, B.	Robson of Kiddington, B.
Ilchester, E.	Rochester, L.
Jay of Paddington, B.	Rodgers of Quarry Bank, L.
Jay, L.	Russell, E.
Jeger, B.	Sainsbury, L.
Jenkins of Hillhead, L.	Saltoun of Abemethy, Ly.
Jenkins of Putney, L.	Seear, B.
Judd, L.	Sefton of Garston, L.
Kagan, L.	Serota, B.
Kilbracken, L.	Shannon, E.
Lawrence, L.	Shaughnessy, L.
Llewelyn-Davies of Hastoe, B.	Stallard, L.
Longford, E.	Stedman, B.
Lovell-Davis, L.	Stoddart of Swindon, L.
Lytton, E.	Strabolgi, L.
Mackie of Benshie, L.	Strathcarron, L.
Mallalieu, B.	Swinfen, L. [Teller.]
Masham of Ilton, B.	Taylor of Blackburn, L.
McCarthy, L.	Tebbit, L.
McIntosh of Haringey, L.	Thomson of Monifieth, L.
Milner of Leeds, L.	Thurlow, L.
Milverton, L.	Tonypandy, V.
Molloy, L.	Tordoff, L.
Monkswell, L.	Turner of Camden, B.
Monteagle of Brandon, L.	Varley, L.
Mulley, L.	Wallace of Coslany, L.
Murray of Epping Forest, L.	Wharton, B.
Nathan, L.	White, B.
Nelson, E.	Wigoder, L.
Nicol, B.	Wilberforce, L.
Oppenheim-Barnes, B.	Williams of Crosby, B.
Oxford, Bp.	Williams of Elvel, L.
Pearson of Rannoch, L.	Wise, L.
Peston, L.	Zouche of Haryngworth, L.
NOT-CONTENTS
Addison, V.	Dudley, E.
Ailesbury, M.	Dundonald, E.
Aldington, L.	Eccles of Moulton, B.
Alexander of Tunis, E.	Eden of Winton, L.
Allenby of Megiddo, V.	Elphinstone, L.
Annaly, L.	Elton, L.
Arran, E.	Erroll of Hale, L.
Astor of Hever, L.	Ferrers, E.
Astor, V.	Finsberg, L.
Balfour, E.	Flather, B.
Blatch, B.	Fraser of Carmyllie, L.
Blyth, L.	Fraser of Kilmorack, L.
Boardman, L.	Gainford, L.
Boyd-Carpenter, L.	Gardner of Parkes, B.
Brabazon of Tara, L.	Gisborough, L.
Braine of Wheatley, L.	Goschen, V.
Brigstocke, B.	Granville of Eye, L.
Brougham and Vaux, L.	Gridley, L.
Cadman, L.	Hacking, L.
Caithness, E.	Hailsham of Saint Marylebone, L.
Caldecote, V.	Harmsworth, L.
Campbell of Alloway, L.	Hayhoe, L.
Carver, L.	Hemphill, L.
Chalker of Wallasey, B.	Henley, L.
Chelmsford, V.	Hives, L.
Clanwilliam, E.	Hood, V.
Clark of Kempston, L.	Howe, E.
Cochrane of Cults, L.	Ironside, L.
Ironside, L.	Joseph, L.
Colnbrook, L.	Kinnaird, L.
Colwyn, L.	Lauderdale, L.
Courtown, E.	Lindsey and Abingdon,E.
Cranbome, V.	Long, V.
Cullen of Ashbourne, L.	Lyell, L.
Cumberlege, B.	Mackay of Ardbrecknish, L.
De Freyne, L.	Mackay of Clashfern, L. [Lord
Dean of Harptree, L.	Chancellor.]
Denham, L.	Mancroft, L.
Denton of Wakefield, B.	Marlesford, L.
Downshire, M.	Mersey, V.

Morris, L.	St. Davids, V.
Mottistone, L.	Stewartby, L.
Munster, E.	Strange, B.
Murton of Lindisfarne, L.	Strathclyde, L.
Newall, L.	Strathcona and Mount Royal, L.
Norfolk, D.	Strathmore and Kinghome, E.
Orr-Ewing, L.	[Teller]
Oxfuird, V.	Sudeley, L.
Pender, L.	Swinton, E.
Perry of Southwark, B.	Thomas of Gwydir, L.
Pike, B.	Trumpington, B.
Plummer of St. Marylebone, L.	Ullswater, V. [Teller.]
Quinton, L.	Vaux of Harrowden, L.
Rankeillour, L.	Vivian, L.
Reay, L.	Wade of Chorlton, L.
Rodney, L.	Wakeham, L. [Lord Privy Seal.]
Sandys, L.	Westbury, L.
Seccombe, B.	Whitelaw, V.
Sharples, B.	Young, B.
Skelmersdale,L.

On Question, amendment agreed to.

Division No. 2
CONTENTS
Ackner, L.	Elis-Thomas, L.
Addington, L.	Ennals, L.
Archer of Sandwell, L.	Falkland, V.
Ashley of Stoke, L.	Foot, L.
Beaumont of Whitley, L.	Gallacher, L.
Beloff, L.	Gardner of Parkes, B.
Blackstone, B.	Gladwyn, L.
Bonham-Carter, L.	Gould of Pottemewton, B.
Boston of Faversham, L.	Graham of Edmonton, L.
Bottomley, L.	Greene of Harrow Weald, L.
Braine of Wheatley, L.	Hamwee, B.
Brightman, L.	Hanworth, V.
Brookes, L.	Haskel, L.
Brooks of Tremorfa, L.	Hilton of Eggardon, B.
Carmichael of Kelvingrove, L.	Holderness, L.
Carter, L.	Hollis of Heigham, B.
Cledwyn of Penrhos, L.	Holme of Cheltenham, L.
Clinton-Davis, L.	Hughes, L.
Craigavon, V.	Hylton, L.
Crook, L.	Hylton-Foster, B.
Darcy (de Knayth), B. [Teller.]	Jay of Paddington, B.
David, B.	Jay, L.
Dean of Beswick, L.	Jeger, B.
Dean of Thornton-le-Fylde, B.	Jenkins of Hillhead, L.
Desai, L.	Jenkins of Putney, L.
Donaldson of Kingsbridge, L.	Judd, L
Dormand of Easington, L.	Kennet, L.

Kilbracken, L.	Richard, L.
Llewelyn-Davies of Hastoe, B.	Rix, L.
Longford, E.	Robson of Kiddington, B
Lovell-Davis, L.	Rochester, L.
Lytton, E.	Rodgers of Quarry Bank, L.
Mallalieu, B.	Russell, E.
Masham of Ilton, B.	Saltoun of Abernethy, Ly.
McCarthy, L.	Seear, B.
McGregor of Durris, L.	Sefton of Garston, L.
McIntosh of Haringey, L.	Serota, B.
Merlyn-Rees, L.	Shannon, E.
Meston, L.	Simon of Glaisdale, L.
Milner of Leeds, L.	Stoddart of Swindon, L.
Molloy, L.	Strabolgi, L.
Monkswell, L.	Strathcarron, L.
Monteagle of Brandon, L.	Swinfen, L. [Teller.)
Mulley, L.	Thurlow, L.
Murray of Epping Forest, L.	Tonypandy, V.
Nathan, L.	Tordoff, L.
Nelson, E.	Turner of Camden, B.
Nicol, B.	Wharton, B.
O'Cathain, B.	White, B.
Oxford, Bp.	Williams of Crosby, B.
Peston, L.	Williams of Elvel, L.
Pitt of Hampstead, L.	Williams of Mostyn, L.
Plant of Highfield, L.	Wise, L.
Ponsonby of Shulbrede, L.	Young of Darlington, L.
Rea, L.

NOT-CONTENTS
Addison, V.	Hayhoe, L.
Aldington, L.	Hemphill, L.
Annaly, L.	Henley, L.
Arran, E.	Hesketh, L.
Astor, V.	HolmPatrick, L.
Atholl, D.	Hood, V.
Balfour, E.	Howe, E.
Blatch, B.	Kinnoull, E.
Blyth, L.	Kitchener, E.
Boardman, L.	Lauderdale, E.
Bolton, L.	Leigh, L.
Boyd-Carpenter, L.	Lindsey and Abingdon, E.
Brabazon of Tara, L.	Long, V.
Brougham and Vaux, L.	Lyell, L.
Bumham, L.	Mackay of Ardbrecknish, L.
Cadman, L.	Mackay of Clashfern, L. [Lord
Caithness, E.	Chancellor]
Caldecote, V.	Mancroft, L.
Campbell of Alloway, L.	Marlesford, L.
Carnegy of Lour, B.	Mersey, V.
Carnock, L.	Milverton, L.
Carr of Hadley, L.	Mottistone, L.
Chalker of Wallasey, B.	Mountevans, L.
Chelmsford, V.	Munster, E.
Clark of Kempston, L.	Murton of Lindisfarne, L.
Cochrane of Cults, L.	Newall, L.
Colwyn, L.	Norfolk, D.
Courtown, E.	Orkney, E.
Cranborne, V.	Orr-Ewing, L.
Cumberlege, B.	Oxfuird, V.
Dean of Harptree, L.	Peel, E.
Denham, L.	Pender, L.
Demon of Wakefield, B.	Perry of South wark, B.
Downshire, M.	Perth, E.
Eccles, V.	Plummer of St. Marylebone, L.
Eden of Winton, L.	Prior, L.
Ellenborough, L.	Quinton, L.
Elliott of Morpeth, L.	Rankeillour, L.
Elphinstone, L.	Reay, L.
Elton, L.	Rodney, L.
Ferrers, E.	Seccombe, B.
Finsberg, L.	Selborne, E.
Fraser of Carmyllie, L.	Sharpies, B.
Gisborough, L.	Skelmersdale, L.
Goschen, V.	Soulsby of Swaffham Prior, L.
Gridley, L.	St. Davids, V.
Hacking, L.	Stewartby, L.
Hailsham of Saint Marylebone, L.	Strathclyde, L.
Hanson, L.	Strathcona and Mount Royal, L.
Harmsworth, L.

Resolved in the negative, and amendment disagreed to accordingly.

Strathmore and Kinghome, E.	Ullswater, V. [Teller.]
[Teller.]	Vaux of Harrowden, L.
Sudeley, L.	Vivian, L.
Swinton, E.	Wakeham, L. [Lord Privy Seal.]
Tebbit, L.	Westbury, L.
Terrington, L.	Wyatt of Weeford, L.
Thomas of Gwydir, L.	Young, B.
Trumpington, B.

5.47 p.m.

Lord Swinfen moved Amendment No. 4:

Page 4, line 26, second column, insert ("£11.00").

The noble Lord said: My Lords, this amendment is consequential on Amendment No. 2. I beg to move. On Question, amendment agreed to. [Amendment No. 5 not moved.]

