§ Mr. Bill Rammell (Harlow)I welcome the opportunity to discuss the appalling experience of my constituent Mrs. Susan Cole, and what her dreadful ordeal has taught me about the need to reform the backdating of disability living allowance. Let me begin by saying that this is not part of a general whinge about the Government not doing enough for disabled people. I do not believe that to be the case; indeed, throughout the current Parliament I have fully supported the Government's strategy of providing work for those who can work, and security for those who cannot.
The new deal for disabled people is beginning to work in my constituency. The disabled persons tax credit, providing a guaranteed minimum income of £155 a week for a single disabled person who moves from benefit to full-time work on the national minimum wage, is also beginning to help disabled people in my constituency to return to work. The Government rightly made a tough decision in the Welfare Reform and Pensions Act 1999 to means-test incapacity benefit. I think that that measure was justified, in that its aim was to generate significant increases in the incomes of the disabled people most in need. For example, there has been an increase of up to £26 per week for severely disabled young people who become disabled early in life.
We are reforming pensions, in order to provide contributions for those who care for disabled people and therefore cannot make contributions throughout their working lives. I have long been concerned about that issue, and I consider the reform to be a significant step. I am also pleased that, during the current Parliament, spending on sickness and disability benefits will increase by more than £2 billion as the Government meet rising demands and do more for those in the greatest need.
I consider that to be a record of real achievement. I am not saying that the Government has got it wrong on disability benefit in general terms; far from it. I think we are beginning to bring hope, support and opportunity where previously there was none. However, I think that, on the specific issue of backdating of disability living allowance, we are simply continuing with the rules that we inherited from the last Conservative Government, and I strongly believe that we should think again.
I should like to deal with one aspect of Susan Cole's experience that highlights the need for change. Prior to 12 July 1996, Mrs. Cole had worked all her adult life, although she had for 15 years suffered from colitis. Anyone who has suffered from colitis or knows anyone who has suffered from it knows that it is a very debilitating condition. Because of the severity of her condition, Mrs. Cole sought a private medical consultation at the private Rivers hospital, in Sawbridgeworth, near my constituency of Harlow.
During the examination, without warning, the consultant performed a bowel biopsy, which caused Mrs. Cole extreme pain. Although the consultant reassured her that that was routine, only two hours after the consultation, Mrs. Cole found herself suffering from severe rectal bleeding. Later that day, she was admitted to the national health service Princess Alexandra hospital, in my constituency of Harlow, where she was 244WH put on a drip and detained in hospital for 10 days. The length of that stay is a clear indication of the severity of her condition. The significant point of the story is that, towards the end of her stay in hospital, she started suffering from the symptoms of post-traumatic stress disorder—severe depression, fear, flashbacks and extreme anxiety and insecurity.
Mrs. Cole was discharged from hospital, and, very shortly afterwards, because of her symptoms and experience, was advised to claim incapacity benefit. However, despite the severity of her condition, no one at the Benefits Agency suggested that she should claim disability living allowance. One month after her stay in hospital, her general practitioner suggested that she might be suffering from post-traumatic stress disorder. That suspicion was finally confirmed in November 1997. Both before and after that date, however, over a period of three or more years, Mrs. Cole has suffered from enormous stress and anxiety and from other major problems. She has had to be admitted to hospital, occasionally for up to seven days, suffering from extreme anxiety and stress.
I think that it is incontestable that, in the whole of that period, and certainly since November 1997, Mrs. Cole should have been eligible for disability living allowance. Throughout that period, she was regularly in contact with the Benefits Agency office and regularly spoke to the agency's staff, who were well aware of her condition. When she had her first six-month renewal for incapacity benefit, because she was—to put it bluntly—in such a state, she sent some press cuttings on her ordeal at the private hospital. However, still no one at the Benefits Agency suggested that she might claim disability living allowance.
Finally, in August 1999, Mrs. Cole rang the Benefits Agency office on a different issue, to inquire about her sister's eligibility for incapacity benefit—her sister is suffering from cancer—and used her own claim as a reference point. The person at the Benefits Agency office whom she spoke to finally asked her why she was not claiming disability living allowance. The net result was that she did submit a claim successfully, and she has been successfully claiming ever since.
