HL Deb 30 March 1995 vol 562 cc1755-60

6.1 p.m.

The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish)

rose to move, That the draft regulations laid before the House on 2nd March he approved [12th Report from the Joint Committee].

The noble Lord said: My Lords, I beg to move that the draft Social Security (Incapacity for Work) Miscellaneous Amendments Regulations 1995, which were laid before the House on 2nd March, be approved.

These regulations introduce a number of minor changes to the regulations which the House debated and approved on 9th February: the Social Security (Incapacity Benefit) Transitional Regulations 1995 and the Social Security (Incapacity for Work) (General) Regulations 1995. They also introduce a minor amendment to the 1976 Social Security (Medical Evidence) Regulations.

The new system of benefits for incapacity comes into force on 13th April. These regulations complete the detailed provisions which will govern the operation of the new system. When introducing major structural reforms, such as this clearly is, there is always likely to be the need for some clarifying amendments. That is the sole purpose of the regulations before us today. Indeed, I foreshadowed them when I spoke in the debate on 9th February. The regulations before us today introduce no change in the Government's stated policy.

Today's debate reflects the unusual procedures for parliamentary scrutiny which are laid down in the Social Security (Incapacity for Work) Act. Any regulations introduced under certain powers in that Act within four years of Royal Assent must be passed by an affirmative resolution of each House. This novel approach, proposed by my department, meets concerns raised directly by the Select Committee on the Scrutiny of Delegated Powers during the passage of the Social Security (Incapacity for Work) Bill. It ensures parliamentary debate of any changes, however minor, which are introduced during the infancy of the new arrangements.

A number of these amendments are beneficial in nature, and some follow enquiries from organisations representing disabled people. For example, following concerns raised by the Terrence Higgins Trust, we are making a slight change to the wording of the regulation which will exempt people suffering from immune deficiency states from the all-work test. This is a complex provision, and we want to be absolutely sure that it covers all the people we wish to exempt from the test. We have also added to the list of exempt conditions people receiving certain categories of the constant attendance allowance which may be paid with war pensions or industrial injuries benefit. We have uprated the weekly earnings limit for therapeutic work to £44.

The minor amendment to the Social Security (Medical Evidence) Regulations 1976 is necessary to ensure that rules which govern the completion of medical certificates by GPs will apply also to the new certificate, the Med4, which will be issued when the all-work test is applied.

We believe that the measures to be introduced this April will ensure proper provision for those people who are incapable of working because of their medical condition within a system which is also fair to the taxpayer. The regulations before us today complete the detailed provisions of the new arrangements, and I commend them to the House.

Moved, That the draft regulations laid before the House on 2nd March be approved [12th Report from the Joint Committee].—(Lord Mackay of Ardbrecknish.)

Lord Carter

My Lords, the House will be grateful to the Minister for explaining the purpose of these amending regulations. I do not intend to repeat all of the arguments which were rehearsed at length when we debated the Bill last summer. We know that the Act is to take effect in April. The Act will eventually save the Treasury over £2 billion per year by taking invalidity benefit away from many thousands of the chronically sick and disabled and reducing the benefit of the rest, that is, those who are so sick and disabled that they continue to receive the benefit. It is estimated that 220,000 people will lose their benefit over the next two years. It is also estimated that about a quarter of those required to take the test—a further 70,000 a year—who would in the past have been eligible for benefit, will no longer receive it. When one looks back at the shambles of the Child Support Act and the introduction of the disability living allowance, this Act bids fair to become a third member of that sorry troika.

The Minister said that these were minor changes and that under the Act he was required to report them to the House. I believe that each time a minor change is reported it will lead to further questions. I have three questions that I wish to put to the Minister. Perhaps he will reply now or, if he wishes, in writing later. New Regulation 17A in 3(3) appears to offer the choice to disabled people whether to claim unemployment benefit or incapacity benefit. Can the Minister tell us what information and guidance will be given to claimants about which way to sign on? When it is wise for them to sign on, will they be eligible for contributory unemployment benefit? Affecting the whole of this matter will be the implications posed by the jobseeker's allowance.