Clause 5 [Test of incapacity for work]:

Lord Swinfen moved Amendment No. 6:

Page 10, line 31, at end insert: ("(1A) A person shall be treated as incapable of work by reference to the point at which his ability to undertake work related activity is significantly impaired, not the point where work becomes impossible.").

The noble Lord said: My Lords, this amendment has two objectives: first, to place a definition of the extent of incapacity on the face of the Bill; and, secondly, to use a definition of incapacity similar to guidance which has been put to the expert panel considering details of the new test, in particular a threshold of incapacity by reference to the extent of incapacity rather than a point where work becomes impossible. A similar amendment based on the definition incorporated in guidance sent to the panel members concerning the point at which a person's capacity was substantially reduced was moved on Report and withdrawn. Can my noble friend give assurances that this matter will at least be placed in guidance to adjudication officers which will be publicly available? I beg to move.

Earl Russell

My Lords, I am grateful to the noble Viscount, Lord Astor, who is not in his place, for sending me a copy of his letter to the noble Lord, Lord Swinfen, about the discussion of this amendment that we had in a meeting. I also thank him for the care that he took in handling that meeting. However, I am not satisfied at all with the replies that we are receiving on this.

What we are trying to do in this amendment is simply to put onto the face of the Bill a definition to which we understand the panel is working already. In fact, the noble Viscount says that there is nothing between us on the principle of it. Therefore, I simply do not understand why the Government do not accept the amendment. They maintain that it is unnecessary. Once again they have only two types of amendment-the unnecessary and the wrecking. It is a change.

The Minister relies on Section 171C(2) of the Bill. The key words are:

defining the all work test by reference to the extent of a person's incapacity". The Minister argues that that is sufficient proof that the incapacity does not have to be total for a person to be rendered incapable of work. That reading seems to me to be very far from clear. I admit that the word "extent" argues a scale of measurement, but my first reading of it was that the scale of measurement meant that the extent of the incapacity was so great as to render him totally incapable of all work. Therefore, my reading of those words was not the Minister's. I do not know who is right, but that seems to me to be sufficient proof that the wording is ambiguous, which is all that we, in supporting the amendment, need to establish.

The Minister argues that the amendment, by purchasing on the own occupation test, would make that test more stringent. I cannot see any reason for that assertion. It makes no sense to me.

The Minister also argues in his letter:

The threshold for benefit will provide a clear line between capacity and incapacity". He argues that the phrase "significantly impaired" in the amendment is imprecise. Yes, it is imprecise. That is because it is in the real world. There is not a single objective line, as there is between one number and another, which absolutely and quantifiably distinguishes capacity from incapacity. As with every watershed, it is in an area where you sometimes cannot tell which side you are on.

It is because the test does not recognise that element of imprecision which is essential to anything in the real world that the test is so misguided. By putting up that objection to the amendment the Minister has only illustrated to me quite how necessary it is.

The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege)

My Lords, the amendment is very similar to one that we discussed at the Report stage of the Bill. Since then my noble friend Lord Astor and I have met my noble friend Lord Swinfen and the noble Earl, Lord Russell, the noble Baroness, Lady Hollis, and the noble Lord, Lord Carter, together with their advisers to discuss the issue further. I found that a very helpful discussion.

I stress that there is no difference whatsoever between what my noble friend seeks to achieve with his amendment and what the Government seek to do in the new medical test of incapacity. My noble friend wants to ensure that the point at which a person is treated as incapable of work for the purposes of incapacity benefit is the point at which his ability to work is significantly impaired, not the point where work becomes impossible. As I tried to explain at the Report stage, that is exactly what we are trying to do in designing the new test of incapacity. I said then that the principle on which we are operating is that the threshold in each category of functional limitation and the overall threshold will be set at the point at which a person's capacity for work is substantially reduced. I also pointed out that we have instructed the expert assessment panel which is helping us to design the new test on these issues. We want the new test to operate on that basis. It would not be right to design a system which would award benefit only to those people who can do no work at all.

However, I am afraid that we do disagree on what we need to do to achieve the desired result. My noble friend considers that we need to put a definition of incapacity on the face of the Bill. We have considered the amendment very carefully, but I am afraid that we are not able to accept it. We have also considered very carefully whether it would be possible to bring forward an amendment of our own. We have concluded that it is not. I should like to explain why.

My noble friend seeks to amend Section 171A of the Bill. This means that the amendment would affect both the own-occupation test and the all-work test. Those tests are defined in Sections 171B and 171C of the Bill respectively. Because no consequential amendments have been brought forward to those sections, what in effect the amendment would do is to add another test of incapacity to the two existing tests. Perhaps I may explain how this would operate in practice.

First, the own-occupation test, which assesses whether a person can do his own job does not need an additional criterion to define whether or not the person's ability to do his own job is significantly impaired. That test is defined on the face of the Bill and it does not require any further definition.

The new, more complex, all-work test is different. This is defined in Section 171C(2) (a) of the Bill, as the noble Earl, Lord Russell, said. I explained during the passage of the Bill the steps that we are taking to develop the test and I shall not repeat those details here. Our aim is to establish an objective test, the details of which are set out clearly in regulations. Those regulations will specify the areas of function that are involved, the levels of severity in each area, the scores for each level and the thresholds, both in each individual area and the overall threshold for benefit. Everyone will be able to see how the test is constructed.

The effect of my noble friend's amendment is again to introduce another element into the consideration of incapacity. What would happen is that when the adjudication officer had applied the all-work test and considered the issue of whether the person was capable or incapable of work he would then have to consider whether the person's ability to work was significantly impaired. That would mean a two-stage process, which would be complicated and confusing to administer and to explain to the claimant.

Against what criteria would that consideration of significant impairment be made? They would not be the same criteria as those specified in regulations for the all-work test, because that test has already been applied. Would it be necessary to compare the person's ability to work before his incapacity with his ability to work now that he is sick? I am not sure how we could do that. It would not be possible to gather evidence of a person's previous physical or mental condition. Even if it were, it would introduce a subjective element into the assessment which could lead to the kind of decisions which have been criticised as unfair in the current system.

Another problem is deciding what "significantly impaired" means. The amendment does not explain that phrase, nor does it provide a power to make regulations in which the phrase could be defined. This would leave it open to the courts and the Social Security Commissioners to define the phrase. It is possible that this could result in a harsher test than either my noble friend or the Government want. The whole purpose of the test that we are devising, with its descriptors, scores and thresholds, is to define clearly what we mean by significantly impaired.

The Bill has been drafted on the basis that incapacity for work is not to be equated with the point where all work becomes impossible. As the noble Earl, Lord Russell, said, Section 171C(2) (a) defines the all-work test:

by reference to the extent of a person's incapacity by reason of some specific disease or bodily or mental disablement to perform such activities as may be prescribed". I draw your Lordships' attention in particular to the phrase: to the extent of a person's incapacity". That implies that there is some capacity there. In other words, the person is capable of doing something. Work is not impossible for that person.

Earl Russell

My Lords, I should be very grateful for clarification. My understanding was that an extent could be total. Is that not grammatically correct?

Baroness Cumberlege

My Lords, as I understand the definition in the Bill, it means that the "extent" could be total but it could also be variable. The extent is a place on a continuum.

Perhaps this will explain the point. As I said, we are designing the new test on the basis that the threshold for benefit will be set at the point where the ability to work becomes substantially reduced, not where work becomes impossible. The regulations which will set out the test in detail will be drawn up under the power I have just quoted. If we propose in those regulations to set the threshold for benefit at the point where work will become impossible then it is likely that the regulations would be ultra vires.

We have carefully considered whether it would be possible to bring forward an amendment of our own which would meet the point raised by my noble friend. I have to say that we have concluded that it is not possible to do so. The Bill has been prepared on the basis that the all-work test, and hence the definition of incapacity, will be defined in regulations. To attempt to introduce at this stage a specific definition of incapacity on the face of the Bill could change the nature of the test adversely. I know that my noble friend does not wish to do that.

I say again that there is no difference between my noble friend and myself about what we want to do. Our difference is on how to do it. I have considered my noble friend's amendment very carefully but I cannot accept it. In the light of the explanation I have given, and the fact that guidance to adjudication officers will cover his points, I hope that my noble friend will feel able to withdraw the amendment.

6 p.m.

Lord Swinfen

My Lords, I thank my noble friend for that explanation which, I must admit, I found somewhat difficult to follow. However, as I said when moving the amendment, I sought an assurance that there would be proper guidance given to the adjudication officers; and that I am pleased to learn. It is important that that assurance is in the Official Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Earl Russell moved Amendment No. 7:

Page 11, line 12, at end insert:

("(5) No regulations shall be made under section 171A(2), (3) or (4) of this Act unless both Houses of Parliament have come to a resolution that the regulations shall be made in the form of a draft laid under section 6(3) of the Social Security (Incapacity for Work) Act 1994.").

The noble Earl said: My Lords, the effect of the amendment would be to provide that the regulations introducing the new medical test cannot come into force until they have been approved in the form of a draft laid before both Houses of Parliament. The purport of the amendment is strictly constitutional. It was not moved at Report. At Report, we debated a similar amendment in the name of the noble Lord, Lord Carter, on which the Minister said that he would have taken a more sympathetic view of the amendment had it not also contained a series of specific criticisms of the test.

Amendment No. 7 has no medical content. It has only the constitutional content. Therefore, that distinction encourages me to bring forward the provision again. At some stage there must be a right for this House to give or withhold approval of a test which, as proposed, is to go into law in the name of both Houses of Parliament. It must be possible for us to say yes or no.

It cannot have escaped the Government's notice that I and many others find the tests as they stand absolutely and completely unacceptable. The subjective element, of which the noble Baroness complained in her last reply, as I see it, cannot possibly be absent from any system of tests because it is people whom we are testing. Therefore, any attempt to exclude subjectivity totally will result only in self-delusion.

I should be left with the option of attempting to strike out the regulation-making power, Clause 5 of the Bill. The reason I am not doing so is because those tests are not in their final form. Consultation is going forward. We are told that there will be many changes and many improvements. I have heard that, and I welcome it. I believe that it would be contrary to the spirit of this House to strike out a regulation-making power for fear that it may be badly used when there is still negotiation in progress about how it will be used.

I believe, therefore, that we have to leave the power in place as it stands. But that means that the only way in which we can take on board a power to resist what is done if we disapprove of it when it comes before us —at a time well into the future—is by some such device as this amendment proposes. I know that there are other devices by which one may attempt to check what is in regulations. However, the proposed device is acceptable to every quarter of the House; and that is important.

It may be said, rightly, that the problem of how this House can give or withhold approval of what is in regulations is a general problem which needs a general solution. I hope that that general solution will come. But the Bill is not waiting on that general solution. The Bill is here now. We have to reach some solution for the purposes solely of the Bill. I cannot see how to do that except in the way proposed.

