§ 11 am
§ Mr. Mark Lazarowicz (Edinburgh, North and Leith)
I shall take the opportunity of today's debate to raise an issue that was brought to my attention by one of my constituents, although it prompts wider concerns that are worth bringing to the attention of the Chamber and my hon. Friend the Minister.
The outline of my constituent's case is straightforward. She suffers from a psychotic illness and depression, and she receives disability living allowance—DLA—at the higher rate for the care component and the lower rate for the mobility component. Due to her illness, she finds it difficult to leave her house on her own, and she is cared for at home by her husband.
Last year, my constituent was admitted to the Royal Edinburgh hospital for treatment lasting several months, which involved a course of medication combined with overnight stays in hospital. During that time, however, she spent most of the day—between 10 am and 10 pm—out of hospital and at home. She was technically an in-patient, so after four weeks she lost her entitlement to DLA despite the fact that for large parts of the day she was living normally at home, incurring the same costs of care that she would have incurred had she not been receiving hospital treatment.
Many people are concerned about the withdrawal of DLA after 28 days from disabled persons admitted to hospital, which has been criticised for causing undue hardship to the disabled and their carers during a difficult time. I have some sympathy with that point of view. However, I intend not to talk about that, but to focus on the issues raised by my constituent's experience—namely, the problem that arises when DLA is withdrawn from someone who is nominally a hospital in-patient, but who spends large parts of the day at home. It has not been raised recently in Parliament, so I welcome this opportunity and look forward to hearing the Minister's response.
Three specific issues arise from my constituent's case: the definition of an in-patient, how someone who normally receives DLA can have their cost of living met when the allowance is withdrawn during a stay in hospital and the purpose of the mobility component of DLA.
The definition of an in-patient is central. As my constituent was classified as an in-patient, her entitlement to DLA was lost. My research suggests that there is, at the very least, a lack of clarity about what constitutes in-patient status for the purposes of the benefit. Existing case law throws up contradictory answers: one case suggests that a person is to be treated as being maintained free of charge as an in-patient provided only that he or she is in the hospital 24 hours a day, but other cases suggest that absences during the day do not affect in-patient status, nor that of being maintained free of charge.
The same lack of clarity is to be found in the Department for Work and Pensions publication 25WH "Decision Makers Guide", which states that an in-patient can be someone who isa long-term patient and spends part of each day away from the hospital".However, the guide does not give any indication of how long that time away from hospital needs to be before the person is no longer regarded as a long-term patient. The criteria should be clearer for deciding whether a person who spends time away from a hospital during the day is to be regarded as an in-patient. I find it hard to understand why my constituent was considered to be an in-patient for DLA purposes.
My second point relates to how a person in the circumstances of my constituent is to meet their normal living costs. Even if my constituent were to be described as an in-patient for the purposes of the benefit, she was out of hospital for what would be described as the normal day—10 am to 10 pm. I wish to concentrate not on the general issue of withdrawing DLA from hospital patients after 28 days in hospital, but on the particular experience of my constituent. She was spending 12 hours a day out of hospital, but was not receiving DLA help to meet the costs of care and mobility. She and her husband do not live on a high income, and she relied on the income from DLA to meet the cost of her essential expenses. She said that the experience of losing DLA during her hospital stay was "difficult" and "very stressful", and that it had led to a significant reduction in her weekly budget. Although she received some care at home from the hospital in the form of visits from a community psychiatric nurse, she was not compensated for the loss of DLA. She was certainly not receiving constant care at home from the hospital.
I am sure the Minister agrees that it is important for people to be given the autonomy to spend time away from hospital during any course of treatment, if that is appropriate, but if daily expenses during that time are not supported by benefits or the health service, either disabled people may be less inclined to enter hospitals in the first place or patients may have to remain in hospital for more of the day than is necessary. Those outcomes would not be conducive to recovery and would lead 10 patients qualifying for further DLA payments, which would be a cost to the public purse.
