Mr.
Ruffley: I hear what the Minister is saying, but will he
give more examples of circumstances that he believes might require
flexibility on the part of the Secretary of State? I understand his
point on the need for flexibility, but in relation to what is it
needed?
Mr.
Murphy: I seek to make no party point, but I imagine that
if we had had this conversation only five or 10 years ago and were
designing regulations and benefit entitlements, we would not have
foreseen the growth that there has been in fluctuating mental health
conditions, which have become common among
incapacity benefit claimants. Some 40 per cent. of claimants are now
coming into the incapacity benefit scheme as a consequence of such
conditions. There have been societal changes such as the introduction
of the Disability Discrimination Act 1995, which places employment in a
different legal context. There has been a change in the governmental
and cross-party perception of the role that those with learning
disabilities can have in the labour market. We would not have been able
to predict the extent of such changes 10, 15 or 20 years ago. We
therefore need flexibility in the Bill to enable us to take account of
any further changes in family structure, trends in health and poverty
and all sorts of other trends such as those in the past 15 years that
we could not have anticipated. I offer that as a reasonable point
without apportioning party political blame or responsibility for
changes. I hope that that addresses the hon. Gentleman’s
point. The second set
of amendments in the group is on the assessment phase. As I said on
clause 1, that phase is key to the structure of the new allowance. It
is important to assess all customers, not just those in the younger age
bracket. We want to avoid making assumptions about any individual until
they have been through the personal capability assessment. I know that
my hon. Friend the Member for Glasgow, North-West offers us a probing
amendment to tease out the Government’s thinking, but someone
should be entitled to the ESA not at the point of application but at
the end of the assessment phase. We have set that at 13
weeks—three months—based on our experience of what we
think has worked in the pathways to work programme and the way in which
we have been able to support people.
We think that that assessment
phase is important and we also believe that it should be a standard
length. We have returned to the second basic principle of ESA, which is
that there should be a national set of rules and regulations. It would
be unfair for some people to move to the higher rate of benefit earlier
than others because of a geographic or postcode lottery based on how
quickly the assessment can take place.
I wonder whether by offering
that assurance to my hon. Friend I can tempt him to withdraw his
amendment. If the assessment phase takes longer than 13 weeks, not
because of the actions of the customer but because of problems at DWP,
Atos Origin, or the health service, or because of any other
circumstance outside the reasonable control of the claimant or
customer, we will backdate to that point. So, if the assessment phase
were to last 16 or 17 weeks because of pressures in the health service
or a lack of availability of other advice, we would certainly backdate
to the 13-week limit so that people would not be punished through a
postcode lottery. It is important to put that on the record.
In respect of
amendment No. 50, our general approach is that people should be in the
support group based on an objective assessment through a PCA. We have
had the conversation about labour market disadvantage. The PCA should
be a medical assessment of their functional capability and what they
can still contribute to the labour market. It would not be right to put
an arbitrary time limit on that commitment and to say that, after a
certain point, we will allow, in some instances, the reinvention of
incapacity benefit. We are determined
to ensure that people should not be written off wholesale. We should not
say, “You should not be written off—unless we have tried
really hard for six, nine, 12 or 18 months. Gosh, we have not been able
to help you. You have been passported, now enter the support
group”. That is not the right way to go about things. There is an alternative,
however, which is to allow additional PCAs. If the condition changes,
the revised PCA is a much better way of dealing with the matter. It
will primarily be based on medical advice that the circumstances have
changed. At that point, someone in the work-related activity group
could be assessed in their revised PCA so that they go into the support
group, and, to be truthful, that could happen the other way
round.
Mr.
Boswell: Will the Minister hazard a guess as to the
proportion of such cases that is likely to come along, and the amount
of resources that will be required in order to conduct the repeat
PCAs?
Mr.
Murphy: Gentle as the hon. Gentleman’s
encouragement is, I shall not be tempted to hazard a guess at the
specific number or the cost. It should be based not on an arbitrary
Government target, but on the objective medical assessment of each
individual. For us to set an arbitrary target nationally and to say
that Atos Origin must ensure that 4 per cent., 7 per cent., 11 per
cent., 1 per cent. or any percentage of folk should go into the support
group, be taken out of it or be put into it from the work-related
activity group after a second PCA is a wrong-headed way of looking at
it. It is about an individual objective assessment of someone’s
capability, and that is the way in which people would change between
one and the other.
Mr.