The crucial point is that that occurred three years after she had started claiming incapacity benefit. She had at least five renewals for incapacity benefit, and numerous discussions with Benefits Agency staff. Although it was at the very least arguable that she had been entitled to claim disability living allowance, not once in that three-year period, until August 1999, did anyone suggest that she should be claiming DLA.
It is also interesting that, in January 2000, when I took up the issue with the Benefits Agency—I have evidence of this in writing—the agency was able to check its records to assure me that there was no evidence that Mrs. Cole had made any inquiries about any other benefits to which she may have been entitled. Therefore, the agency's systems were clearly very rigorous and detailed. The agency could check to ensure that Mrs. Cole had not inquired about claiming, but it could not tell me why no one at the agency had told her about her possible eligibility for DLA, although she was clearly entitled to it.
245WH One might ask why, for example, anyone who is in receipt of incapacity benefit does not automatically receive a leaflet on disability living allowance, informing him or her of the possibility and chance of being able to uptake that benefit.
Nevertheless, from August 1999, Mrs. Cole started claiming DLA—despite all the evidence showing that she had been eligible to receive it significantly before that date. However, according to a very tight set of criteria, backdating of DLA is allowed to a maximum of six weeks. Mrs. Cole could therefore not receive benefit backdated beyond that date. Those are the rules that we inherited from the Conservative Government.
I have pursued the issue in detailed correspondence with the Minister, and his responses have been very helpful and detailed in explaining the current system. However, it is intriguing that some of the arguments used by the Department are the same as those used by the previous Government. The first argument is that the onus is on the claimant to claim at the appropriate time. That argument was the central thrust of some of the changes introduced by the previous Government. My first response to that point is to ask why. If it can be genuinely proven that one was eligible from a prior date, but that one was simply not aware of eligibility—as opposed to choosing not to claim—there is a strong argument in principle for backdating.
The second argument against backdating in deserving cases is that it would be difficult to operate fairly. However, that is exactly what we do—on a much wider basis, and with a much longer period of backdating—in, for example, council tax benefit and housing benefit. As the Minister will know better than I, backdating may be allowed if "good cause" can be demonstrated. "Good cause" may be based on facts that, having regard to all the circumstances, including the claimant's state of health, would probably have caused a reasonable person not to claim at the time that they should have claimed. In such circumstances, based on that "good cause", one backdating—for up to 12 months—is allowed.
I contend that Mrs. Cole's state of health, with post-traumatic stress disorder, was the very specific reason why she was not aware of her eligibility to claim DLA. For council tax benefit and housing benefit, that one reason would have been sufficient justification to backdate for up to 12 months. If that is sufficiently good cause for backdating those benefits, why is it not good enough for backdating DLA?
The final argument made against backdating DLA is, according to correspondence, a straightforward rule against doing so, on the basis that
this has been regarded as the most equitable in all the circumstances."Equitable" means reasonable and fair. I do not think that it is reasonable and fair to deny all retrospective claims regardless of circumstances and merit—both legitimate and illegitimate—rather than conducting the necessary debate on how we should widen both the objective criteria for, and the length of, backdating. That is all that I am asking for. I am not arguing for a free for all in which any claim can be backdated if a reasonable case is made, requiring the Benefits Agency then to make a discretionary judgment. Such a system would be arbitrary, difficult to administer and, in many 246WH senses, unfair. I acknowledge that it would also be an open-ended commitment on public expenditure—which I know that not only the Treasury, but any reasonable person charged with the responsibility of managing public finances, would not wear.I am arguing, however, that further legitimate objective criteria could be established to justify backdating. We can debate what those criteria might be. I would certainly argue that they should include written documentary evidence of a condition at a particular time, and a sworn statement from a doctor that a condition existed at a particular time, allied with the type of "good cause" reason why a claim was not made at that time. Those criteria apply in housing benefit and council tax benefit claims.