My third point, which relates to the mobility component of DLA, is the most central to my constituent's case. Although there is certain logic, even in my constituent's case, to not paying the care component of DLA to someone who spends their time overnight in hospital, the logic to withdrawing the mobility element from my constituent is much weaker. For the vast majority of the day, that person was out of hospital, so presumably the mobility needs that originally justified the mobility component still applied. Part of the definition of eligibility for the mobility component is that it is designed to help people who have severe difficulty walking or who require assistance getting around out of doors. That need is not any the less because a person spends part of the day or night in hospital. For the rest of the time, that person must meet the costs of mobility.
If someone on the higher rate for the mobility component is admitted to hospital, entitlement to a car or wheelchair provided under the motability scheme is not withdrawn, but that protection does not help people 26WH on the lower rate—people such as my constituent who are not immobile, but who still need help when they venture out of their home. I hope that the Minister considers that point. A possible solution would be to pay those who spend a substantial period away from hospital a proportion of the DLA mobility component. Perhaps it could relate to the time that they spend in hospital in a day and the time that they spend at home.
Of course, I recognise that in any benefits system there are bound to be cases that do not fall neatly into the categories or definitions of eligibility. That is inevitable, and I accept that sometimes it is not possible to introduce a general principle that will ensure that the difficulties in a particular case do not recur, but cases such as that of my constituent must recur from time to time. Also, greater clarity about the rules and how they are applied, and greater fairness in their application, would ensure that people do not suffer the financial penalty that my constituent undoubtedly did.
The Minister has already considered the matters raised by the case, but I hope that she will consider the points that I have made today, both as they relate to my constituent and in terms of their general implications for people in similar circumstances.
§ The Parliamentary Under-Secretary of State for Work and Pensions (Maria Eagle)
First, I congratulate my hon. Friend the Member for Edinburgh, North and Leith (Mr. Lazarowicz). In such debates, he usually mentions a fascinating lacuna or difficulty that he has found in the benefit rules—not that it is difficult to do that, the rules being as they are. Today is no different, and his comments are of his usual standard.
The Government recognise that the need for financial security does not cease when people are in hospital and that they are likely to have ongoing domestic commitments. Many income maintenance benefits are downrated once the recipient has been a hospital in-patient for six weeks. When my right hon. Friend the Minister for Pensions took his post, he committed himself to changing the rules on hospital downrating of benefit, particularly as that relates to retirement pension, but also in respect of such benefits as income support, and incapacity and housing benefit. From October, such benefits will be downrated after 13 weeks, rather than six.
The average hospital stay lasts about six days, and the vast majority—more than 97 per cent.—last less than six weeks. Nevertheless, we estimate that the change made by my right hon. Friend the Minister for Pensions, which is to be introduced in October, will benefit a further 26,000 people at any one time. For some 18,000 of them, that change will be in respect of their retirement pension; for the rest, it will be in respect of other income maintenance benefits. Those who need longer hospital stays will have the extra seven weeks to plan their future financial arrangements.
I want to explain the rationale for hospital downrating, because when one discusses the subject with people, they do not necessarily immediately understand it. However, I do not say that that is right or wrong. The rationale basically comes down to the rule against overlapping provision, which is a founding principle of the welfare state and has been with us as 27WH long as the welfare state itself. That principle pops up in all sorts of places in the benefit system, and it basically means that the state will not pay two benefits for the same contingency. It will not pay benefit or income maintenance—such as income support, incapacity benefit or housing benefit—when the needs for which they are paid, namely maintenance, are met free of charge by the national health service for a hospital in-patient. That is why the issue arises, and why benefits are downrated at all after a period of hospital admission. That is the basic rule.
I come to disability living allowance and attendance allowance. As my hon. Friend said, since the changes to hospital downrating were announced, it has been asked why such changes have not been extended to DLA and AA. Those allowances involve different considerations. They are not paid for normal day-to-day living and they are not for income maintenance, although my hon. Friend said that that is what his constituent is using them for. They are paid as a contribution towards the extra costs faced by severely disabled people who need help with care or have walking difficulties. The rationale behind those "extra cost" benefits is different from that behind benefits such as retirement pension or income support. Of course, the state will still pay out money to people who receive such benefits, once they have been assessed.