Ruffley: On amendment No. 50, although not on amendment
No. 222 and the related amendments, the Minister is satisfying me. Will
he nail this point down for me? In the example I gave of someone who is
in the work-related activity component but wishes to try to move onto
the support component, what would be the mechanics of getting a new
assessment? Would there be a right to it and how quickly could it be
done? In other words, how could a new PCA be done and what rights would
the individual have?
Mr.
Murphy: One of the weaknesses in the incapacity benefits
system is that the gap is far too long. We say that it is about three
years, but in truth there is great variation across it. In saying that
I mean no disrespect to the folk at Atos Origin, who are working very
hard and who have improved their operations in recent
years. I
do not wish to disappoint the hon. Gentleman, but my response is
similar to the one that I gave his hon. Friend the Member for Daventry:
we do not wish to set an arbitrary target. If, based on a medical
assessment, someone’s condition is considered to have improved,
or deteriorated, it is then that it is appropriate to have a new PCA,
rather than after nine months, or 14 months and three days, or anything
of that nature. It should not be time limited—it should vary
based on the individual.
The hon. Gentleman warmly
welcomed the idea of focusing on people as individuals, and I know that
he still warmly supports
that.
6.15
pm Mr.
Wayne David (Caerphilly) (Lab): Is the Minister in a
position to give a categorical commitment that anyone who has been
diagnosed with a terminal illness will automatically be
included?
Mr.
Murphy: I think that we are about to have a conversation
about that in relation to certain amendments that have been tabled by
my hon. Friend the Member for Glasgow, North-West, and I shall happily
respond during that
debate. I hope that I
have reassured the hon. Member for Bury St. Edmunds (Mr.
Ruffley) on clause 50. We recognise that there are some customers who
may not demonstrate the level of functional limitation that would place
them in the support group, but for whom the support group is still the
most appropriate group. That is why we have taken the powers in
paragraph 9(a) of schedule 2, so that in prescribed circumstances we
can treat people as having limited capability for work-related
activity. That brings us to the point that was raised by my hon. Friend
the Member for Caerphilly (Mr. David), which we shall
discuss with the next set of
amendments. The power
to prescribe such circumstances is similar to the power that we have
taken in other legislation. For example, the Child Support, Pensions
and Social Security Act 2000 incorporated section 44A into the Social
Security Contributions and Benefits Act 1992. It was used in 2001 and
it came into force in 2002. It is important to have the power to
implement flexibly, in the light of circumstances—whether
concerning the workplace or societal or legislative attitudes—so
as not to have to revisit primary legislation within a very short time
in the light of changes and trends in society. Given those comments and
that rationale, I encourage Opposition Members not to press their
amendments.
Mr.
Ruffley: I take on board the Minister’s remarks
about amendment No. 50, and I am happy not to press it. Nevertheless, I
know that there is concern among Opposition Members about having such
open-ended powers. Societal changes happen, but the prospect of
Ministers having powers in their hands without having to come back to
the House of Commons to justify what is a sensitive area of public
policy means that I shall seek to press amendment No. 222 and the
related amendments.
The
Chairman: Mr. Murphy, I believe that you were
about to ask Mr. Robertson if he would withdraw his
amendment.
Mr.
Murphy: I thought that I had already done so,
Mr. Hood. I invite my hon. Friend to do that on the basis of
the reassurance that I offered about backdating payments if the
assessment period is exceeded through no fault of the
customer.
John
Robertson: I thank my hon. Friend for his words on
flexibility and backdating. I shall read what he has said with care and
deliberate on it between now and Report. For the present, I beg to ask
leave to withdraw the amendment.
Amendment, by leave,
withdrawn. Amendment
proposed: No. 222, in clause 2, page 2, line 29, leave out
paragraph (c).—[Mr.
Ruffley.] Question
put, That the amendment be made:—
The
Committee divided: Ayes 4, Noes
10.
Division
No.
2] Question
accordingly negatived.
John
Robertson: I beg to move amendment No. 142, in
clause 2, page 2, line 43, at
end insert— ‘( ) he is
undergoing or recovering from treatment for a serious or
life-threatening illness or is terminally ill as prescribed through
regulations,
or’.
The
Chairman: With this it will be convenient to discuss
amendment No. 140, in clause 2, page 3, line 2, at end
insert— ‘(6) For the
purposes of this Part, the assessment phase for a person who is
terminally ill as prescribed through regulations will be no longer than
one
month.’.
