HL Deb 19 March 1997 vol 579 cc1015-21

9 p.m.

Lord Mackay of Ardbrecknish rose to move, That the draft regulations laid before the House on 24th February be approved [14th Report from the Joint Committee].

The noble Lord said: The main purpose of the proposed changes is to simplify existing medical test arrangements for applicants for severe disablement allowance and incapacity benefit. In the case of severe disablement allowance they also target resources more closely on people who are most severely disabled, for whom the benefit has, of course, always primarily been intended.

To be entitled to severe disablement allowance, claimants must pass the all work test of incapacity and, where incapacity began after the age of 20, they must also pass an 80 per cent. disablement test. To simplify arrangements, we propose that those who satisfy the 80 per cent. disablement test would be automatically deemed to satisfy the all work test. We also propose to deem those assessed as at least 80 per cent. disabled for the purposes of industrial injuries and war disablement pension as satisfying the all work test.

We have looked closely at the passporting criteria, under which people can be automatically treated as satisfying the 80 per cent. disablement test. These provisions were introduced as an administrative easement based on the principle that people should not require a medical examination if it is clear that they would be found 80 per cent. disabled.

The latest medical advice, which is supported by operational experience, is that some of the passporting criteria can no longer be regarded as adequate measures of 80 per cent. disablement. We propose therefore to limit the passporting criteria to those which are. It is only right that where the evidence is not so clear-cut, people should be expected to undergo the same scrutiny as the majority of severe disablement allowance applicants. Those people who will no longer be automatically passported can still undergo the test and can still be accepted for severe disablement allowance if they pass that test.

I believe that these regulations introduce some important improvements. I commend them to the House.

Moved, That the draft regulations laid before the House on 24th February be approved [14th Report from the Joint Committee].—(Lord Mackay of Ardbrecknish.)

Baroness Gould of Potternewton

My Lords, I am grateful to the Minister for moving these regulations. We welcome any moves to simplify the complex medical arrangements for benefits, especially where those medicals overlap, which, I understand, is the principal aim of the regulations. We also welcome the continuation of higher rate DLA care component as a passport to the benefit.

However, we should like to make a few comments about some aspects of the regulations. We would ask that the middle rate DLA care be kept under review, especially as classes of people in receipt of middle rate are often on it because drugs or other treatment may sedate them, preventing them from qualifying for the night condition. We would also suggest that there may be a need for a review in future for some categories of disabled people. We are also not convinced of the need to remove the mobility higher rate. It is an extremely difficult benefit to claim. Two thirds of all claims are determined after some form of medical report and more than 25 per cent. after a medical examination. The toughness of the benefit application should be self-evident and should qualify as a pass for the all work test.

Evidence from the RNIB highlights its concern about proposals within these regulations on ending automatic passporting to be regarded as 80 per cent. of disabled and above for certain groups for severe disablement allowance. In particular, the RNIB is completely opposed to ending the automatic passporting of registered partially sighted people. One suggestion is that the reason for it is that it relates to the uncertainty that people who could be registered as partially sighted would be found to be 80 per cent. disabled. However, we ask why the Government have decided to end automatic passporting for certain groups.

We understand that the DSS bases the changes on the assumption that 50 per cent. of those currently passported through the medical test would fail it if medically examined. Again, we ask the basis for that assumption. We know from the estimates that were made on incapacity benefit savings, for instance, that that figure is probably overstated.

Regulation 4 deals with transitional protection for those undertaking therapeutic work. Can the Minister give us an assurance and endorsement that claimants of severe disablement allowance who undertake work deemed to be therapeutic will remain in receipt of the benefit? I also add that to stop the partially sighted and others being automatically passported to that benefit for a saving of £5 million in two years' time seems to be unnecessary and not worth the effort.

Nevertheless, having said that, I repeat that we welcome any moves that are made to simplify the complex medical arrangements for benefits.

Earl Russell

My Lords, the Minister has had a small timing problem with these regulations. They are to come into force on April Fool's Day, which is in the very near future. So they come within the squeeze which has entered into the business of the past few days.

When we reach the end of a Parliament, there is a problem of arranging the business of regulation, just as there is of arranging the business of legislation. Perhaps 1 may ask first why it was necessary to proceed with these regulations before the end of this Parliament; and secondly, whether any consultation took place within the usual channels plus those tributaries to them which in this House are necessary, in order to reach an agreement on which regulatory material should be brought forward and which should not? That is something which might well be considered at the end of a future Parliament.

With these regulations, I accept that the Department of Social Security had a problem. It does not necessarily follow that the department has the solution. We have two separate tests of unfitness to work: the test for severe disablement allowance and the all-work test for incapacity benefit. There was a partial system of passporting which exempted some people from those tests. Therefore we have a system of double testing which is necessarily confusing and expensive.

