Danny
Alexander: The purpose of the amendment is to ensure
through debate that the Disability Discrimination Act 1995 will apply
to assessments for the employment and support allowance. I hope that
the Minister can provide for that. The amendment has the support of a
number of organisations working in this area: Rethink, the National
Autistic Society, Mind, Together: Working for Wellbeing, the Royal
College of Psychiatrists, Mencap, Citizens Advice, the Sainsbury
Centre for Mental Health, Skill, the Disability Alliance and the
Parkinson’s Disease Society. I will not list all the supporters
for every amendment, but in this case it is a significant
list. There are a
number of reasons behind the amendment. One thing that the current high
level of appeals suggests, other than the factors we discussed earlier,
is that the assessment process is failing a significant number of
claimants. The assessment process itself needs to be more sensitive to
ensure that all claimants, regardless of the nature of their impairment
or condition, are able to participate fully and provide relevant
information during the assessment process itself. That would contribute
to better decision making and a reduction in the number of
appeals. Many
claimants, or potential claimants, who may come for assessment have a
right to reasonable adjustments under the Disability Discrimination
Act. However, the purpose of the amendment is to embed the right
explicitly in the assessment process to ensure that, as part of the
preliminaries to the assessment process, assessors ensure that possible
or reasonable adjustments are considered. From December 2006 the
Disability Discrimination Act will cover all functions of public
authorities and the public sector will be under a duty to promote
disability equality.
In response to the welfare
reform Green Paper, the Disability Rights Commission recommended that
the Department for Work and Pensions should work with its medical
services contractor Atos Origin—the company that conducts the
assessments—and other stakeholders to improve the process of
examinations and to anticipate and meet the disability equality duty
obligations, especially in relation to mental health. I understand that
the DWP have taken that up and there is some thinking that the contract
with Atos Origin should be reworded or reformulated so as to make that
clear. In addition to spelling out for the Committee that he considers
that appropriate, I hope the Minister will state what progress has been
made with Atos Origin in reviewing the existing contracts to ensure
that they meet disability equality duty
requirements.
Mr.
Murphy: The Government and the Department for Work
and Pensions are proud of our record in advancing the interests of
disabled people and other groups whose rights should be championed in
legislation. In many
cases it will be necessary to ask the customer to attend a medical
examination, especially at the start of a new claim for employment and
support allowance. The Committee has already discussed why that may be
necessary, even though we want the support group to ensure that in as
many instances as possible there will be no need to attend the medical
assessment. Although
attendance at these examinations is vital, we are aware that people
receiving employment and support allowance will have health conditions
or disabilities. We need to be flexible in how we arrange and carry out
the examinations, especially when we consider the diversity of
experience of customers on ESA. We are actively supporting those with
learning disabilities and mental health difficulties to give them a
chance to get back into the labour market. Where possible, we will put
the emphasis on flexibility and sensitivity, which includes making the
appropriate reasonable adjustments. Although I agree with the hon.
Gentleman’s sentiments, the amendments are unnecessary and I
will spell out why. As
hon. Members will be aware, section 21B of the Disability
Discrimination Act will come into force on 4 December. That
provision, which was inserted by the Disability Discrimination Act
2005, will make it unlawful for a public authority to discriminate
against a disabled person in carrying out its functions. In addition,
section 21E of the Act will also come fully into force on that day,
ensuring that public authorities will be under a duty to make
reasonable adjustments in carrying out their functions. The Secretary
of State's functions in relation to deciding or dealing with any claim
for employment and support allowance will be covered by these
provisions. I
appreciate that the hon. Gentleman may be concerned that medical
examinations and health-related assessments are likely to be undertaken
by a contractor on behalf of the Secretary of State, as they are at
present. The process in the contract, or subcontract will be similar to
the national roll-out of pathways to the private and voluntary sector.
However, let me make it clear that the Secretary of State will not be
avoiding his duties under the DDA by contracting with a private or
voluntary sector provider in relation to the
ESA. 3.45
pm The functions
of the Secretary of State in relation to ESA will remain his functions
even if he contracts with a third party to undertake them. Section
58(2) of the DDA provides
that “Anything
done by a person as agent for another person with the authority of that
other person shall be treated for the purposes of this Act as also done
by that other
person.” This means that
the Secretary of State will still be subject to all his duties and
obligations under the DDA. For the purposes of the DDA, anything done
by a contractor would be regarded as being done by the Secretary of
State. Because of that, the Secretary of State will want to ensure that
any contractor delivering services on his behalf supports his
compliance with his duties in the
Act. I fully
appreciate the importance of ensuring that all reasonable adjustments
are made in relation to customers attending for assessment in
connection with their claim for ESA and ensuring that that is done in
compliance with the duties placed on the Secretary of State by the DDA.
I reassure the hon. Gentleman and other hon. Members, who will be
interested in this point as a matter of principle and detail, that we
will ensure that any contractor undertaking such assessments on behalf
of the Secretary of State will be required to make all reasonable
adjustments, and that they will have to support such compliance, and
that these requirements will be fully reflected in the contractual
agreements with those contractors.
This has of necessity been a
technical explanation, but I hope that I have reassured the hon.
Gentleman. I hope that he will consider withdrawing his
amendment.
Danny
Alexander: That is one of the more reassuring speeches
that the Minister has made today and, on that basis, I am happy to beg
to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn.
The
Chairman: I call Mr. Hunt to move the next
amendment.
Mr.
Hunt: I beg to move amendment No. 224, in
clause 8, page 6, line 40, at
end insert— ‘(d) for a
person to be treated as having good cause for any act or omission if
the act or omission occurs as a consequence of his limited physical or
mental functioning, following such verification as the Secretary of
State may by regulation
prescribe.’. I
have been caught slightly on the
hop.