Yesterday, I spoke to a branch of the Network against the Child Support Agency. We, on this side of the House, sometimes flatter ourselves by thinking that the odium of that Act has rubbed off only on the Government. That is not so. It has rubbed off on Parliament as a whole. Parliament, as that body sees it, I think rightly, has failed to exercise sufficient scrutiny and control. If this legislation goes ahead in the form in which the Government propose, it will diminish the reputation of Parliament just as it will that of the Government. In order to see whether it is as bad as we expect, we need this procedure. Now is the only time that I can move the provision. I beg to move.

Lord Carter

My Lords, I was pleased to add my name to the amendment. As the House will know, we have made a number of attempts in the course of the Bill to deal with this unusual situation where the Government are taking the regulation-making powers without the Government, the House or anyone else having the first idea of what will be in the regulations. The assessment period is not over until August; and it may take longer. The Government have resisted all attempts to place any criteria for the regulations in the Bill, as we sought at various stages. All attempts to produce criteria have been resisted.

As the noble Earl said, we have sought hard throughout the Bill to involve Parliament in the discussion of these important regulations. At a previous stage of the Bill, I suggested that a code of practice would have been helpful. However, the House resisted that idea because the amendment I drafted put into the code of practice certain matters which the Government did not wish to have in them. At this stage of the Bill, I was hoping to suggest a code of practice, with the Government deciding entirely what was in the code. However, because of the defeat at Report stage, I am unable to do that. When the Minister replies, it will be helpful if he can tell the House in terms the degree of consultation that will take place. All the organisations and those involved are concerned about the nature of the medical test, how it will be applied, and so on.

We know that there will be guidance notes. There always are on regulations. Those will be continually updated and amended. They are outside the control of Parliament, and I am quite certain from the discussions that we have had on the medical tests that shoals of anomalies will arise when tests start to be put into practice. I assume that the guidance notes will be continually updated.

It is important that Parliament should be able to produce arguments, debate them and, if necessary, convince Government that the regulations should be drafted in a certain way. It is a useful approach which the noble Earl suggests. It summarises all that we have sought to do throughout the course of the Bill. I hope that the Government will feel able to accept the amendment.

Viscount Astor

My Lords, the amendment would require a resolution from both Houses of Parliament before regulations could be made under Section 171A of the Act. That would be in addition to the normal resolution required to approve the affirmative regulations.

Regulations will be made under the section setting out the information and evidence to be provided so that a determination can be made as to capacity for work. Regulations will also be made under the section setting out the requirement to attend medical examinations and -subject to guarantees regarding good cause-where information or attendance at a medical examination is not forthcoming, the regulations will provide that the person is treated as capable for work. Finally, regulations will be made setting out what constitutes good cause.

We already have regulations which deal with the requirement to furnish evidence of incapacity. Regulations made under subsection (2) of Section 171A will be similar to Regulation 2 of the Social Security (Medical Evidence) Regulations 1976. Similarly, Regulation 17 of the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1983 makes provision for the disqualification from benefit in cases where claimants refuse to attend a medical examination. We will bring forward regulations, under subsection (3) which treat claimants in these circumstances as capable for work.

Setting out what constitutes "good cause" under subsection (4) in regulations is new but there is a large body of case law which we will use as a guide when drafting the regulations. There is also a precedent in Regulation 12E of the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1983 which sets out what constitutes "good cause" with regard to availability for work.

The noble Earl, Lord Russell, said-and I stand to be corrected if I misheard him-that the only way we can resist regulations is by this amendment. Of course, that is not the case because these are affirmative regulations. Noble Lords will have the opportunity to scrutinise them closely and, if persuaded, vote on them. They may accept or reject the regulations. There is a right to say yes or no, in the words of the noble Earl. He gave us the analogy of the Child Support Act, but that Act highlights the difficulty of what should be in primary and what should be in secondary legislation rather than debates on secondary legislation.

The noble Lord, Lord Carter, made an important point about the code of practice and whether we should have consultations. He made an important point about consultation, and I assure noble Lords that we shall have full consultation. We have already promised to publish a report in August this year which will summarise the findings on the development of the all-work tests. The report will also set out the proposed test and contain details of proposed procedures on the administration and adjudication of the new benefit. The report will be freely available and we shall seek views on the details of the new test and the proposed procedures. I shall, of course, arrange for all noble Lords who have spoken on the Bill and other noble Lords who may be interested to receive a copy of the report. I can give an assurance to the House that we will take account of any comments that we receive in deciding the final details of the test and the procedures that will be set out in the regulations.

It is important that the new test is seen to be comprehensive and to have acceptance by many of the interested bodies involved. We want as many people as possible to look at it. We shall take account of representations. The noble Lord, Lord Carter, knows of the work that we are doing at the moment and we have discussed it in earlier debates.

I do not think that the noble Earl's amendment is helpful to your Lordships. There will be an opportunity to debate the regulations when they come before the House and the House has the opportunity to scrutinise them closely and accept or reject them. I do not think that the noble Earl has made the case for his amendment this afternoon.

Earl Russell

My Lords, before the noble Viscount sits down, may I ask him for one point of clarification? I heard what he said about it being proper for the House to vote on and accept or reject regulations. I am grateful for that. But can he give an assurance that, should I attempt to propose that, the Government would not advise the House that it would be improper of me to do so?

Viscount Astor

My Lords, we have had debates on the merits of voting on regulations and the Procedure Committee has looked into the matter. We discussed it and the noble Earl put a paper to the committee on it. The Government make no secret of the fact that they would discourage noble Lords from abusing the powers that they have on regulations. However, it is up to noble Lords to decide whether they wish to vote to accept or reject regulations. It is for the whole House to decide and make that decision.

6.15 p.m.

Lord Simon of Glaisdale

My Lords, before the noble Viscount finally sits down, he made an important statement today: namely, that the House can not only debate the regulations but can also reject them. He merely said that that power should not be abused. Will he say what he regards as abuse of a power that your Lordships might-his concession-enjoy?

Viscount Astor

My Lords, what I said was that it was up to the whole House to decide on how it wishes to treat regulations that come before your Lordships. That is the point I made. I accept the point that the noble and learned Lord, Lord Simon, makes. At earlier stages of the Bill, at Committee and Report stages, we debated how many times in recent years regulations have been either voted on or voted against in your Lordships' House. However, when regulations come before your Lordships' House, it is for the House to decide how to deal with them.

Lord Carter

My Lords, before the noble Viscount sits down, perhaps he could help the House. If the situation arose where the Government used their majority in the other place to force regulations through and to make sure that they were accepted, because regulations have to receive: the assent of both Houses, if the other place decided on a vote and the Government used their majority to accept regulations, does the noble Viscount feel that this House would be abusing its power if it decided to reject them?

Viscount Astor

My Lords, the noble Lord asks an interesting hypothetical question. If such a case arose, I am sure that the Government would have a view, but not until it happens.

Baroness Seear

My Lords, I should like to get it quite clear. Is the noble Viscount really saying that the power of this House to deal with affirmative regulations is neither more nor less than its power to deal with ordinary Bills passing through the House?

Viscount Astor

My Lords, I was pointing out that there are conventions in your Lordships' House, but I believe that they are conventions rather than rules. I refer the noble Baroness to a debate that I quoted at an earlier stage of the Bill which your Lordships had last year on the procedure of this House and how we should deal with regulations that come before the House.

Earl Russell

My Lords, we have been brought right to the edge of a clarification, but not quite to it. What I really needed to hear the noble Viscount say is that, although it is for the House to decide whether to vote on regulations, the Government would not advise the House that it was improper to do so. The noble Viscount has come right to the edge of that undertaking. If he could come all the way to it, then I should be able to withdraw my amendment. If he wishes to rise, I am happy to give way to him.

Viscount Astor

My Lords, I believe I said that it was up to your Lordships to decide. Of course, this House treats regulations by convention, and I made that point. I think that noble Lords will have to consider carefully before they try to change any conventions that we have in the House. I do not think that it is for me at the Dispatch Box today to attempt in any way either to change a convention or to influence the changing of any convention. I am purely attempting to explain as best I can-and I fully accept that I might not have done so as clearly as other noble Lords could-what the conventions of your Lordships' House are at the moment.

Earl Russell

My Lords, I am grateful to the noble Viscount for trying so hard to reach agreement. I accept that he cannot change a convention on his own. He has the same right to influence that convention as every other Member of your Lordships' House. Had he exercised that right and expressed his view that this convention needed to change, I would have withdrawn the amendment. He has taken me right to the brink of it and he has not done so. Scrutiny is not enough. Scrutiny can be interesting, but scrutiny cannot force the Government to change their mind. Scrutiny can only achieve its full effect if it is backed by the power to vote. The only way to get a power to vote which will not give rise to these very fine and fascinating, but not conclusive, discussions is to pass this amendment. I beg to move.

6.20 p.m.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 79; Not-Contents, 108.

Division No.3
CONTENTS
Addington, L.	Lawrence, L.
Airedale, L.	Llewelyn-Davies of Hastoe, B.
Archer of Sandwell, L.	Longford, E.
Ashley of Stoke, L.	Lovell-Davis, L.
Bamett, L.	Mallalieu, B.
Beaumont of Whitley, L.	Masham of Ilton, B.
Blackstone, B.	McCarthy, L.
Boston of Faversham, L.	McIntosh of Haringey, L.
Bottomley, L.	Merlyn-Rees, L.
Brooks of Tremorfa, L.	Meston, L.
Carter, L.	Milner of Leeds, L.
Cledwyn of Penrhos, L.	Molloy, L.
Clinton-Davis, L.	Monkswell, L.
Crook, L.	Mulley, L.
Darcy (de Knayth), B.	Murray of Epping Forest, L.
David, B.	Nicol, B.
Dean of Thornton-le-Fylde, B.	Oxford, Bp.
Desai, L.	Peston, L.
Donoughue, L.	Pitt of Hampstead, L.
Dormand of Easington, L.	Plant of Highfield, L.
Elis-Thomas, L.	Rea,L.
Ennals, L.	Richard, L.
Gallacher, L.	Rix, L.
Gladwyn, L.	Robson of Kiddington, B.
Gould of Potternewton, B.	Rochester, L.
Graham of Edmonton, L.	Rodgers of Quarry Bank, L.
[Teller.]	Russell, E. [Teller.]
Hamwee, B.	Seear, B.
Haskel, L.	Serota, B.
Hollis of Heigham, B.	Simon of Glaisdale, L.
Hughes, L.	Stoddart of Swindon, L.
Hylton, L.	Strabolgi, L.
Jay of Paddington, B.	Tonypandy, V.
Jay, L.	Tordoff, L.
Jeger, B.	Turner of Camden, B.
Jenkins of Hillhead, L.	White, B.
Jenkins of Putney, L.	Williams of Crosby, B.
Judd, L.	Williams of Elvel, L.
Kennet, L.	Williams of Mostyn, L.
Kilbracken, L.	Young of Dartington, L.

