Previous Section Back to Table of Contents Lords Hansard Home Page

Viscount Ullswater: I believe that I indicated to the noble Lord, Lord Williams, that the Trades Descriptions Act 1968 is the legislation which covers that sort of possibility. Therefore, if false claims are being made

9 Feb 1995 : Column 367

which need further specification, it is under the Trades Descriptions Act rather than the legislation now before us that any action considered necessary should be taken.

Baroness Hamwee: I understand that fact. However, in a tight parliamentary timetable, I was merely seeking to make a helpful suggestion. I am grateful to the Minister for his response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 303C, 303D and 304 not moved.]

Clause 76, as amended, agreed to.

Clause 77 [Producer responsibility: supplementary provisions]:

[Amendments Nos. 305 and 306 not moved.]

Viscount Ullswater moved Amendment No. 306ZA:

Page 83, line 24, at end insert (", whether generally or in any prescribed way").

The noble Viscount said: I spoke to the above amendment when moving Amendment No. 298A. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 306A and 307 not moved.]

Viscount Ullswater moved Amendments Nos. 307A, 307B, 307C and 307D:

Page 83, line 26, leave out ("of exemption schemes") and insert (", or withdrawal of approval, of exemption schemes by the Secretary of State;").
Page 83, line 32, after ("schemes,") insert ("the imposition of conditions in connection with such registration, the variation of such conditions,").
Page 83, line 42, at end insert:
("( ) the exclusion or modification of any provision of the Restrictive Trade Practices Acts 1976 and 1977 in relation to exemption schemes or in relation to agreements where at least one of the parties is an operator of an exemption scheme;").
Page 84, line 7, after ("registration,") insert ("the imposition of conditions in connection with registration,").

The noble Viscount said: I spoke to the above amendments when dealing with Amendment No. 298A. I beg to move.

On Question, amendments agreed to.

[Amendments Nos. 308 and 309 not moved.]

Viscount Ullswater moved Amendments Nos. 309ZA, 309ZB and 309ZC:

Page 84, line 24, at end insert:
("( ) the conferring on prescribed persons of power to require, for the purposes of or otherwise in connection with competition scrutiny, the provision by any person of any information which he has, or which he may at any future time acquire, relating to any exemption scheme or to any acts or omissions of an operator of such a scheme or of any person dealing with such an operator;").
Page 85, line 33, leave out ("a registered") and insert ("an").
Page 86, line 6, leave out ("mandamus or, in Scotland,") and insert ("injunction or, in Scotland, by interdict or").

9 Feb 1995 : Column 368

On Question, amendments agreed to.

Clause 77, as amended, agreed to.

Clause 78 [Producer responsibility: offences]:

[Amendment No. 309A not moved.]

[Amendment No. 309B had been withdrawn from the Marshalled List.]

Clause 78 agreed to.

The Earl of Lindsay: I beg to move that the House be now resumed. In moving the Motion, perhaps I may suggest that the Committee stage begin again at, or as soon as possible after, five minutes past eight o'clock.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Social Security (Incapacity for Work) (General) Regulations 1995

7.5 p.m.

Lord Swinfen rose to move to resolve, That this House calls on Her Majesty's Government to withdraw the draft Social Security (Incapacity for Work) (General) Regulations 1995 laid before the House on Monday 30th January and amend Regulation 6(1) (b) so as to replace the words "in the form of a questionnaire relating to a person's ability to perform the activities referred to in the Schedule" with the words "relevant to the person's capacity to perform work of which he would otherwise have been capable".

The noble Lord said: My Lords, the Motion calls upon the Government to redraft the regulations in order to define the all work test by reference to work for which someone would otherwise be capable.

The Motion is important for three reasons. First, until today, the House has been unable to have an informed debate on the nature of the new test of incapacity. Despite the new test being described by the Minister in another place last week (at col. 1234 of Hansard on 2nd February) as,

    "the key to our reforms",

there was no opportunity to debate the matter fully during the passage of the parent Act as the matter was left to regulations.

Secondly, the functional test is an inappropriate measure of incapacity for work, and has been criticised as fundamentally flawed by medical experts and disability organisations. In fact, it is a measure of disability, not incapacity for work. Thirdly, the regulations themselves are inadequate because even now they do not provide any definitions which will enable disabled people to understand the system or the Benefits Agency to administer it.

During the passage of the Social Security (Incapacity for Work) legislation, debates were limited because the precise nature of the new test was the subject of some deliberation by a "panel of experts" and the

9 Feb 1995 : Column 369

development work of the Department of Social Security. The Minister, the noble Baroness, Lady Cumberlege, stated:

    "The Bill has been prepared on the basis that the all work test, and hence the definition of incapacity, will be defined in regulations".