The
Chairman: Perhaps someone will raise a point of
order.
Danny
Alexander: On a point of order, Mr. Amess. If
it would be convenient for the Committee to consider amendment No. 171
first, I should be happy to proceed on that
basis.
The
Chairman: That is a helpful suggestion in these difficult
circumstances, but I remind the Committee that we are on amendment No.
224. I hope that the hon. Member for South-West Surrey soon finds his
notes.
Mr.
Hunt: I am grateful to Committee members for their
forbearance.
The
amendment has the support of a large number of charities in the
disability lobby. It seeks to protect customers from having their
limited capability for work, and therefore their entitlement to
benefit, called into question because of incapacity or impairment. We
are concerned that claimants may not turn up to an interview if, for
example, they suffer from a mental illness or anxiety, have difficulty
in understanding procedures, or have learning disabilities. Such mental
conditions may cause them to fail not only to turn up for an
interview—something for which the Bill contains
sanctions—but to inform the assessor that they will not be
turning up. I am sure that the Government do not intend such people to
be penalised for the very impairment that the Bill seeks to help them
address so that they are able to get into the labour market or to
return to
it.
John
Robertson: I realise that the amendment is important,
which is why the hon. Gentleman had to prepare for it. Will he tell me
how he stands in relation to those offenders who constantly fail to
turn up for interviews and who still use the exact excuse that he has
mentioned?
Mr.
Hunt: The hon. Gentleman makes an important point. That is
why the amendment would insert the words “good cause,” so
that flexibility would be given to the assessors, and so that they
could distinguish people who fail to turn up
deliberately—without good cause—thereby exploiting and
discrediting the process. We do not want any truck with such people.
However, there may be some who can participate in the process only with
assistance. For example, those who may be entitled to the support
element of the benefit may be able to participate only with the help of
a personal assistant or carer. They may not receive that help if the
carer does not turn up on the day or if the personal assistant is ill,
and that may prevent them from participating. I know that it is not the
Government’s intention that anyone in that category be
penalised. The amendment is therefore intended to probe the Government
to see whether safeguards will be in place to ensure that people are
not penalised in that
way.
Mr.
Murphy: I congratulate the hon. Member for South-West
Surrey on finding his amendment, and on moving it; or on moving it and
then finding it—I am not sure which. Perhaps I should
congratulate the hon. Member for Inverness, Nairn, Badenoch and
Strathspey for trying to move it on his behalf. I also congratulate
you, Mr. Amess: I have been here for nearly a decade but it
is the first time that I have seen a Chairman encourage a point of
order. I have never before seen a filibuster from a Chairman. The Bill
is unusual in many
ways. The way in which
the hon. Member for South-West Surrey moved his amendment suggested
that he anticipates being reassured, and I know that I can reassure
him. The PCA is, of course, an evidence-gathering process. Clause 8(4)
allows us to determine whether a customer who has without good cause
failed to provide the information requested or failed to take part in a
medical examination does or does not have limited capability for work.
Paragraphs (b) and (c) of that subsection permit regulations to
identify the matters that should be taken into account when considering
whether someone has shown good cause for a failure to provide
information or attend a medical examination. It also allows
identification of circumstances in which someone would be treated as
having, or not having, good
cause. The Government
intend to set out in regulations pursuant to clause 8 the matters that
will be taken into account in determining whether a customer has shown
good cause. We shall have discussions with all interested parties on
what should constitute good cause, because it is certainly not our
intention to adopt a sanctions-first approach in any aspect of the
Bill. The ethos that has run right through the pathways
programme, and that has made it so successful, is a sanctions-last
approach. That will permeate what we are seeking to do in this part of
the Bill. We shall
seek to ensure that no one is unfairly penalised. Regulations will
ensure that the matters that have been mentioned are included in the
factors to be taken into account. We shall not set out an exhaustive
list, because of the need to respond to the situations of individual
customers. Much will be set out in operational guidance, but we want to
ensure that those who are face to face with individual customers have
flexibility at a local level—flexibility that could not be
afforded by including all potential circumstances of good cause in a
central set of regulations. We shall list some of the more significant
circumstances, but we shall allow a sense of flexibility to determine
at a local level what is good cause. The intention is to allow people
to be able to argue what is and is not good cause, and my recollection
is that five days should be allowed in which to provide information.
The regulations already list as factors that we will take into account
the state of health of a claimant at the relevant time and the nature
of any disability from which he
suffers. I hope that
that response reassures the hon. Gentleman that we shall not seek to
penalise unnecessarily. Sanctions will be the last resort, and the
circumstances that constitute good cause will not only be set out in a
list but will be the subject of flexibility at a local level, so that
the circumstances that are known to exist around the country can be
taken into account.
The
Chairman: For the sake of clarity, I
remind the Committee that Mr. Jeremy Hunt moved the
amendment.
Mr.
Hunt: Before I respond to the Minister, may I thank you,
Mr. Amess, for your generosity and for encouraging an
appropriate point of order? May I also thank the hon. Member for
Inverness, Nairn, Badenoch and Strathspey for being willing to move his
amendment first.
Although I lost my place in my
notes, that was not because I believed the amendment to be unimportant,
and I am pleased that we have been able to bring the issue to the
Committee’s attention. Nevertheless, the Minister’s
comments have reassured me, so I beg to ask leave to withdraw the
amendment.
Amendment, by leave,
withdrawn. Further
consideration adjourned.—[Mr.
Heppell.] Adjourned
accordingly at three minutes to Four o’clock until Tuesday 24
October at half-past Ten
o’clock.
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