NOT-CONTENTS
Addison, V.	Denham, L.
Aldington, L.	Denton of Wakefield, B.
Annaly, L.	Downshire, M.
Arran, E.	Eccles of Moulton, B.
Astor, V.	Eden of Winton, L.
Atholl, D.	Elliott of Morpeth, L.
Balfour, E.	Elphinstone, L.
Blatch, B.	Elton, L.
Boardman, L.	Ferrers, E.
Boyd-Carpenter, L.	Finsberg, L.
Brabazon of Tara, L.	Flather, B.
Braine of Wheatley, L.	Fraser of Carmyllie, L.
Brentford, V.	Gardner of Parkes, B.
Brougham and Vaux, L.	Gisborough, L.
Burnham, L.	Glenarthur, L.
Byron, L.	Goschen, V.
Cadman, L.	Gridley, L.
Campbell of Alloway, L.	Hacking, L.
Campbell of Croy, L.	Hanson, L.
Carnock, L.	Harmsworth, L.
Chalker of Wallasey, B.	Hayhoe, L.
Clark of Kempston, L.	Henley, L.
Cochrane of Cults, L.	Hesketh, L.
Colwyn, L.	HolmPatrick, L.
Courtown, E.	Hood, V.
Craigmyle, L.	Howe, E.
Cranborne, V.	Jeffreys, L.
Cumberlege, B.	Kitchener, E.
Dean of Harptree, L.	Lane of Horsell, L.

Lauderdale, E.	Quinton, L.
Leigh, L.	Rankeillour, L.
Lindsey and Abingdon, E.	Reay, L.
Long, V.	Rodney, L.
Lyell, L.	Seccombe, B.
Mackay of Ardbrecknish, L.	Selborne, E.
Mackay of Clashfem, L. [Lord	Sharpies, B.
Chancellor.]	Skelmersdale, L.
Macleod of Borve, B.	Skidelsky, L.
McColl of Dulwich, L.	Soulsby of Swaffham Prior, L.
Mersey, V.	St. Davids, V.
Milverton, L.	Stewartby, L.
Monteagle of Brandon, L.	Strathclyde, L.
Mottistone, L.	Strathcona and Mount Royal, L
Mountevans, L.	Strathmore and Kinghorne, E.
Munster, E.	[Teller.]
Murton of Lindisfame, L.	Sudeley, L.
Nelson, E.	Swinton, E.
Nome, L.	Thomas of Gwydir, L.
Northbrook, L.	Trumpington, B.
O'Cathain, B.	Ullswater, V. [Teller.]
Orkney, E.	Vinson, L.
Orr-Ewing, L.	Vivian, L.
Oxfuird, V.	Wakeham, L. [Lord Privy Seal.]
Pender, L.	Wyatt of Weeford, L.
Plummer of St. Marylebone, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

6.28 p.m.

Viscount Astor moved Amendment No. 8:

Page 12, line 8, after ("provide") insert ("-(a)").

The noble Viscount said: My Lords, in moving Amendment No. 8, with the permission of your Lordships I should like to speak also to Amendment No. 9.

These amendments are designed to clarify the application of the own-occupation test. As I have explained to the House before, in the majority of cases for the first 28 weeks a person's incapacity will be measured against their own occupation. Section 171B(1) defines "own occupation" for these purposes as being remunerative work for more than eight weeks in the 21 weeks immediately preceding the spell of incapacity.

We want as many people as possible to undergo the own-occupation test at the start of their period of sickness. We have always intended that people who were on training courses, whether they were paid or unpaid, and who would return to their previous job or employer would be covered by this provision.

Amendment No. 9 is designed to ensure that we have such powers. Amendment No. 8 is a small technical amendment which is required for the paragraph proposed by Amendment No. 9 to be inserted. I beg to move.

Lord Swinfen

My Lords, Clause 3 allows for periods of training to be classified as periods of incapacity for work, allowing people to requalify for incapacity benefit if they again become unable to work after the period on a training course. Can my noble friend explain how training can be treated as work under Clause 5 but as incapacity under Clause 3? Can he explain precisely how these regulations will operate and for whom they are intended?

In addition, is this provision designed to catch people whose jobs are kept open but who are on a training course from their employer? In that case they may say that the own-occupation test is inappropriate. If so, does that call into question the way in which the own-occupation test has been drafted? At the moment under the test someone could be on disability leave from his employer for up to one year. I understand that the Midland Bank, Barclay's Bank, McDonald's and Bristol City Council are seriously considering giving leave for up to a year in cases of incapacity-it need not be for training courses-yet those people will be assessed after 196 days against their ability to do "all work", even though their own job may be held open for them. Are there any plans to consider other circumstances in which the own-occupation test is to be extended in that way?

Viscount Astor

My Lords, most people are sick for only a short period and then they go back to work. Therefore we want as many people as possible to have their incapacity measured against their own occupation when they first fall sick. The provision will include all those who have worked for more than eight weeks in the 21-week period before their illness, all people on paid leave and those on training courses who intend to return to their previous job or employer. In addition, people who do more than one job or more than one job at any one time will also be included.

The intention is that as many people as possible shall undergo the own-occupation test at the onset of their incapacity. As I said, the test will apply to people in work or on paid leave or unpaid training from their employer when the person involved intends to return to his employer or job. People with more than one job in the 21-week period and people who do more than one job will also be covered.

The amendment addresses the own-occupation test and how it is applied but nothing else. We are still considering the detailed application of the test and the regulations that will be required.

With regard to the point about training under Clauses 3 and 5, they are entirely different provisions. The own-occupation test is designed to establish a job against which a person can be assessed. The training linking rule is to ensure that people with a continued disability can get back on to benefit.

On Question, amendment agreed to.

Viscount Astor moved Amendment No. 9:

Page 12, line 10, at end insert ("; and (b) for training of any prescribed description to be treated as if it were remunerative work.").

The noble Viscount said: My Lords, I have just spoken to this amendment with Amendment No. 8.I beg to move.

On Question, amendment agreed to.

Lord Swinfen moved Amendment No. 10:

Page 12, line 33, after ("satisfied") insert ("which shall include a requirement to take account of any statement made by the person's general practitioner indicating the nature of the disease or disablement and any additional medical factors he considers relevant to a determination of capacity or incapacity for all work.").

The noble Lord said: My Lords, this amendment is designed to ensure that general practitioners retain the option of commenting on the client's medical condition and the way in which it may affect his capacity for work.

It will allow GPs who wish to give their opinion of their patient's capacity for work the opportunity to do so after the first 28 weeks of incapacity.

This is an enabling amendment. Under the new system, GPs are to continue to assess people during the first 28 weeks of a claim. But at this stage the Benefits Agency will take on an enhanced role. The patient will then fill in a questionnaire, the GP will give a diagnosis and the case will go the Benefits Agency. The DSS may ask the GP for further clarification but the GP will not be asked to comment on the claimant's self-assessment and not give his opinion of his ability to undertake any kind of work.

It should be borne in mind that the DSS doctor will probably see the patient for only a very short length of time, whereas the GP will have seen him over weeks, if not months or possibly years. Moreover, many people, when seeing a strange doctor, will straighten their back and march in trying to look as fit and healthy as possible, sometimes at considerable discomfort to themselves.

These changes do not take into account the disturbing number of cases reported by citizens advice bureaux throughout the United Kingdom of inappropriate withdrawals of benefit following examination and assessment by the Benefits Agency. Many report an increase in the number of appeals against the withdrawal of invalidity benefit that have been won. A CAB in Wales reported a success rate of 80 per cent.

Many GPs are concerned that the increased role of Benefits Agency doctors under the new system, combined with the proposed narrow definition of incapacity and the stringency of the new tests, will deprive many disabled people of benefits to which they should be entitled. Given that some GPs welcome the changes while others are keen to retain a more extensive role, it is important to give all GPs a choice with regard to the level of their involvement in assessment of their patients' capacity for work.

I understand that the National Association of Citizens Advice Bureaux believes that the new system would operate more effectively if GPs were able to comment on the medical factors relevant to their patients' capacity for work. Their statement would be separate from the questionnaire that the client is required to fill out after 28 weeks of a claim. That addresses concern about the reluctance of some GPs to express a view that their patients are fit for work in the knowledge that it may be contrary to their patients' view and upset their relationship with them. It could also mean that the GP could advise the DSS doctors that, although the patient thinks that he is a great deal fitter than he is, in fact he is much sicker and more incapacitated than he believes and the GP has not told him for the sake of his morale.

At Report stage in this House an amendment was tabled which called for Benefits Agency doctors to be given relevant training in carrying out medical examinations in relation to claims for incapacity benefit in response to concern about the quality of Benefits Agency examinations. During that debate the importance of a partnership developed between Benefits Agency doctors and GPs was emphasised, and specifically the importance of the Benefits Agency doctors consulting GPs. Several citizens advice bureaux report cases in which GPs have stopped signing medical certificates following pressure from the DSS. Input from GPs at an earlier stage would help avert conflicts of that kind which cannot be in the interests of disabled people.

The CAB service is concerned about the functional approach both to the new medical test and to other elements of the assessment of capacity for work. At Report stage my noble friend the Minister said that Benefits Agency doctors would be equipped:

"both with knowledge of the new [incapacity] benefit and the place in it of the clinical assessment of function and its relevance to the new more objective medical test".-[Official Report, 10/5/94; col. 1495.]

Benefits Agency doctors must be encouraged to take a broad view of the client's medical condition, enabling them to make fair and sensible judgments. Appeals are costly both for the client and the taxpayer and it is important that all relevant medical factors are taken into account early in the assessment.

Giving GPs the choice of commenting on their patients' capacity for work after 28 weeks of incapacity would give the Benefits Agency a wider picture of the client's medical condition at the examination than would otherwise be apparent. That would help allay patients' fears that their medical history will be ignored and it will alleviate the problem that some clients feel intimidated when they visit a doctor whom they have never met before and do not reveal to them the full extent of their disability. Without input by the GP, medical factors which are relevant to capacity for work may not always emerge during the course of the examination, especially as the doctor is likely to be seeing the person for the first time and may carry out only a brief examination.

Citizens advice bureaux evidence indicates that in some cases the difficulties outlined are leading to insensitive suggestions for alternative work or inappropriate withdrawals of benefit. I received a number of reports from CABs throughout the country that are typical. An example in the eastern region is that of a 53 year-old client, a former engineer, who suffers from chronic and continual back pain. He cannot sit or stand for more than 10 minutes at a time. He is unable to walk more than 150 yards, drive or use public transport. He needs bed rest for one hour at least twice daily. His doctor and the consultant say that he is incapable of any work. The DSS say that he could be a repetitive assembler, packer or light factory worker.

I could give many more examples, but owing to the lateness of the hour I shall not do so. I beg to move.