I understand fully why the department wished to take action. As I understand it, it discovered that all people qualifying for severe disablement allowance were found to be incapable of work under the all-work test, but not all people found incapable of work under the all-work test were found to qualify for the severe disablement allowance. That is the problem. I accept that something had to be done about it; the question is whether the department has got it right.

The department has confined the passporting (which takes people through the all-work test and confers an exception) to those thought to reach the standard of the severe disablement allowance. It is a solution which has considerable virtue in logic and is probably not quite so easy in practice. We are facing the same problem as we were facing in the Crime (Sentences) Bill when dealing with the sentence which the judge would have passed under a previous system. Indeed, when one looks at Appendix 2 of the regulations it looks remarkably like a Fahrenheit-centigrade conversion table—we all know the problems that that causes for most of us.

It is estimated that the effect of the regulation will be to bring in 3,500 extra medical examinations per annum. The question is whether or not the extra work and the extra anxiety involved are to good purpose. It is thought—this is necessarily conjectural and that is not disputed—that there may be a saving of £5 million. One is reminded of Sir Alan Herbert's epitaph on an archbishop: My predecessors, fighting sin, Did their best to bring men in. But I was best without a doubt At keeping the unworthy out.- So when I died, the church was one, and that was me". That sometimes seems to be the motto of the Department of Social Security. It is trying, by having fewer passports to severe disablement allowance, to funnel people through into the all-work test, and it has run into one or two problems as a result. The Social Security Advisory Committee, in its usual excellent report, drew attention to some of them. I should perhaps pay tribute to the work of Sir Thomas Boyd-Carpenter as chairman of that committee. He fully maintained the high standards of Sir Peter Barclay whom he succeeded.

It pointed out in paragraphs 42 and 43 that there is a problem because severe disablement allowance is a non-contributory benefit whereas incapacity benefit is a contributory allowance. That means of course that a much smaller proportion of women qualify for incapacity benefit than would have done for severe disablement allowance. The committee says—not at all to my surprise—

we draw the Department's attention to the view expressed to us that the proposal is contrary to equal treatment legislation in the European Union". I should like to know whether the Minister has legal advice on that point; whether he has a law officer's opinion on it. What is the department's main source of advice on European law? If it believes, as I presume it does, that that view is mistaken, on what grounds does it believe it? I hope it is right.

My next point concerns the question asked by the noble Baroness, Lady Gould of Potternewton, in regard to partially sighted people. There is also considerable doubt about the department's view on what actually constitutes meeting the standard of severe disablement allowance. The department took the view that medical advice is that it cannot be assumed from some of the current passporting criteria that a claimant is necessarily 80 per cent. disabled. The committee points out that the department presented no evidence in its note to the committee for that assertion. The department says it had medical advice. Can the Minister tell us what advice? From whom did it come? In what words was it expressed? How wide a range did it meet?

One cannot altogether deal with the issue by looking simply at the number of people who fail the all-work test. I will not repeat my views on that; the Minister knows them perfectly well. But I will point out that the success rate of appeals against that test is 47 per cent. That is remarkably high. Subject to some allowance for the appeals being a pre-selected sample, it gets quite near the view that with a 50 per cent. success rate on appeal, the accuracy of the test would prove to be nearly completely random. That is just about the opinion I have always had of that test. I am interested to find so much confirmation of it.

On the point about people who are partially sighted, it must be understood that partial sightedness is registered—these are the direct words in paragraph 33 of the committee's report— only after an examination by an ophthalmic consultant who certifies that the person is 'substantially and permanently handicapped as a result of defective vision caused by congenital defect, illness or injury—. One would have thought that that finding would have been treated with some respect. Subjecting these people to all the anxiety involved in extra and perhaps unnecessary medical examinations is something that requires some justification. The Royal National Institute for the Blind described this as "a senseless change".

Those are strong words. I hope the Minister can give the House some reason for believing that those words are not justified.

9.15 p.m.

Lord Mackay of Ardbrecknish

My Lords, I thank the noble Baroness and the noble Earl for their welcome of the first part of the regulations which will prevent the double testing between SDA and the all-work test. Those are sensible provisions and will mean that around 8,500 people will not require to go through the double test.

The noble Earl asked about consultation. In some ways he answered his own question because he read from the report of the Social Security Advisory Committee. We have, as always, consulted the committee. I was asked whether the debate on the regulations this evening was arranged through the usual channels. I suspect that I would not be standing here if it had not been. Whether it has been done through the tributaries is, I suspect, part of the trickle up or the trickle down process, but I do not know much about that.