I would also certainly argue that, as with those benefits, backdating should be available for up to 12 months. I am not arguing for indefinite backdating, which clearly would be an open door to massive claims. However, a 12-month period would be reasonable.
There is a basic unfairness. I recognise that eventually it all comes down to money. I long ago became a financial realist. I know that there is only a certain sum of money allocated to the Department of Social Security and the benefits budget and if there is a huge increase in backdating we will have to limit the overall increase in benefits, spreading the money more thinly.
However, we need a specific change on the backdating of DLA compared with other benefits, because the take-up of DLA is so low. A low take-up means several things, particularly that people are not aware of their eligibility. Mrs. Cole's experience has certainly demonstrated that. On top of that lack of awareness, which might reasonably prevent people from claiming in time, DLA has the tightest backdating rules of almost any benefit. To underline that point, let us consider the evidence on take-up among the eligible population for various benefits: for income support, the figure is 70 to 80 per cent.; for housing benefit it is around 90 per cent; for jobseeker's allowance it is 70 to 80 per cent; for family credit it is 70 to 80 per cent. and we hope that the working families tax credit that replaces it will have an even higher take-up. However, only 30 to 50 per cent. of the eligible population take up the care component of disability living allowance and the figure for the mobility component is 50 to 70 per cent. Those figures come from a recent answer from the Minister in the Lords.
A lack of awareness restricts take-up. We are penalising people by not allowing backdating if they do not find out that they are eligible. In a sense, it is a double whammy and it is a serious problem. The case of my constituent has highlighted the unfairness of the current backdating rules. Susan Cole was eligible, but she did not know it. She was traumatised because of her condition and the system did not help her as it should have done. Her case demonstrates the need for change. I hope that my hon. Friend the Minister will consider my arguments and will review the backdating of DLA, focusing specifically on how we can widen the eligibility and increase the period of backdating.
§ The Parliamentary Under-Secretary of State for Social Security (Mr. Hugh Bayley)I congratulate my hon. Friend the Member for Harlow (Mr. Rammell) on 247WH securing this debate on an important issue and making such an exemplary case on behalf of his constituent and a more general case on the need to look again at the backdating of disability living allowance and its sister benefit, attendance allowance.
I pay tribute to the enormous support that my hon. Friend gave to the range of improvements to disability benefits that the Government has been able to introduce, including the introduction of the disabled persons tax credit, the extension of the DLA higher rate mobility component to younger children aged three and four and the extension of incapacity benefit to people who are born disabled or are disabled so severely early in life that they are never able to work. Those important reforms are available to many people.
I also extend my sympathies to Mrs. Cole, who clearly suffered a terrible experience in 1996, when she went for a routine procedure at a private hospital. She claimed, and was awarded, incapacity benefit in 1996 and later, in 1999, she claimed disability living allowance and was awarded the lower rate mobility component. That award was made in respect of mobility needs arising from her experience in the hospital three years before. My hon. Friend argued powerfully that the symptoms arose from post-traumatic stress disorder, which she suffered as a result of the procedure.
Disability living allowance is not awarded because of particular symptoms or the existence of a particular disability or disease. It is awarded in respect of a disabled person's care needs or their mobility needs—the need for assistance with getting out and about. It is awarded because of a consequence of a disability rather than because of the disability itself.
§ Mr. RammellI wholly accept that point. I was trying to show that the post-traumatic stress disorder led to Mrs. Cole being unable to look for benefits or be aware of them. That is what prevented her from claiming when she should have done.
§ Mr. BayleyI understand my hon. Friend's point. I shall refer to it later. As he has rightly pointed out, there are good cause procedures for some benefits. If someone can show good cause for not applying for the benefit earlier, they may get up to three months' backdating. A health problem that makes it difficult to apply is one such good reason.
I should explain a little more about the background to the benefit. Different people may be affected to a different extent by the same disability of the same severity. The amount of care or help with mobility that someone has as a result of a particular disease or disability may increase or decrease over time. The fact that someone has a particular mobility need in August 1999 does not necessarily establish that they had similar needs at an earlier date.