Baroness Masham of Ilton

My Lords, I support the amendment which will ensure that if a GP feels that it would be helpful to contribute to the assessment of a person's capacity for work he will be able to do so. It is a mild amendment. It does not compel GPs to participate if they do not wish to do so; it merely enables them to take part if they want to. If a patient is difficult or aggressive, they need not take part. Indeed, the patient can be removed from the doctor's list.

There has been considerable debate in both Houses on the importance of the role of general practitioners. It is widely recognised that the GP has a unique knowledge of a person's disability or ill health, with the implications that may have on the patient's ability to work. It is not in the interests of disabled people to deny doctors an important role in the assessment procedure. I believe that that should be written on the face of the Bill, otherwise general practitioners will not feel that they have a part to play.

A statement from a person's general practitioner could be critical to the accurate assessment of that person's capacity to work. There are also circumstances where someone has a rare disability or disease that the generality of doctors would not fully understand. In that situation a person's general practitioner is likely to possess important and unique knowledge that should be made available to the assessing doctor so that account can be taken of it. The doctor will also be able to take an accurate view of how the illness will affect a patient's capacity to work.

The amendment is important to ensure that decision making is as fair and well-informed as possible from everyone's point of view. It is important also for the smooth running of the whole system, from initial assessment to appeal. Input along the lines suggested in the amendment cannot but be helpful to the Benefits Agency doctors. We spoke of this matter during Report stage. But it is worth re-emphasising the point that it is the inaccurate and seemingly unfair decisions that will lead to an increase in appeals which may overburden the system. That is an inefficient use of taxpayers' money and very distressing for the disabled person concerned.

We should do all we can to ensure that such a situation does not arise. Disability, because it is so varied, can be extremely difficult to assess accurately in some cases. I hope the Minister will accept the amendment.

6.45 p.m.

Baroness Hollis of Heigham

My Lords, we on this side support the amendment and emphasise yet again that it is a modest but useful amendment. At the moment GPs assess people for invalidity benefit; half of their decisions are reviewed and in eight cases out of nine the GP's recommendation is upheld on appeal. The ninth case is often a mental health case, which is notoriously difficult to determine.

In future, once the Bill is enacted, the GP will determine sickness and eligibility for benefit for the first 28 weeks. Thereafter, his role will be dramatically narrowed and confined primarily to diagnosing the illness or disability. Any further consideration of the implication that the sickness or disability may lead to incapacity to work will be made by the BAMS doctor; that is, the Benefits Agency Medical Services doctor.

We have no doubt that BAMS doctors are being trained; they are experienced and will exercise their professional judgment as best they can. But last Tuesday in Norwich I spoke to a BAMS doctor assessor. He said that he usually had 20 minutes, or at best half an hour, with a prospective claimant. Obviously illness or disability with a well known medical profile like MS is easy to determine and relatively straightforward. But where he now faces difficulties is with illnesses where the medical history is more idiosyncratic, such as ME, where it is important to know about the person's well-being. He also said that interaction with the patient's family was significant; for example, in cases of asthma and moderate learning difficulties, which he picked out as being particularly difficult to assess.

In a diagnosis of ME he would need to know more about the family background, the personal history of the patient and the relationship of the patient with the family. The BAMS doctor I spoke to was a GP before he took early retirement to join BAMS. Indeed, he was my GP. He is a good, kindly, experienced, able man; a former Conservative councillor; a committed Christian who, despite his politics, delivered my babies healthily. We discussed the Bill and I discussed the amendment with him. I asked whether he, as a BAMS assessor, would welcome more input from the GP as reflected in the amendment. I asked whether he would support the amendment. He said that he did, very strongly, I asked whether I could quote him. Indeed I could, he said.

The doctor said that in the short time available for an interview he simply could not learn enough about the whole person and their medical profile. He would feel much more confident about the appropriateness of his recommendations were he to have the information which he believed only a GP was likely to be able to give. He said also-this had not struck me at all before my conversation with him on Tuesday -that he expected many more cases in future to go to appeal. As a BAMS panel doctor he said that he would feel much more confident that his recommendations would stick if he knew that he had taken into account the GP's view. If he and the GP were at one, then that recommendation was likely to prove much more robust. In other words, a GP turned BAMS doctor, "strongly" supports the amendment.

The amendment adds to the information that he as a BAMS doctor would have to draw on. That is the professional judgment of a GP trained to assess, as part of his clinical training, the whole person. More information from a reputable source must surely be better than less information when determining future benefits for sick and disabled people.

I repeat, it is a modest amendment which costs nothing in cash. It is entirely voluntary in that it would allow the GP to offer his professional clinical judgment if he thought it was relevant and useful, but he need not do so if he did not. It can be made to be entirely confidential so that no pressure from the patient need come into play to strong-arm the GP into making an assessment against his better judgment. As a result, if your Lordships were minded to accept the amendment today it would produce fairer judgments for the claimant, better informed recommendations by the BAMS doctor, and more robust decisions by the panel. The BMA has no objection to this amendment. If my former GP, a BAMS doctor, is anything to go by, the BAMS doctors would welcome the amendment. May we hope that the Government will do so as; well.

Baroness Robson of Kiddington

My Lords, on behalf of these Benches, in the absence of my noble friend Lord Russell, I want strongly to support the amendment. It is one of the amendments on the Marshalled List which I find particularly important. It has already been mentioned that doctors at the Benefits Agency have a very limited time to examine their patients. They may have the self-assessment and what has been said by the patients themselves, but they have too limited a time. The importance of the GP being able to make a statement is enormous. Not only in most cases does he know the patient and may have known him for years beforehand, but he also knows, on the whole, the background, the family surroundings and everything that is relevant to that applicant for a benefit. It would be a great step forward if the Government could accept that a statement made by a GP should be relevant to the granting of a benefit.

Lord Rix

My Lords, in rising to support the amendment perhaps I may seek clarification. The noble Baroness, Lady Hollis, in referring to her doctor, used the term "moderate learning difficulty". That is the second time I have heard the expression used in your Lordships' House today. If the reference by her GP to moderate learning difficulty was used, it is not in the context of this Bill. That applies to the Department for Education and not to the Departments of Social Security and of Health. I presume that the expression was intended to be "moderate learning disability", not "moderate learning difficulty".

Lord Wise

My Lords, I support the amendment. It ensures that the general practitioner retains the option of commenting on the client's medical condition and the way in which it may affect his ability to work. It does not put the onus back on the GP but allows him to provide further information if he wishes so to do. Many GPs want to be involved in the process, and it is surely accepted that GPs have an intimate knowledge and understanding of the patient's condition. In those circumstances it would surely be appropriate for them to have an input as indicated by the amendment.

My noble friend the Minister gave an assurance at Report stage that Benefits Agency doctors would be thoroughly trained to consider a client's medical history and that emphasis would be placed on the importance of fluctuation, variability and relapse in those medical conditions whmse nature is characteristically one of instability or variability. The amendment builds on that assurance-and we are grateful for it-by enabling doctors to have a specific input at an early stage in the process of the Benefits Agency's assessment of capacity for work. I hope my noble friend the Minister will feel inclined to accept the amendment.

Lord McColl of Dulwich

My Lords, I am sorry to have to disagree with the noble Baroness, Lady Hollis, about the views of the British Medical Association. The association has serious concerns about the amendment, and I share those concerns. The amendment could easily result in patients putting pressure on their GPs to provide them with written comments which may not always support the case their patients wish to make. That is the kind of situation which GPs wish to avoid. GPs are already under far too much pressure.

I understand that the adjudication officer who makes the ultimate decision would always have access to any information provided by the GP. There is nothing to stop GPs writing if they wish. In addition, the procedures will allow for the Benefits Agency Medical Service to contact GPs for any additional opinion or information which relates to the patient's condition. It is preferable that such information should be provided on a doctor to doctor basis in confidence. I would therefore suggest that the amendment is unnecessary and unwelcome.

Baroness Hollis of Heigham

My Lords, before the noble Lord sits down, given that he directly challenged an assertion I made about the BMA, I think it may perhaps be helpful if I repeat what I said. I said that the BMA did not object to the amendment. I was quoting from a letter of 16th May 1994 to the Disability Alliance. I quote: Although it would be necessary to discuss your proposals formally with elected members of the BMA's General Medical Services Committee (the GPs' committee), my view"- that is, of the head of private practice and professional fees- is that, were you to propose amendments to the Incapacity Bill along these lines they should, I feel, not meet with opposition from the medical profession". That is what I said and that is, I hope, accepted by the noble Lord as confirming the point I made that the BMA do not object to the amendments as set out by the noble Lord, Lord Swinfen.

Lord McColl of Dulwich

My Lords, I thank the noble Baroness for that intervention. Her letter is dated 16th May. I have a letter before me dated 17th May which confirms that we believe that a further amendment to Clause 5 is unnecessary. The letter is signed by Sue Marks, and I confirmed that in a telephone conversation two hours ago.

Baroness Cumberlege

My Lords, in the Government's view this amendment is not necessary and I shall explain to the House why. There are two elements to the amendment: first, that a claimant's GP should have the opportunity to make a statement about his patient's medical condition and any other medical factors that he considers relevant; and, secondly, that this statement shall be taken into account in determining capacity for work. However, I can assure your Lordships that our proposals for assessment include both those elements. They will be set out in regulations made under this clause, the proposed Section 171C(2).

On the first point, we shall in every case require the GP to state the claimant's diagnoses and disabling conditions. If the GP wishes to write a fuller report, that would be extremely welcome. The more medical evidence the department has, the easier it will be to make an accurate assessment. There is no question of refusing evidence. As noble Lords are aware, in the majority of cases the Benefits Agency will send the claimant a questionnaire to complete. There will be space on the questionnaire to allow the claimant to express any information which he believes is relevant to his claim. That questionnaire is the first step in the gathering of evidence and emphasises our wish that claimants should be involved.

The next stage is that the claimant's GP will write a medical statement of diagnoses and disabling con-ditions. That medical evidence is a necessary part of gaining all relevant information and is crucial to the assessment. The difference between the new system and the current one is that the GP's statement will not be an opinion to refrain from work, and the GP will not have to provide repeated sick certificates. The statement on the questionnaire will normally be all that is required.

I can only reiterate that the more information the GP supplies, the easier it is for departmental doctors to give advice and for adjudication officers to make decisions. We would welcome, for example, a statement by a GP which said that, in the GP's opinion, if the claimant returned to work his condition would worsen considerably.

The second part of the amendment seeks to ensure that any statement made by a GP will be taken into account in determining capacity for work. Again, I can assure your Lordships-and particularly the noble Baroness, Lady Hollis-that that is precisely what our proposals are designed to do in assessing claimants. When all the information has been gathered from the GP and the claimant, the case may be referred to a BAMS doctor for further medical advice. The doctor will consider all the evidence collected so far. The doctor will look at the claimant's medical history and the information submitted by the claimant and his GP. He will examine the claimant when necessary and will produce a report giving his opinion on the extent of the claimant's functional limitations. If the GP has chosen to write more than the statement of diagnosis and disabling conditions, then this further information will also be taken into account.