The reason for paying a benefit is not necessarily apparent to those receiving it. There is no question of there being any restriction on what the benefits should be spent on. There is no requirement for someone receiving DLA care component to spend it on care, nor is there a requirement for someone receiving the lower-rate mobility component of DLA to spend it on their mobility needs, although they may choose to do so.
§ Mr. Lazarowicz
Perhaps I should be clearer: my constituent has made it clear that she fully understands the purposes of DLA. There is no question of DLA contributing towards normal living expenses. My constituent's normal household budget takes account of the fact that she normally spends DLA on costs that continued when she was in hospital for part of the time. I am not suggesting that the DLA was being used for normal living expenses.
§ Maria Eagle
It is always difficult to discuss particular circumstances. I do not want to discuss a particular case here, although I may discuss it with my hon. Friend away from the Floor of the House. If his constituent was receiving the highest-rate care and the lower-rate mobility components, that would, last year, have come to £71.15 a week. That is a significant amount, and I fully accept that its removal would have had an impact on her ability to budget for costs that she meets one way or another.
DLA comprises three care and two mobility components, whereas attendance allowance has two care components only. All in-patients' disability-related needs are met by the national health service. That is where the rule against overlapping provision comes in, and that is why DLA and AA are withdrawn after a shorter period—namely, once an adult has been in hospital for 28 days. For children under 16, the rule is 84 days.
28WH Those arrangements are based on the principle that double provision—in this case, NHS in-patient care and payment of DLA—for the same need should not be made from public funds. The difference between the arrangements for adults and for children is recognition of the therapeutic value of visits and treats for a disabled child who is adjusting to life in hospital.
Different arrangements also apply for people who are using their higher-rate DLA mobility component to secure a lease or hire-purchase agreement for a motability vehicle. My hon. Friend referred to that. In such a case, the higher-rate mobility component is still paid, so that the motability vehicle can be available when a severely disabled person is discharged from hospital. I hope that it is obvious why an exception is made in that special case. If it were not, a person would lose a car that should have been available to them for three years. The implication of the downrating in that instance would last long after the discharge from hospital and the restoration of benefit.
My hon. Friend has properly drawn attention to details of his constituent's case. I can say general things about that, but he will appreciate that I will not go into vast detail about particular cases. His constituent spent several months in hospital, but she was permitted to go home during the daytime. This is a slightly more difficult case, although the circumstances are not unique—other people are hospital in-patients who have been sectioned under the Mental Health Act 1983—and it is not representative of most hospital stays. Most people go into hospital and stay until they are discharged, but some hospital in-patients—my hon. Friend raises one such case—spend a lot of time out of hospital. This is, of course, a difficult case, but the withdrawal of the DLA payment in such a situation does not breach the underlying principle of not providing twice out of public funds for the same need.
The person concerned was a hospital in-patient and all her needs, including disability-related needs, could be met throughout the day. The in-patient place could not have been be used by another patient until she was formally discharged. My understanding, from Department of Health advice, is that hospitals are reimbursed within the calculation of their unit costs for all the costs involved in providing the patient with all the care they need, including periods out of hospital on leave of absence. That ought to include help with mobility.
My hon. Friend's constituent appears to have been out of the hospital for as long as she was in it, but the NHS should still have been responsible for all those costs. Perhaps we could discuss more precisely, outside the Chamber, what has gone on in this case. None the less, in such circumstances, it would not be right for us to make concurrent provision for a person's needs through the benefits system, because that would inevitably breach the double provision principle.