Mrs. Cole claimed disability living allowance on 2 August 1999. She was notified on 23 September that she had been awarded the benefit, but she asked for backdating. The rules on DLA and attendance allowance are clear. Unlike other benefits, they cannot be backdated. Under the present rules, the earliest date on which a claim can be paid is the date on which an inquiry was made at the Benefits Agency about the benefit. In this case, the relevant date is 2 August.
248WH Decisions are made by adjudication officers—or, since October of last year, by decision makers in the Benefits Agency. Ministers cannot interfere in the individual decision any more than they can interfere in the decision of a court or any other judicial or quasi-judicial body. It appears that the rules were correctly applied in this case. My hon. Friend is asking whether the rules are appropriate and whether the Government should re-examine them.
One of Mrs. Cole's key complaints is that she did not know earlier than August of last year that she could claim disability living allowance. One of the fundamental rules of the benefit system is that the claimant has a responsibility to claim. My hon. Friend asked the Government to think about that. I shall think about it, but the basic reason for the rule is that the person claiming the benefit is the only one who knows about their needs—their medical or care needs if they are a disabled person, or their financial needs if they are claiming an income-related benefit. The Benefits Agency does not and cannot hold that knowledge, so it cannot have the ultimate responsibility to claim.
In a letter to me in February this year, my hon. Friend said that whether somebody knew of a benefit ought to be immaterial to a decision on whether they are entitled to it. I cannot agree with that. Only the claimant can know about their likely entitlement. The Benefits Agency does not have that knowledge.
However, I strongly agree with my hon. Friend that the Benefits Agency has a responsibility to inform the public of the existence of benefits, and to inform people how to claim them. He made a strong point about the low take-up of DLA: we ought to be able to do better with regard to take-up of DLA and attendance allowance.
We take seriously the requirement to inform the public, and spend more than £10 million a year on leaflets and posters. They are placed in post offices, doctors' surgeries and other appropriate places to try to ensure that people have the information that will enable them to decide whether they have a prima facie case and whether they should put in a claim.
My hon. Friend asked why the Benefits Agency does not send a leaflet to all those claiming incapacity benefit to advise them that they may be entitled to disability living allowance. In fact, it does: I have a copy of the claim pack used in 1996, when Mrs. Cole made her claim for incapacity benefit. The pack has changed slightly since then, but that does not affect the point that I want to make.
The claim pack contains a leaflet entitled "Notes About Incapacity Benefit", which contains advice about other benefits. The first of the other benefits mentioned in the section headed "Other help" is disability living allowance. It states that DLA is a
Social Security benefit for people with an illness of disability for people who need…help with getting around or…help with personal care or…help with both of these.If you want to find out more about this, get leaflet DS 704 Disability Living Allowance—you could benefit from any Social Security office.I do not think that it is enough for the Benefits Agency to say that it need do nothing else because that information is in the claim pack, but I hope that I have 249WH answered my hon. Friend's point. The wording has been amended slightly since 1996, but the information is still prominent.My hon. Friend asked why we do not invite all people who claim incapacity benefit also to put in a claim for disability living allowance. I think that that would be a mistake. Only one third of people in receipt of incapacity benefit also receive DLA. The entitlement conditions are different, and it is not immediately obvious to people in a Benefits Agency office that a person entitled to one benefit should be entitled to the other.
Both benefits are, of course, awarded in relation to a medical condition, but they have different purposes and tests of entitlement. Therefore, entitlement to one does not necessarily mean entitlement to the other. If everyone claiming IB were invited to claim DLA, two thirds of those so invited probably would not be entitled to it.
As my hon. Friend knows, the Benefits Agency already experiences considerable difficulty in processing the volume of DLA claims. We want to encourage more claims from people likely to be entitled to the benefit, to ensure that the low take-up rate is raised, but we do not want to gum up the works with a lot of claims from people who are not entitled.