The BAMS doctors will be thoroughly trained. I am grateful to the noble Baroness, Lady Masham, and other Members of the House who mentioned the undertakings I gave at Report stage. The BAMS doctors will be thoroughly trained in the workings of the new assessment procedure and will have the help of written guidance. The guidance will stipulate that all relevant information must be taken into account in formulating the medical advice.

My noble friend Lord Swinfen again said that he felt it was essential that doctors had sufficient training. All relevant factors will be taken into account by the BAMS doctors who will also liaise very closely with the GPs. That partnership is crucial. We want to see it working well. But in the final stage of the process there will be adjudication on the claim. An adjudication officer will weigh all the available evidence in reaching a decision on the claimant's level of functional limitation. He will then apply the scores and thresholds laid down in regulations and determine the claimant's entitlement to benefit.

The new medical test is designed to be an improvement on the current system. It does not, in any way, restrict the consideration of relevant medical evidence. The new test creates a clearer and more defined test for establishing incapacity for work than currently exists.

My noble friend Lord Swinfen was concerned about inappropriate withdrawals under the current scheme. We believe that under the new scheme that will be much less likely. The test will be more objective and decisions more soundly based and understandable to claimants. They will no longer be decisions based on ability to do bizarre jobs which has been a major criticism of the current scheme and a matter frequently raised in your Lordships' House during the passage of the Bill.

The noble Baronesses, Lady Hollis, and Lady Robson, expressed anxiety about the time spent by BAMS doctors with individual patients. The noble Baroness, Lady Hollis, cited the opinion of an individual GP. In no way do I want to underrate an individual opinion, but when one looks at the matter statistically it is interesting that the general medical practitioners' workload survey of 1992-93 shows that the average length of surgery consultation per patient was 8.4 minutes. That compares with an estimated average of 35 minutes which will be devoted to the examination by the BAMS doctor.

The noble Baroness, Lady Hollis, was concerned about idiosyncratic histories. In those circumstances BAMS doctors will seek as much information as possible from the patient's GP. That is an integral part of the procedures we hope to introduce. The BAMS doctor mentioned by the noble Baroness will no doubt welcome the freedom he will be given in working in close collaboration with GPs in future.

I am very grateful to my noble friend Lord McColl who expressed the concerns of the BMA. I suspect that he is the only person in the Chamber tonight who is a member of that association. His views are ones which we have heard and they have been shown in the survey and in the medical press. Under the new assessment we shall be seeking a statement from GPs. We will not ignore any additional evidence that GPs may give. Given those reassurances I hope that your Lordships will agree that the amendment is not necessary.

7 p.m.

Baroness Masham of Ilton

My Lords, before the Minister sits down and with the leave of the House, perhaps I may ask her a question. With so much care in the community now being done by the social services, general practitioners may well believe that it is not their duty to do what is suggested in the amendment unless it is written into the Bill. There is now confusion over who does what because of care in the community. What happens if a GP does not give the information asked for by the assessing doctor?

Baroness Cumberlege

My Lords, I cannot believe that that situation will arise. In my experience GPs are conscientious. They recognise that they have respon-sibility for their patients and are very closely involved with care in the community. All the measures which we have introduced seek to involve GPs. There is no evidence at all that they are not closely involved.

Lord Swinfen

My Lords, in listening to the exchange between my noble friend Lord McColl and the noble Baroness, Lady Hollis, it is quite obvious that when there are two doctors there are three opinions. There seems to be different information coming from the BMA to both sides of the House, or a different interpretation. It may be that a different question is being asked.

My noble friend is a greatly respected consultant to whom patients are referred. He would not expect to have a patient referred to him without a report from his GP. Why should the BAMS doctor have someone referred to him without a report from his GP? A diagnosis does not give the full story. I know that the amendment does not make it compulsory that there should be a full report, but it does give the GP the opportunity to make one. My noble friend Lady Cumberlege agreed with the noble Baroness, Lady Hollis, that the BAMS doctor would probably see an individual for about 30 minutes. I believe that she mentioned 8.4 minutes as the period of consultation with the GP. But that is 8.4 minutes after 8.4 minutes after 8.4 minutes going on for weeks, months and possibly years with the GP getting to know the individual. Therefore, the two situations are not comparable.

My noble friend said that the assessment team would accept further information but not invite it. That is all the more reason for writing into the Bill the fact that the doctor has the opportunity to offer that information. It is absolutely essential. If I were in that position I doubt very much whether I would want an assessment for capacity for work to be made in only 30 minutes and outside. I doubt very much whether my noble friend would want that. I have no alternative but to seek the opinion of the House.

Baroness Cumberlege

My Lords, with the leave of the House perhaps I may make one point clear. The regulations will require GPs to give the necessary information. I believe that was the point raised by the noble Baroness, Lady Masham. A great deal of evidence will come from GPs. There is no reason to believe that they will not want to do their very best for their patients, as they do in other circumstances.

7.8 p.m.

On Question, Whether the said amendment (No. 10) shall be agreed to?

Their Lordships divided: Contents, 62; Not-Contents, 90.

Division No. 4
CONTENTS
Addington, L.	Dean of Thoniton-le-Fylde, B.
Airedale, L.	Desai, L.
Archer of Sandwell, L.	Donoughue, L.
Beaumont of Whitley, L.	Dormand of Easington, L.
Blackstone, B.	Ennals, L.
Boston of Faversham, L.	Gallacher, L.
Bottomley, L.	Gould of Potternewton, B.
Brentford, V.	Graham of Edmonton, L.
Brooks of Tremorfa, L.	Hamwee, B.
Carter, L.	Haskel, L.
Cledwyn of Penrhos, L.	Hollick, L.
Clinton-Davis, L.	Hollis of Heigham, B.
Craigavon, V.	Hughes, L.
Darcy (de Knayth), B.	Hylton, L.

Jay of Paddington, B.	Robson of Kiddington, B.
Jenkins of Hillhead, L	Rochester, L.
Kilbracken, L.	Rodgers of Quarry Bank, L.
Lawrence, L.	Seear, B.
Leigh, L.	Serota, B.
Mallalieu, B.	Shannon, E.
Masham of Ilton, B.	Stoddart of Swindon, L.
McCarthy, L.	Swinfen, L. [Teller.]
McIntosh of Haringey, L.	Tonypandy, V.
Milner of Leeds, L.	Tordoff, L.
Molloy, L.	Turner of Camden, B.
Monkswell, L.	Wharton, B.
Murray of Epping Forest, L.	White, B.
Nicol, B.	Williams of Crosby, B.
Pitt of Hampstead, L.	Williams of Elvel, L.
Richard, L.	Williams of Mostyn, L.
Rix, L.	Wise, L. [Teller.]

NOT-CONTENTS
Addison, V.	Henley, L.
Aldington, L.	Hesketh, L.
Annaly, L.	Hood, V.
Arran, E.	Howe, E.
Astor, V.	Jeffreys, L.
Atholl, D.	Kitchener, E.
Balfour, E.	Long, V.
Blatch, B.	Lyell, L.
Blyth, L.	Mackay of Ardbrecknish, L.
Boardman, L.	Macleod of Borve, B.
Boyd-Carpenter, L.	McColl of Dulwich, L.
Braine of Wheatley, L.	Mersey, V.
Brougham and Vaux, L.	Milverton, L.
Buckinghamshire, E.	Morris, L.
Burnham, L.	Mountevans, L.
Byron, L.	Munster, E.
Cadman, L.	Murton of Lindisfame, L.
Carnegy of Lour, B.	Norrie, L.
Carnock, L.	Northbrook, L.
Clark of Kempston, L.	Orkney, E.
Cochrane of Cults, L.	Orr-Ewing, L.
Colwyn, L.	Oxfuird, V.
Courtown, E.	Pender, L.
Craigmyle, L.	Perth, E.
Cranborne, V.	Reay, L.
Cumberlege, B.	Rodney, L.
Dean of Harptree, L.	Seccombe, B.
Denham, L.	Sharpies, B.
Denton of Wakefield, B.	Skelmersdale, L.
Dilhorne, V.	Skidelsky, L.
Downshire, M.	Soulsby of Swaffham Prior, L.
Eccles of Moulton, B.	St. Davids, V.
Eden of Winton, L.	Stewartby, L.
Elles, B.	Strathclyde, L.
Elliott of Morpeth, L.	Strathcona and Mount Royal, L.
Elphinstone, L.	Strathmore and Kinghorne, E.
Elton, L.	[Teller.]
Ferrers, E.	Sudeley, L.
Fraser of Carmyllie, L.	Swinton, E.
Gisborough, L.	Trumpington, B.
Goschen, V.	Ullswater, V. [Teller.]
Gridley, L.	Vinson, L.
Hacking, L.	Vivian, L.
Hailsham of Saint Marylebone, L.	Wakeham, L. [Lord Privy Seal]
Harmsworth, L.	Young, B.
Hayhoe, L.

Resolved in the negative, and amendment disagreed to accordingly.

7.16 p.m.

Clause 6 [Test of incapacity for work: supplementary provisions]:

Viscount Astor moved Amendment No. 11:

Page 15, line 40, after ("(6)") insert (", (7)").

The noble Viscount said: My Lords, I beg to move this small technical amendment. It ensures that the procedure applies to the regulations made under Section 171B(7) of the Act which allows the application of the own-occupation test to people who have more than one job in the prescribed period or do more than one job at a time. I beg to move.

On Question, amendment agreed to.

Clause 9 [Severe disablement allowance]:

Lord Rix moved Amendment No. 12:

Page 17, line 15, at end insert: ("( ) In subsection (1) leave out "(a)" and "or (b) the conditions specified in subsection (3) below"; in subsections (2) (b) leave out sub-paragraph (i) and leave out subsections (3) and (6)").

The noble Lord said: My Lords, I am conscious that we are at a late stage in the examination of a Bill which is as complicated as it is controversial. I have never had to take part in any Greek drama, but there are times when I feel that the text of my brief on the Bill makes me reflect that it must be very difficult to make a speech in a language that one does not understand.

Since there has been much correspondence off stage, as well as earlier debates, I shall spare your Lordships by being as concise as possible. I am just a little uneasy that that intended courtesy may leave those for whom the history of incapacity benefit has not been their favourite bedside reading wondering what on earth I am talking about.

The amendment deletes the additional disability conditions for severe disablement allowance and leaves the sick or disabled person without contributions to satisfy the same new incapacity test as a sick or disabled person with contributions. Some of the disabled people who would benefit from the amendment are people with learning disabilities—people who seldom have the opportunity to work and pay contributions. I anticipate the Minister's response by saying that I accept that most of that group will not find their double test, in whatever form it takes, a major hurdle. I am arguing for the principle for all and the practical consequences for some.

We did not pursue the same amendment on Report since the noble Lord, Lord Carter, and I received letters from the Minister in the few hours before the debate began, and both courtesy and common sense dictated that we should take time to reflect upon those letters. Having reflected, we return to the fray better informed about the Government's view, but not persuaded by it.