John
Robertson: These are emotive amendments and the issues are
always difficult to deal with, but they are extremely important. The
amendments are possibly more important than any others I have spoken to
today. They are in my name, that of my hon. Friend the Member for
Dumfries and Galloway (Mr. Brown) and others and their aim
is to include in the support group patients undergoing cancer treatment
and those with terminal illnesses. We want those undergoing active
treatment to be included in the support group for a minimum of 12
months. At this
point, I want to thank Macmillan Cancer Support and many others who
have assisted, including the Disability Benefits Consortium. There are
too many names to read out, but I particularly want to thank Macmillan
Cancer Support, not simply on a personal level for the help that it has
given many members of my family who unfortunately had cancer but for
its help in drawing up these
amendments. I welcome
the inclusion of terminally-ill people in the support group and the
commitment to achieving that through paper-based assessment rather than
requiring a face-to-face medical assessment. Not all patients
undergoing active debilitating cancer treatments are included in the
support group. I also welcome the inclusion of the majority of people
undergoing chemotherapy treatment in the support group. However, I am
concerned that the regulations as drafted do not cover all patients
undergoing active seriously debilitating cancer treatment. In
particular, I feel that it would be of value to ask the Minister
whether the Government intend to treat patients undergoing oral
chemotherapy as having limited capability for work as they are not
included in the draft regulations on certain persons to be treated as
having limited capability for work-related activity. Will patients undergoing
radiotherapy be treated as having limited capability for work-related
activity? Will patients undergoing or recovering from major surgery for
a serious or life-threatening illness, such as cancer, be treated as
having limited capability for work-related activity? It is not clear
for how long people undergoing active treatment would be included in
the support group, so it would be valuable to clarify for how long
people would be included in the support group before being subject to
review. The wording of the draft regulations suggests that they would
be included during chemotherapy treatment and it is felt that
12 months to allow for several months of treatment and a period of
recovery is a reasonable fixed period after which to review support
group status for these claimants. It may be helpful to note that our
support for inclusion in the support group for a fixed period of 12
months of someone undergoing or recovering from chemotherapy or
radiotherapy or major surgery is based on advice from clinician
Professor Jane Maher, chief medical officer at Macmillan Cancer Support
and consultant clinical oncologist at Mount Vernon cancer centre at
Hillingdon hospital, where she has worked for the past 20 years with
Dr. Gareth Tuckwell, medical director of Hospice in the Weald, Kent and
a member also of the Macmillan board of
trustees. Further
evidence, if it is needed, of the distress caused by the current poor
implementation of discretion, comes from Macmillan benefit advisers who
have encountered a number of cases in which Jobcentre Plus staff have
imposed inappropriate attendance requirements or conducted focus
interviews with seriously ill patients. I believe that Macmillan has
provided the DWP with some case studies. I shall read out only one so
that members understand its train of thought.
In September 2005, a Macmillan
benefits adviser in the west of Scotland was advising a terminally ill
client attending a hospice and receiving disability living allowance
under special rules. The client needed to make a new claim for IB so
the adviser telephoned the Glasgow Jobcentre Plus office on their
behalf to say that the client was bed bound, but the official refused
to waive the interview. Instead, the official sent out a visiting
officer. On arrival at the hospice, it quickly became obvious to the
officer that the client was seriously ill, and unfortunately the client
has since
died. Amendment No.
140 concerns fast-tracking those with a terminal illness. The aim is
for all people with a terminal illness, including new claimants, to be
fast-tracked to the support group through a swift and simple
paper-based assessment. There are concerns about the draft regulations.
We welcome the inclusion of terminally ill people in the support group
and the commitment to achieving this through paper-based assessment
rather than face-to-face medical
assessments, as is currently the case. However, it is not clear whether
terminally ill people will be able to access the support group
quickly. Furthermore,
it is not clear from the draft regulations and support material whether
the DWP intends to fast-track the claims of terminally ill people. We
feel that that would be valuable in clarifying certain matters. For
instance, how long will a new, terminally ill claimant have to wait
before being included in the support group? As stated previously, we
feel that one month is a realistic and appropriate length of time. They
should not have to spend 13 weeks on a low-rate JSA. Furthermore, how
long will an existing claimant, receiving the work-related activity
component who then becomes terminally ill, have to wait before being
included in the support
group? I know that my
hon. Friend the Minister is sympathetic to my amendments and my
concerns, and I ask him on this occasion to accept them, or at least to
draft his own to satisfy the points that I have
raised.
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