The second question concerns appeals. It would be helpful if the Minister could give the House some guidance about the role of the medical assessor. When we debated the Bill in this House the Minister said that the assessor would give advice openly, but would leave the room while the tribunal deliberated. Will the claimant or his representative be able to cross-question the medical assessor on the advice that he or she has given to the tribunal?

I also understand that some confusion remains about whether someone who claims to be exempt from the all-work test, but has been refused exemption by the benefits agency and the medical service, has a right of appeal against that decision. If so, to whom? If not, what right of redress does that person have?

The third question concerns the interlocking of these regulations with other benefits, such as housing benefit and child benefit. I believe that the Minister in another place confirmed that someone could have his disability premium on these benefits backdated as long as there was acceptable evidence. Can the Minister say what acceptable evidence is? For example, will it be certification by the GP, or will some other form of evidence be regarded as acceptable?

With those three questions, without welcoming the regulations we accept the need to have them.

Earl Russell

My Lords, I do not think there is any need to go into past history at the moment. We have here a use of what the Minister described as the unusual procedures for the scrutiny of regulations under the Social Security (Incapacity for Work) Act. I welcomed those procedures at the time, and I continue to welcome them. But because we need to have scrutiny, it does not mean that we need to have a fuss every time. Like the noble Lord, Lord Carter, I have no intention of making a fuss about anything in these regulations. I agree with the Minister that many of them are beneficial and all of them are small. I am not making complaints about them.

In that context, I should like to draw the attention of the House to the evidence of the noble Lord, Lord Skelmersdale, in the First Report of the Delegated Powers Scrutiny Committee. It is printed as an appendix. The noble Lord argued that there are many cases, of which I would argue this is one, where the House has need of the affirmative procedure because things might be done under regulations which might need really close attention. But the noble Lord argued—and I agree with him—that it does not follow that we need to use all this scrutiny on every occasion when those powers are used. What the noble Lord suggested is that even where the affirmative procedure is used, it ought to be possible, by agreement between the usual channels and if no noble Lord objects, for the House to choose not actually to have the regulations before it. This is a case —I think the noble Lord, Lord Carter, may agree—where if we had had that power, we might have chosen to use it. But, nevertheless, I am extremely grateful to the Minister for coming to the House and helping to explain the regulations which, as with most regulations, are not always of the easiest to understand.

I welcome very warmly the concession and the change in the definition of HIV and the exemption from the test. I am glad to know that the Terrence Higgins Trust has seen this and agreed with it. That is thoroughly welcome. But it gives me occasion to say that there is a fairly strong case for giving schizophrenics exemption from that medical test. Since we are having continuing monitoring and continuing adaptation, I hope that that is a point to which the Minister may pay some attention.

I also welcome the concession allowing those who are technically incapable of working to register for unemployment benefit and to work. There are many people who might be found to be incapable of work who nevertheless, as we all know, do work and to great effect. But I should like to second the request of the noble Lord, Lord Carter, for clarification of the circumstances in which that might happen: whether there are any qualifying conditions or snags, or any conditions about the rate of incapacity benefit being received beforehand, or whether it is just simply a blanket use of a local option—that the claimant can choose what he likes best.

I mention, because I think it may save us a little time on the Jobseekers Bill, one other point which has come before us before. That is the possibility that people who are found fit to work under the Social Security (Incapacity for Work) Bill may go along to their employment office and try to register and be sent away being told that they are not fit to work or that they will not be accepted as fit to work pending their appeal. We had an assurance on that point at Second Reading from the noble Viscount, Lord Astor, whose helpfulness throughout was very great. We are still continuing, no doubt as a result of thoughtlessness at lower levels, to get cases coming through and being reported where that is not working. I should be grateful if the Minister would think a little further, before we come onto this point during proceedings on the Jobseekers Bill, about some way of trying to make sure that we do not have to make this point again. We are all agreed, after all, so we ought to be able to make the will of Parliament prevail.