Summed up a little breathlessly, but not, I hope, misleadingly, the sequence of events is as follows: in the 1970s, non-contributory versions of invalidity benefit were introduced. No extra test beyond the usual medical certificate applied to most of those affected. Married women, however, had to satisfy an extra test of incapacity for household duties. In 1984, that unsustainable discrimination was abandoned by introducing a new benefit—the severe disablement allowance. That had an extra 80 per cent. disablement test on top of the incapacity for work test—a sort of 80 per cent. on the Richter scale of disablement—though young claimants, those who already had one of the two previous benefits, and people receiving the then attendance allowance could qualify on that basis rather than having to satisfy the 80 per cent. test.

The Government argue that leaving severe disablement allowance, which no one has seen as a problem, as little changed as possible by the Bill means replacing the medical certificate by the new incapacity for work test and leaving in place the existing 80 per cent. test or its alternative. The Government also argue, though not I think with any great confidence on these figures, that to rely upon the new incapacity for work test alone would cost £20 million a year in extra benefits. I and those who support me argue that the real reason for the original SDA double test was doubt about the ability of the GP certificates to screen out married women with real but minor disabilities and health problems. With the new "incapacity for work" test under the Bill, there is no need for an extra test. To impose one is unreasonable and unfair.

If Clause 9 remains as it stands, we are faced with a division of those claimants who because of sickness or disability are unable to work. They will be divided into those regarded as incapacitated who will receive incapacity benefits, those regarded as unemployed but not incapacitated who will have to turn to unemployment benefits, and those without contributions who are regarded as incapacitated but not sufficiently disabled who will receive income support or nothing. That seems less social policy than confusion. I do not understand it and I cannot see claimants understanding it. I fear that the Minister is having considerable difficulty in explaining it. I beg to move.

Baroness Darcy (de Knayth)

My Lords, I wholeheartedly support the amendment so comprehen-sively moved by my noble friend Lord Rix. He said that with the new medical test under the Bill there is no need for an extra test and to impose one is unreasonable and unfair. Is it not really rather daft to continue to impose this dodo of a test which is left over from the NCIP in the 1970s when claimants will now have to undergo the more stringent incapacity test?

Whether the tests are carried out at the same time, therefore causing little extra hassle, is not the point. "Unnecessary" is a favourite word of the Government, as was pointed out by the noble Earl, Lord Russell. The Government reject the unnecessary. The 80 per cent. test is unnecessary; it is obsolete. I hope that the Minister will respond positively and bury this dinosaur by accepting the amendment.

Lord Carter

My Lords, in moving the amendment the noble Lord, Lord Rix, explained the background extremely well. We received a letter from the noble Viscount, Lord Astor, on 9th May in which he attempted to explain the situation. I have read the letter three times and it is like so many letters that one receives from the Department of Social Security. I am sure that it read much better in the original Sanskrit.

The letter appeared to confirm this extraordinary division that the department had created; proposing the division between the people who are able to work into those regarded as incapacitated, those regarded as unemployable but not incapacitated and those who are accepted as incapacitated but not regarded as sufficiently disabled. There is a real confusion in that and throughout the Bill we have heard that the Government intend to simplify the social security regulations and so forth. That provision seems only to add to the confusion.

As drafted, the Bill is hardly designed to achieve the simplification that we wish to achieve. The amendment would put that right and I hope that the Minister will accept it.

Lord Swinfen

My Lords, the amendment seems to me to be eminently suitable. For my noble friend on the Front Bench not to accept it would be absolutely farcical. Why do the Government not take the advice of an expert in farce and accept the amendment?

Baroness Masham of Ilton

My Lords, if there are to be two tests will the doctor carrying them out be paid twice?

Viscount Astor

My Lords, the purpose of the amendment is to remove the 80 per cent. disability qualifying test for severe disablement allowance on the grounds that it will not be needed in future with the new test of incapacity. We debated the amendment in Committee. As the noble Lord, Lord Rix, said, I wrote to him before the Report stage and I placed a copy of that letter in the Library. I also sent a copy to the noble Lord, Lord Carter. I am sorry that it was not as crystal clear as he might have wished. I am also sorry that my noble friend Lord Swinfen appears to have had problems in understanding it. So, with your Lordships' permission, I shall try to be as clear as I can in explaining not only my letter but my argument. I believe that I shall be able to reassure your Lordships on this point.

As I have explained, the 80 per cent. disability test is a vital element in deciding who has the greatest need of the finite resources available for SDA. The disability test is needed in addition to confirmation of incapacity and will continue to be needed in the future.

The noble Lord, Lord Rix, has attempted to show that the disability test has no place as a substitute test for the household duties test that existed under non-contributory invalidity pension (NCIP). However, I do not believe that this is a true comparison and I shall attempt to explain why that is the case. The disability test was never intended as a substitute for the household duties test. This argument assumes that SDA is NCIP but by another name. This is not so. SDA was introduced in 1984 as a new benefit to focus help on the severely disabled who have not been able to satisfy the contribution test. If any comparison is to be made, therefore, it is the position of SDA before and after April 1995.

The primary qualification for SDA is that a person must be incapable of work. He or she must also be continuously incapable of work for 28 weeks. These qualifying conditions mirror the arrangements for paying the short-term higher rate of incapacity benefit. In applying an incapacity test it is therefore logical and correct to use the same one as for incapacity benefit.

In Committee I made the point that the incapacity and disability tests are different tests serving different purposes. Both tests exist in the current scheme and will continue in the new scheme. The incapacity test will test only a person's ability to do work. It is not a test of his or her ability to lead a normal life. This is the purpose of the disability test, which takes into account all disabling conditions not just those related to work. On the introduction of SDA in 1984, it was explained that the 80 per cent. disability test had nothing to do with the "incapacity for work" test. That will still be the case from April 1995.

I must again stress that SDA is aimed at the most severely disabled. By targeting on this group we are able to make the maximum use of limited resources.

We recognise that some people have not had the chance to build up sufficient contributions to qualify for incapacity benefit. We will therefore carry over the provision that those whose incapacity began before they were age 20 will not have to satisfy the disability test.

Passporting provisions will also allow some people to be treated as having satisfied either or both the incapacity and disability tests without the need for a medical examination.

Those who are terminally ill, or in receipt of the highest rate of DLA care component, or who have certain listed conditions such as severe learning difficulties, can be deemed as satisfying the incapacity test without the need for a medical examination. Those who are in receipt of the highest or middle rates of DLA, or who are registered blind or partially sighted, or in receipt of a vaccine damage payment or in certain other specified groups will not be tested for their disability as now.

Of course, the majority will not need examinations as they will be passported onto SDA. Where examinations are needed for both tests arrangements will be made for these to be done at the same time. I can assure noble Lords that no one will be required to attend for two separate medical examinations—one for incapacity and one for disability—in connection with the same claim. I confirm that a doctor will not receive a fee for the two tests because it will be one examination. I hope the noble Lord, Lord Rix, will be reassured by this important change. Although some people have only had to have one examination others have not. I am giving a clear undertaking that from April 1995, when the new test is introduced, there will be no need for more than one examination. It has always been our intention with the new scheme to ensure that the most severely disabled are inconvenienced as little as possible.

SDA is a non-means-tested benefit and a non-taxable benefit. As previous assurances have made clear, the structure of ADIs and age additions is not being changed by the Bill. The effect of that means that those who have not paid contributions could be better off than those who have. The 80 per cent. test ensures that the severely disabled may be advantaged in that way and that is thoroughly defensible.

I hope that with that somewhat lengthy and complicated explanation, I have made clear the Government's intentions and views. I know that the noble Lord, Lord Rix, had very proper anxieties on this subject, but I hope that I have reassured him sufficiently to enable him to withdraw the amendment.

7.30 p.m.

Lord Carter

My Lords, before the noble Viscount sits down, can he give the House an indication of the number of claimants which the department believes will be subject to that single examination for a dual test?

Viscount Astor

My Lords, I do not have the figures with me. The important point that I was making was that there will be one test and not two.

Lord Rix

My Lords, I am very grateful to the Minister for his reply. It did not in fact give too much away to me by way of clarification. However, I am delighted to accept his assurance with regard to the one test.

With the lateness of the hour, and in view of the fact that arguments about this matter will clearly rage for some months to come outside your Lordships' House, I shall not press the amendment to a Division. To do so at this stage would be more of a gesture than a means of gaining ground. The Minister is clearly convinced that he has answered the points which I raised. I am slightly confused and not absolutely certain that he has. However, I ask that the SDA claims, awards and rejections are monitored closely so that we can see what is happening and have an opportunity for second thoughts in the light of experience. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 [Consequential amendments]:

Viscount Astorb moved Amendment No. 13:

Page 21, line 24, at end insert ("under section 30A below or short-term or long-term incapacity benefit under section 40 or 41 below").

The noble Viscount said: My Lords, in moving Amendment No. 13, I propose to speak to Amendments Nos. 14 to 35. All these amendments are consequential on the amendments to the Bill made in Committee and on Report which introduced special arrangements for people who are terminally ill. They are required to ensure that widows and widowers who are terminally ill can benefit from the concession introduced in Committee to pay the higher rate of benefit from the 29th week of incapacity. The number of people affected is comparatively small but the amendments offer significant improvements in these cases. I beg to move.

On Question, amendment agreed to.

Viscount Astor moved Amendments Nos. 14 to 35:

Page 21, line 27, at end insert ("under section 30A above"). Page 25, line 1, leave out ("long-term"). Page 25, line 16, at end insert: ("(3A) A woman to whom this section applies who is not entitled to long-term incapacity benefit under subsection (3) above, but who is terminally ill, is entitled to short-term incapacity benefit under this section for any day of incapacity for work which—

1. (a) falls in a period of incapacity for work that began before the time when her late husband died or she subsequently ceased to be entitled to a widowed mother's allowance, and
2. (b) is after that time and after the first 196 days of incapacity for work in that period.

For the purposes of this subsection a woman is terminally ill if she suffers from a progressive disease and her death in consequence of that disease can reasonably be expected within 6 months"). Page 25, line 17, leave out ("long-term"). Page 25, line 26, leave out ("long-term"). Page 25, line 29, after ("(3) (a)") insert ("or (3A) (a)"). Page 25, line 36, at end insert:

1. ("(6) Where a woman entitled to short-term incapacity benefit under subsection (3A) above attains pensionable age and defers her entitlement to a Category A pension or makes an election under section 54(1) below, the days of incapacity for work falling within the period of incapacity for work mentioned in that subsection shall, for the purpose of determining any subsequent entitlement to incapacity benefit under section 30A or the rate of that benefit, be treated as if they had been days of entitlement to short-term incapacity benefit.
2. (7) References to short-term incapacity benefit at the higher rate shall be construed as including short-term incapacity benefit payable under subsection (3A) above.").