The Minister went on to advise against further amendments to the Bill and added:

    "To attempt to introduce at this stage a specific definition of incapacity on the face of the Bill could change the nature of the test adversely".—[Official Report, 19/5/94; col. 390.]

The Minister has also said:

    "While the consultation and development period is still going on, it is not possible to put down details of the test in the Bill".—[Official Report, 21/4/94; col. 325.]

Even amendments which would have inserted a definition of "work" or "incapacity" along the lines that the panel of experts was considering were not accepted.

The regulations go to the heart of the new incapacity benefit in laying out the test of incapacity for work. Yet the basis of the test is fatally flawed. Incapacity for work is about more than the ability to pick up a bag of potatoes. There has to be reference to other factors personal to the claimant which have a bearing on work which he can reasonably be expected to do. Ever since the present invalidity benefit was introduced by a Conservative Government in 1971, matters such as age, previous work experience, education and training, have been considered as directly relevant to work capacity.

Even the private insurance industry adopts a definition which assesses work,

    "for which someone is suited by education, training and experience".

Page 23 of the report of the insurance ombudsman for 1993 stated:

    "There is no point in expecting a man who has been a labourer all his life to be able to do clerical work ... it must be taken as implicit that there is a reasonable chance of the policyholder being acceptable to an employer in that field".

Clearly, age is related to incapacity for work. That has been recognised by the department's own research into invalidity benefit claimants which suggests that the age of 50 is a turning point for those with ill-health and disability. Age has also been recognised by the Government in giving transitional protection to people who are currently on invalidity benefit and who will be over 58 at the time of change. But the new test neglects the impact of age. What about people who just miss the threshold score by one or two points? For instance, what happens to someone who has arthritis of the spine, knees and wrists, has been a carpenter all his life and is now 62 and unable to work? If he scores 14, he will not be entitled to benefit. His age and particular lifetime work experience will be regarded as irrelevant to his capacity for work.

The final version of the test was supposed to take into account the results of the consultation process. My noble friend Viscount Astor stated at Third Reading that regulations would be drafted, account having been taken of comments received during final consultation. He stated:

    "It is important that the new test is seen to be comprehensive and to have acceptance by many of the interested bodies involved."—[Official Report, 19/5/94; col. 394.]

9 Feb 1995 : Column 370

Yet where is the evidence of such acceptance? It certainly does not lie in the responses to the consultation. The document on the new assessment issued at the end of September tells us on page 39 that a majority of respondents to an exercise in the previous February expressed concern about the policy of basing the test on medical factors alone to the exclusion of factors such as age and skills. One is tempted to ask: what is the point of consultation when a majority of responses are hostile to the proposal and the Government press ahead regardless? It is like going through a red light.

Even members of the expert panel do not agree with the concept of the test. Some could not or did not even complete the exercises that were set. Writing to the Minister on the 6th May, 10 of them stated that even those who had completed the exercises

    "found that [they] have reinforced the potential difficulties we perceive as inevitable in a measurement of incapacity such as this. In particular we are concerned about the arbitrariness of scoring according to mechanical functions without reference to other factors such as age or employment history. The concentration on functions to the exclusion of all else is contrary to the whole person approach which so many of us advocate."

Another panel member representing the BMA walked out of the panel exercise, according to Pulse magazine on 9th July last. According to that magazine, Dr. Ian Bogle said:

    "I have a lot of trouble with a checklist that leads me to give a score to a patient..."

I understand that the representative of the Royal College of General Practitioners, Dr. Douglas Garvie, expressed reservations about the lack of GP input into the new process.

That even members of the expert panel did not believe in the policy means that these regulations can have no acceptance beyond the narrow confines of the Department of Social Security. Not only the panel but other experts, including all five professors of rehabilitation—none of whom was represented on the panel—stated that the test was fundamentally mistaken in principle, it having no scientific or logical credibility.

The regulations include a seed of doubt about the basis of the functional test. The exceptional circumstances listed in Regulation 27 allow for some people who fall within the scope of that regulation to be treated as incapable of work, even if they do not satisfy the functional test. The very existence of these exceptional cases drives a coach and horses through the ludicrous idea that capacity for work can be assessed by functional impairment alone.

I believe that the regulations are inadequate. The new test will be far from the simpler, fairer and more objective assessment of incapacity described by the Minister in the other place on 2nd February last (at col. 1233 of Commons Hansard). It was pointed out by Mr. Alan Howarth, MP:

    "the proposition that there can be an objective medical test of capacity for work—for all work—is fundamentally misconceived."—[Official Report, Commons; 2/2/95; col. 1248.]