Lord Mackay of Ardbrecknish

My Lords, I am grateful to the noble Lord, Lord Carter, and to the noble Earl, Lord Russell, for their appreciation of my explanation of the regulations. They are not nearly as complex or, indeed, I suppose, as important or far reaching as the regulations which we discussed on 9th February. But they are of importance and some of them are of considerable importance to certain groups. I am particularly grateful to the noble Earl, Lord Russell, for his mention of the point that we have taken up which was made to us by the Terrence Higgins Trust.

The noble Earl asked me about schizophrenia. I shall probably plead to taking that away and writing to him about it. I suspect that it will rather depend on the seriousness of the condition. But I shall certainly write and give him an explanation of how we see schizophrenics being treated.

On the question of the jobseeker's allowance and this benefit, someone who having had the medical test is found fit to work and not eligible for IB will not find himself refused access to the jobseeker's allowance because the jobseeker's allowance people think that he is unfit for work. He will not fall between two stools. I have little doubt that we shall return to this point on Monday, but I hope that that assurance will help the noble Earl.

The noble Lord, Lord Carter, confused me a little because he said that he was going to ask me three questions but I think that he asked me four. Never mind, I intend to answer four, which perhaps means that it is bonus day for him. Both noble Lords asked me about Regulation 2(6), which allows disabled people to register as unemployed if they prefer. Some disabled people who may well want to register for work might be unable to do so because some people—for example, those registered as blind—will automatically be treated as incapable for work under the new system. The provision in Regulation 2(6) will allow them access to unemployment benefit, and from next year the jobseeker's allowance, and, of course, access to the Employment Service in their search for work. The provision will assist anyone who can show some connection with work or training while excluding only those people who quite plainly cannot work. It is to help someone who, although disabled, may still actually want and feel able to work to be able to say, "I don't want to take IB. I would prefer in the future to go on to JSA and to take advantage of the Employment Service". The new rule will allow people a choice. Those who decide to take advantage of it will be able, if they feel that they want to do so, to stop signing on and reclaim incapacity benefit at any time.

I was asked about the role of the medical assessor in the appeal. The medical assessor will be present throughout the hearing to give advice to the social security appeal tribunal on the diagnosis, nature and effect of the medical condition. He will provide advice on the medical evidence before the tribunal and the possible application of the non-functional criteria. He can, through the chairman of the SSAT, put questions to and respond to questions from the appellant. That is what the noble Lord asked. Under the all-work test, neither the claimant's GP nor the BAMS doctor will give an opinion on capacity for work. The assessor will also not give an opinion on capacity for work. The medical assessor will leave the room with the other parties to the appeal while the SSAT deliberates on its decision.

I was also asked whether there were any provisions that will enable people to backdate their entitlement to disability premium when it is payable only on grounds of incapacity, which used to be possible by way of a backdated medical certificate. A doctor will still be able to issue a backdated statement—form Med. 5. With this medical evidence, the all-work test may be treated as satisfied until it is applied. If the claimant is found incapable of work and is entitled to a disability premium, the premium will be backdated as under the current provisions.

It was also suggested that there is virtually no right of appeal regarding the exempt groups—for example, for the claimant to produce new evidence at the appeal. A claimant cannot appeal against a Benefits Agency medical service doctor's decision not to provide a certificate of exemption from the all-work test if that is the only question at issue. But he can appeal against a subsequent decision by an adjudication officer that he is capable of work. He can then argue that he should have been treated as incapable under one of the exempt categories. In cases of doubt the appeal tribunal can refer the case back to BAMS for further consideration of the exempt question. They can then reconsider the question in the light of any new medical evidence which the claimant chooses to bring to the appeal hearing. I hope that I have answered the questions asked by noble Lords. I commend the regulations to the House.

On Question, Motion agreed to.