Page 25, line 44, leave out ("long-term"). Page 26, line 2, at end insert: ("(2A) A man to whom this section applies who is not entitled to long-term incapacity benefit under subsection (2) above, but who is terminally ill, is entitled to short-term incapacity benefit under this section for any day of incapacity for work which—

1. (a) falls in a period of incapacity for work that began before the time when his wife died or within the prescribed period after that time, and
2. (b) is after that time and after the first 196 days of incapacity for work in that period.

For the purposes of this subsection a man is terminally ill if he suffers from a progressive disease and his death in consequence of that disease can reasonably be expected within 6 months."). Page 26, line 3, leave out ("long-term"). Page 26, line 6, leave out ("long-term"). Page 26, line 9, after ("(2) (a)" insert ("or (2A) (a)"). Page 26, line 18, at end insert:

1. ("(5) Where a man entitled to short-term incapacity benefit under subsection (2A) above attains pensionable age and defers his entitlement to a Category A pension or makes an election under section 54(1) below, the days of incapacity for work falling within the period of incapacity for work mentioned in that subsection shall, for the purpose of determining any subsequent entitlement to incapacity benefit under section 30A or the rate of that benefit, be treated as if they had been days of entitlement to short-term incapacity benefit.
2. (6) References to short-term incapacity benefit at the higher rate shall be construed as including short-term incapacity benefit payable under subsection (2A) above.").

Page 26, line 29, leave out ("long-term"). Page 26, line 36, leave out ("long-term"). Page 26, line 40, leave out ("long-term"). Page 26, line 46, leave out ("long-term"). Page 27, line 4, leave out ("long-term"). Page 27, line 7, leave out ("long-term"). Page 32, leave out lines 23 and 24 and insert:

("(4) For paragraph 5 substitute—

"Incapacity benefit for widows and widowers

5. Paragraph 1 above does not apply for the purpose of determining whether the conditions specified in section 40(3) or (3A) or section 41(2) or (2A) above are satisfied.".").

Page 33, line 15, leave out ("long-term"). Page 33, leave out lines 19 to 22 and insert:

1. ("(a) for paragraph (a) substitute—

1. "(a) short-term incapacity benefit;"; and
2. (b) for paragraph (c) substitute—
3. "(c) long-term incapacity benefit;".").

On Question, amendments agreed to.

7.34 p.m.

Viscount Astor

My Lords, I beg to move that the Bill do now pass.

We have examined the Bill in considerable detail in Committee, last week on Report and today on Third Reading. I extend my thanks to noble Lords on the opposite side, particularly the noble Baronesses, Lady Hollis and Lady Turner of Camden, the noble Lord, Lord Carter, and the noble Earl, Lord Russell, who have all contributed to our debates on this Bill. We have not always agreed but there has been much common ground among us.

On my side I would particularly like to extend my thanks to my noble friend Lady Cumberlege who with her expert knowledge of the subject has taken us through the complexities of the medical test and I am extremely grateful to her for her help. Indeed, I am also grateful to my noble friend Lord Goschen for helping me to provide answers to your Lordships. I must also mention the contribution of my noble friend Lord Swinfen, who powerfully and clearly presented his amendments to your Lordships. He has always represented the cause of the disabled and we are grateful to him for that. I should mention too the contributions of my noble friends Lord Zouche, Lord Wise and Lord Milverton, and not forgetting the noble Baronesses, Lady Darcy (de Knayth) and Lady Masham. I thank the noble Lord, Lord Rix, on the Cross Benches, and last but not least my noble friend Lord McColl, who has made valuable contributions to our debates from his expert knowledge in the medical field.

During the passage of this Bill we have listened carefully to concerns of your Lordships and I have been able to make a number of important announcements during the passage of the Bill, all of which are designed to protect the most vulnerable or help with the transition back to work. We have also listened carefully to what has been said about the most vulnerable group, the terminally ill. In response we have brought forward the highest rate of benefit for people who are terminally ill to the 29th week of incapacity.

We recognise the importance of training in helping the long-term sick make the transition back to work. But we also accept that, if people are to be encouraged to try a return to work, they must feel certain of returning to the higher rates of benefit. We have therefore broadened the application of the training long-linking rule.

We have extended the qualifying period for the own-occupation test to make sure that as many people as possible are assessed against their own job for the first 28 weeks of incapacity. Those who are able to do so can undertake voluntary work for a wide range of public bodies. The hours limit on therapeutic work has been removed for people who do therapeutic work under medical supervision while in a hospital or other institution. I have also announced three improvements to DWA which will be a very important incentive for disabled people to move into work. The importance of this House as a revising Chamber has once again been clearly demonstrated.

The Government remain committed to the contributory principle. Incapacity benefit will provide a basic level of income for those who are unable to work, regardless of other income or savings. This can be topped up by occupational sick pay, a pension or any other income. Income related benefits will continue to be available to those that need them. The reforms focus the benefits on those who cannot work and will be sustainable into the next century.

If left unattended, spending on invalidity benefit, already over £6 billion a year, would grow by a further 50 per cent. or more in real terms by the end of the decade. Governments across Europe, in North America and Australasia are all considering reforms in this area and are considering our proposals with interest. I believe that any responsible government must take steps to deal with such rapid and sustained growth.

Before sitting down, I should like to pay one final tribute to the voluntary organisations which have contributed their knowledge and experience to the debate both directly and indirectly. I am sure the whole House will join me in extending our thanks to them. I commend the Bill to the House.

Moved, That the Bill do now pass.—(Viscount Astor.)

Baroness Hollis of Heigham

My Lords, this is a time of thanks and on these Benches we should like to record our appreciation for the courtesy of both Ministers and the helpfulness of their civil servants who have taken the time on several occasions to offer us briefing sessions and points for discussion.

It is also a time at which to pay tribute to the all-party support for the amendments that have been moved. I believe that we owe special thanks and appreciation to the noble Lord, Lord Swinfen. It is not easy to move a series of amendments against the Government Front Bench with such information, eloquence and dignity. He did that on behalf of people from whom we do not always hear; that is, the disabled outside this House. By their support for the disabled, the noble Lord and some of his colleagues have maintained the reputation of some parts of the Conservative Party and they should be commended warmly.

I thank warmly the Cross Benches, led by the noble Baronesses, Lady Darcy (de Knayth) and Lady Masham, who have consistently argued from personal experience as to the situation of disabled people when they face adjustments to benefit and adjustments with regard to medical tests. We thank those on the Liberal Benches and those on the Bishops' Benches, in particular the right reverend Prelate the Bishop of Coventry, who has graced the debate with several of his contributions.

I should like a special thank-you to be extended to my colleagues on these Benches, my noble friends Lady Turner and Lord Carter, who know far more about these subjects than I do. I should like to thank them for their continuous and reliable contributions. Finally, I should like to express my thanks to our special advisers who have sat patiently in the Box. I do not doubt that they were much frustrated both by their inability not to be able to make the speeches themselves and by their not being able to get the notes to us in due time. I believe that the noble Earl wishes to make an observation. I give way.

The Minister of State, Home Office (Earl Ferrers)

My Lords, I wish only to say that it is not customary to refer to people in the Box.

Baroness Hollis of Heigham

My Lords, in that case, I suggest that it is a convention which might well be amended in the light of the contributions that we have had, and given the fact that the Minister himself paid tribute earlier to the voluntary organisations that are represented by those same special advisers in the Box. However, I believe that the noble Lord the Deputy Leader of the House was not present in the Chamber to hear that tribute.

The Bill has centred on two issues; first, the level of benefits paid to disabled people, and, secondly, the medical tests. As regards the level of benefits, we have indeed seen some improvements. There was a government amendment which we warmly welcomed moved on behalf of the terminally ill. There were also amendments tabled by the noble Lord, Lord Swinfen, with all-party support, which were moved, on the one hand, on behalf of families with children, and, on the other, on behalf of those disabled people experiencing or enjoying the higher rate of DLA. We are glad that those amendments were passed. The voices collected from all sides of the House on behalf of disabled people were heard and such issues were voted upon. With proper respect, I believe that the House of Lords played its appropriate role. However, we were not able to make such improvements to the medical test, although some aspects of it will have gained in clarity. We welcome that fact.

In January, the House debated a Bill on statutory sick pay which transferred the cost of SSP from all of us as taxpayers to employers and thus ensured that sick people seeking to return to work now carry a negative dowry in perpetuity. That was unfortunate; but it is gone. More recently we saw the shenanigans—I think that is the right word—of what happened to the Civil Rights (Disabled Persons) Bill which sent out a signal about procedures in another place showing them as being of perhaps less than the highest repute.

The amendments to the Bill, some passed with government support and others passed against the Government, will now return to another place for consideration. Given the strength of views expressed in this House and the way that disabled people may possibly and properly feel that the Government have not had their best interests at heart as regards the events of the past three months concerning SSP and the civil rights Bill, and given the modest financial implications of the amendments and the significance that they have for disabled people, I hope very much that the Government will at least accept, respect and not seek to overturn the amendments in another place before the Bill finally returns to us on the way to enactment.

Baroness Robson of Kiddington

My Lords, I rise to speak on behalf of my noble friend Lord Russell who, unfortunately, is unable to be present. He has asked me to express his warm thanks to the two Ministers concerned for the helpful way in which they have guided the legislation through the House. My noble friend also wishes to thank all those who took part in the meetings, including that held with the doctors of the British Medical Services agency.

We on these Benches also welcome the amendments carried on Division. We wish them a fair wind in another place. We regret that the changes were not more significant. However, there is time for wiser thoughts to prevail. I hope that they will. If not, we shall be reversing the provisions of the Bill within three years of its coming into force.

Lord Swinfen

My Lords, the Navy would have been proud of my two noble friends on the Front Bench. My noble friends Lady Cumberlege and Lord Astor have been in the middle of a lonely sea with cannon shot coming at them from all directions. But they are still here and smiling, despite the fact that they have hardly heard a word said in favour of anything they pronounced during the whole course of the Bill's passage. I congratulate both for sticking it out and corning through.

I also thank my noble friends for the courteous manner in which they have discussed the Bill with me outside the Chamber. That has been most helpful. Despite that, I have continued to press my points and, I am glad to say, with a little success both last week and this week. I do not know what the Minister in the other place will decide to do with the amendments. I hope that he will not be too over-zealous and that he will feel able to leave them in the Bill. From the point of view of those whom it concerns, there are considerable benefits to be: had at very small cost.

I intend to continue fighting the corner for disabled people. However, at the same time, in an age of change with an ageing population, with more people surviving with very severe disabilities after accident, illness or birth, and with a reduced number of people actually in the workforce, I realise that it will be extremely difficult. Nevertheless, I feel that any civilised society must look very carefully at those people who need support. The task has to be undertaken at whatever cost necessary for our own sake, let alone for theirs.

On Question, Bill passed, and returned to the Commons with amendments.