We therefore need to focus our publicity very carefully. We are introducing a number of new measures that I think will help with the problem identified by my hon. Friend. For example, we are piloting a new claims service for benefits for people of working age called "The ONE Service". It will bring together the work of the employment service and of the Benefits Agency. As a result, people claiming any working-age benefit, including incapacity benefit, will get counselling and advice about training and searching for available jobs, given that a million people on incapacity benefit say that they would like to work.
In addition, the new service will give advice about the full range of benefits, including DLA. That was not the case in 1996, before the general election, when Mrs. Cole applied for incapacity benefit. Had the new system been in place then, she would have been advised, in a one-to-one interview with a personal adviser, that other benefits were available. I hope that that will help to avoid unfortunate circumstances such as those that my hon. Friend has brought to the attention of the House.
A benefits inquiry line—on 0800 88 22 00—has also been established, and is a source of advice for thousands of people every day. In addition, we publish a wide range of leaflets and posters.
The Department has been working with a range of bodies representing disabled people to examine how to improve the gateway to disability living allowance. That working group of voluntary bodies has brought forward proposals for new tests of eligibility that it calls "Activities of Managing Life". In some ways, the tests are closer to those used in the personal capability assessment, which is the test of entitlement to incapacity benefit.
The proposed tests are not the same as the present IB entitlement tests, so it would not be possible for a person to undergo a single examination. However, they may facilitate better co-ordination of the benefits in future. I hope that we will be able to test the AML tests in small- 250WH scale pilot studies later this year, but any change would have to be fully debated in Parliament as it would require primary legislation.
Finally, we will be piloting shortly an exercise called "Keeping in Touch", under which officials from the Benefits Agency will contact people on incapacity benefit periodically to review their entitlement to that benefit, and to others. That is an attempt to improve take-up and the accuracy of the benefits being paid.
In the few minutes remaining, I want to talk about the problems that the Government would face if we were to allow DLA to be backdated, as are some other benefits. DLA is already the most complicated benefit of all, and it is also the most subjective. That is why so many applications for it are turned down.
For jobseeker's allowance, for example, it is fairly simple to determine whether a person is in work or not. Similarly, it is fairly easy to determine a person's income or level of savings when deciding a claim for income support. However, determining how much help a person needs, by day or by night, to cope with a disabling condition or a chronic illness is a matter of subjective judgment by a doctor.
A determination on DLA requires judgments from a number of doctors. Evidence will be submitted by a person's general practitioner, and also probably by a specialist. In certain cases, the Department's doctors will also submit evidence, and the decision will be made accordingly. However, it is hard for the person making the decision always to make the right one. We are trying to improve that, and to get decisions right first time, but nevertheless a high rate of decisions are being overturned on appeal—usually because new evidence is submitted at that stage.
It is hard to get such decisions right where there is contemporary medical evidence. It would be even harder if a doctor's feelings about a person's care needs six months or a year before were sought. Because of the difficulty in getting accurate evidence that would be an appropriate guide to decision making, the backdating for DLA that my hon. Friend suggests has never been considered possible.
Some conditions make it easier to make assumptions about past needs. For example, a rule in disability living allowance states that double amputees qualify for the higher rate mobility component without having to demonstrate mobility needs. For a person who underwent a double amputation a year before making a DLA claim, the prima facie case is that, had that person applied earlier, he or she would have been entitled to DLA.
However, that is not true for all conditions. For example, it would be extremely difficult in relation to mental health conditions—
§ Mr. RammellI accept that the matter is extremely difficult, but should not the Government continue to consult—with people from the medical profession, and others—to see whether it would be possible to allow a limited extra backdating in accordance with a certain set of objective criteria? I am asking only that we keep looking at the problem.
§ Mr. BayleyI most certainly will keep looking at it. Some of the disability organisations already accuse us of 251WH unfairness, in that an amputee will automatically be entitled to DLA, but a person with a sensory disability, say, is much less likely to qualify.
I shall explore some other connected issues in correspondence with my hon. Friend. He has raised some very important matters, which have given the Government reason to pause. We will stop and think about what he has said, and I will reflect on his proposals with my officials. I shall write to my hon. Friend with a more detailed response.