The test is not simpler. It will be a messy combination of diagnosis, treatment, prognosis, severity of condition and a limited number of functions. After the first 28 weeks, somehow it will have to be established whether

9 Feb 1995 : Column 371

someone falls within the exempt category in Regulation 10. This will depend on receipt of the highest rate of DLA care component and whether the person suffers from one of a list of conditions. This is part diagnosis and part receipt of benefit. In order for people to have severe conditions, the crossover point from a moderate to a severe condition has to be decided.

It is to be welcomed that the belated amendments to the regulations now include severe mental ill-health in the list of exempt groups. Many organisations feared that people with severe mental illness would not be covered by transitional protection. It is to be regretted that that omission has caused so much concern and was rectified only on 31st January. However, there is likely to be considerable confusion as to who and at what point someone can fall within an exempt category. The failure in Regulation 10 fully to define the groups of people who will be treated as incapable of work is destined to cause considerable confusion. For example, at what point does a neurological disease become severe and progressive, or a mental health problem severe?

Next, having failed to fall within Regulation 10, a claimant has to undergo a functional test and score at least 15 to qualify for benefit. A score of 14 or below will give no entitlement. Are the Government really saying that incapacity for all work equates with the inability to walk more than 50 metres? Conversely, does an ability to walk more than 400 metres mean that someone is capable of all work? The descriptors in the schedule do not address the work capacity of someone who may be able to perform the functions but cannot automatically be regarded as capable of work. What of someone who is convalescing for a considerable period of time following an operation or illness, such as glandular fever?

If the claimant fails at this point—I understand that the Government expect some 220,000 current claimants and another 55,000 new claimants to do so—there are four exceptional circumstances to be addressed. The person will be assessed by the Benefits Agency doctor, but the adjudication officer will make the decision. How will the doctors decide at what point someone's condition is severe? How will claimants know whether they are exempt? How can they appeal if they believe the Benefits Agency doctors to be wrong?

Finally, the regulations miss out some key factors. At Committee stage in this House on 21st April 1994 my noble friend Lady Cumberlege stated (at col. 300):

    "the 'all work' assessment will include all the medical factors raised by these amendments, such as pain, stress and general health".

She also stated (at col. 301):

    "the new test will assess physical and mental disabilities which affect a person's capacity for work in a range of physical functions. Mental health will also be assessed and the effects of pain, stress and fatigue."

Yet, if we look at the regulations, where is pain, stress or fatigue?"

I have read the Minister's assertion in the House of Commons last week that those factors will be taken into account and will appear on the questionnaire, those concerns do not appear in the regulations. The abilities listed in the schedule do not mention pain, stress, fatigue

9 Feb 1995 : Column 372

and variability, so it is unclear how they can be taken into account. Results of the first evaluation exercise detailed in the document entitled The Medical Assessment for Incapacity Benefit found that medical factors not reflected in the functional assessment being tested were taken as contributing to work incapacity. Those included situations where:

    "full account had not been taken in clinical opinion of the effects of pain or variability and fluctuation in functional limitations".

That appeared on page 60. Other matters listed in that section appear in revised form in Regulation 27. Why have factors such as pain, stress and fatigue been left out when the Government have stated that clinical examination has revealed that those factors are relevant?

The Minister stated in the other place last week that there were more amendments to the regulations in the pipeline, which would be made before the implementation of the test and subject to the affirmative procedures. Can my noble friend explain in detail what those amendments will be and when they will be laid before the House?

I must apologise for taking so long, but this is an important matter. It is possible for the House to vote on the Motion. I understand that the House has voted on similar Motions some 26 times since 1979.

This Motion to resolve is far more constructive in seeking for the regulations to be re-drafted and does not prevent them being brought back before the House later in this Session. The regulations, properly amended, would make the all work test more realistic rather than a mechanistic test. I beg to move.

Moved to resolve, That this House calls on Her Majesty's Government to withdraw the draft Social Security (Incapacity for Work) (General) Regulations 1995 laid before the House on Monday 30th January and amend Regulation 6(1) (b) so as to replace the words "in the form of a questionnaire relating to a person's ability to perform the activities referred to in the Schedule" with the words "relevant to the person's capacity to perform work of which he would otherwise have been capable".—(Lord Swinfen.)

7.21 p.m.

The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, I beg to move that the draft Social Security (Incapacity for Work) (General) Regulations 1995 and the draft Social Security (Incapacity Benefit) (Transitional) Regulations 1995 laid before the House on 30th January 1995 be approved.

The regulations before the House today provide for the introduction of the new incapacity benefit.

Next Section Back to Table of Contents Lords Hansard Home Page