My hon. Friend was especially concerned that the payment of the mobility component of his constituent's DLA was withdrawn. He asked what was the purpose of the mobility component; I understand that his constituent was receiving the lower-rate mobility component. As I suggested in my brief exposition of the reasoning behind DLA and the extra cost benefit, the purpose of the benefit is to assist in providing a contribution to the extra costs to severely disabled 29WH people of personal care and being able to get around. However, after a person has gone through the gateways, as required, and has been assessed as being in need of one of the components, there is no requirement on how that money should be spent, so there is no question of the benefits system policing how such money is spent or threatening to take it away if it is not spent on mobility-related costs.
I cannot give my hon. Friend a precise answer on what is the purpose of the mobility component, although I can tell him what are the eligibility criteria. It is up to the individual disabled person how to spend the money and I understand that disability groups value that flexibility. There is no doubt that the range of needs and requirements of disabled people vary enormously from person to person, but while the benefit has gateways, the severely disabled person involved can decide, once the money is there, to use it in the most suitable way to meet extra costs.
Most hospital in-patients have little opportunity for individual mobility—they are in hospital and they stay there. If they need to be moved, the hospital will arrange transport. For most people, a stay in hospital is a short-term event and people who need a degree of care, but who might benefit from independent mobility, are likely to live in their own home, with friends or relatives, or in a care home. The mobility component of DLA can he paid to them in any of those situations for as long as they meet the conditions of entitlement to the component.
My hon. Friend referred to the definition of an in-patient, highlighting what he regards as a lack of clarity and quoting contradictory case law. Any lawyer would tell hon. Members—there are a number of lawyers present—that there are always contradictions in case law. One can always find cases that point in opposite directions. It is important to recognise, however, that the hospital is under an obligation, which is set out in the 1983 Act, to meet the needs and requirements of my hon. Friend's constituent. In this case, that is what being an in-patient means.
"Decision Makers Guide", to which my hon. Friend referred, suggests that one can be a hospital in-patient and spend time away from hospital. There is, however, no reference in that document to a length of time. The key point is, who is responsible for the maintenance elements and for looking after the costs associated with the person concerned? We expect our decision makers to apply a common-sense approach, subject to any case law that is currently out there and authoritative.
It would be neither possible nor desirable for "Decision Makers Guide" to set exactly how long an in-patient had to be out of hospital before they were no 30WH longer considered as such. It is not the length of time that matters. I understand my hon. Friend's concern that this lady was out of hospital almost as much as she was in, but "Decision Makers Guide" is there to guide people and our decision makers have to deal with myriad situations and circumstances, not all of which could be captured in a guide or a booklet. There is no right or wrong answer on DLA—it covers such a wide range of circumstances. It does not surprise me that my hon. Friend could find no definitive answer in "Decision Makers Guide", because it is a guide to common-sense decision making.
My hon. Friend also asked how this lady could meet the cost of living. The Department of Health has suggested to me that it reimburses hospitals to meet such costs, and I think that I have already dealt with his question on the purpose of the mobility component. Disability living allowance, AA and the extra cost benefit are unlike any other part of the benefits system: they are neither simple nor straightforward, and there is no black and white answer on eligibility or the circumstances in which somebody might be eligible. One cannot say that somebody with a condition or illness is automatically eligible—in fact, the effect of a disability or illness affects the care and mobility needs of the individual. That flexibility is an essential part of the benefit, which is valued by its recipients, but it is also the administrative bane of my life, and of many others who have to deal with DLA and AA decision making. There are downsides to the upside of flexibility, but we must live with that while the benefit remains as it is.
The debate has provided a useful opportunity to explore how benefits are treated when people are in hospital—my hon. Friend usually secures useful debates. I understand his concern that the changes we are making for benefits for everyday living are not being made to attendance allowance and DLA. I do not expect everybody to agree with the rationale, but I hope that they understand it. That does not mean that benefits recipients will not benefit from the changes that we are introducing in October—many of them also receive benefits for income maintenance.
At the same time, we shall introduce the pension credit, which will provide enhanced support for lower-income pensioners and reward those people with savings. However, I suspect that my hon. Friend's constituent might not be a pensioner—he did not say that she was. Perhaps we can continue our discussion on the case away from the Chamber.
§ Sitting suspended until Two o'clock.