The noble Baroness and the noble Earl were less happy about the second part of the regulations. We have arrived at these conclusions because the latest medical advice which is supported by operational experience is that some of the current passporting criteria can no longer be regarded as adequate measures of the 80 per cent. disablement. We thought it was right and fair to limit the passporting criteria to what they are really intended to do; namely, to those tests which give a clear indication of the 80 per cent. disablement and thereby reflect the original policy.

Earl Russell

My Lords, I am most grateful to the Minister for giving way. He tells us what we know. But can he tell us what was the source of that medical advice?

Lord Mackay of Ardbrecknish

My Lords, as I understand it, it was the doctors of the Benefits Agency Medical Service who worked on these issues plus a little survey we carried out. As the numbers were small enough, we were able to track back clerically and look at the small sample that was taken. It was a small sample but we are talking about small numbers of people. We believe that the second part will mean that around 3,500 people will have to take the additional test. While the whole package will still reduce the number of people who have to take two tests, there is a netting off of the additional test on the second half of the regulations against the gains in the first half.

I think I ought to say—and I think I said it in my opening remarks—that those people who will no longer automatically be passported through the 80 per cent. test are not being denied severe disablement allowance. They are simply being required to satisfy the test in the same way as other claimants. Such people will require a medical examination only if the adjudicating medical authority is not satisfied on the paper evidence that they are 80 per cent. disabled.

The noble Baroness and the noble Earl asked me about the assumptions. Those are the assumptions we have made. We believe, based on the assumptions we have made, that around £5 million of savings will be achieved by 1999–2000. We shall monitor the effect of these changes and we shall certainly review the issue in the light of the savings that are made and the data we collect on the tests themselves.

The noble Baroness asked me a personal question about therapeutic work. I can assure her that SDA claimants who are deemed to be undertaking therapeutic work will remain in receipt of the benefit.

Both the noble Earl and the noble Baroness asked me about partially sighted people. We are removing this passport because we cannot be sure that those people who could be registered as partially sighted would necessarily be found to be 80 per cent. disabled. The current statutory definition of blindness is: A person should be so blind as to be unable to perform any work for which eyesight is essential". Partial sightedness is not defined in legislation but must, by inference, be something less disabling than the definition I have read out. The criteria for partial sightedness is set out in guidance to certifying ophthalmic medical practitioners. To be registered as partially sighted the requirement is either vision of 6–60ths or worse, in both eyes—that approximates to 80 per cent. disablement—or visual acuity between 6–0ths and normal, but with restricted visual fields, which often does not equate with 80 per cent. disablement, as may be found, for example, in glaucoma or the eye complications of diabetes mellitus. These criteria are widely drawn and the ophthalmic consultants use considerable clinical discretion when applying them. It does not therefore follow that such people will inevitably satisfy the 80 per cent. disablement test.

Neither does it follow that such people would need to be examined if the adjudicating medical authority is satisfied on the paper evidence that they would indeed meet the 80 per cent. disablement test. So the removal of the passport means that each case can be medically assessed by the adjudicating medical authority on the specific medical circumstances which pertain to that individual. I underline the point that if the adjudicating officer is satisfied, then he does not need to go to the next step which is to have a medical test.

We are making these changes in order to ensure, as I have said, that only those with disability clearly equating to 80 per cent. are passported through the severe disablement allowance 80 per cent. disablement test. It is important to remember, as I say, not just for the partially sighted, but for all those who will no longer have automatic passports, that they are not being denied this allowance, but they are going to be treated in the same way as other applicants who are not passported. As I say, they may well not even need a medical test if the evidence satisfies the adjudicating medical authority.

I was asked by the noble Baroness, Lady Gould, about the mobility component of the disability living allowance. I say to her that the disability living allowance mobility component, which is a successor to the mobility allowance, is one where the recipients had to pass a medical examination which was considered to equate to 80 per cent. disablement. However, since the introduction of DLA some higher rate mobility component beneficiaries will have been awarded benefit following self-assessment rather than a medical assessment. While we may have considered that recipients of the old mobility allowance could be considered 80 per cent. disabled and carried this through its successor, the higher rate mobility component of the disability living allowance can no longer be sustained with self-assessment coming in.

The noble Earl asked me about the changes and whether they would adversely affect women disproportionately and hence we may be in breach of our EU obligations. I say to him that we have no reason to believe that there is a greater proportion of women in the group who will no longer be automatically passported onto the severe disablement allowance. It is the departmental solicitors we look to to give us advice on whether legislation is discriminatory. In this case their advice is that it is not.

I believe that I have answered this before, but the noble Earl asked me. I mentioned the BAMS people. The department's chief medical adviser and his medical experts were also involved in that medical advice. I hope that I have answered all the various points put to me by the noble Earl and the noble Baroness. I commend this regulation to the House.

On Question, Motion agreed to.