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Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011

My Lords, this is an important debate. I start by declaring my own interest as a director of the Wise Group in Glasgow. I have no pecuniary interest but the purpose that I am afforded by being a director of the Wise Group is that, four times a year, I get to go on a wet Friday to Glasgow after a six-hour train journey. Nevertheless, it is very fulfilling and important work. The group does an excellent job for the communities that it serves in Glasgow and I am pleased to be associated with it. That explains my interest in this important subject. The background to this debate is, quite simply, that after considerable consultation the disability organisations—most of which colleagues will know well, as we have been working with them for many years—have concluded through the Disability Benefits Consortium that these regulations imperfectly achieve their policy objective. That is a clear steer that the disability community would like the House to consider annulling these regulations and we owe them nothing less than to do that. I start by acknowledging the work of the Minister, who has brought drive and commitment to this policy area since he wrote his original report those few years ago. I am absolutely at one with him in trying to discourage inactivity and encourage sustaining work. I think we both understand that Carol Black’s work changed the game of active labour markets and I stand four-square with him in trying to make sure that we can develop and deliver schemes that enable people to get out of inactivity and into work. That work has to be productive and sustainable, but if they can do that then the well-being of the client group that we are seeking to serve will improve. I am founding the evidence for this evening’s debate on the excellent work that has been done, as I say every time we talk about the subject, both by the Social Security Advisory Committee and by the Merits Committee, which looked at this in very great detail in its 23rd report. These are complicated regulations but if any colleagues are looking for a quick summary of exactly where this subject’s importance lies and of its importance to the individuals concerned, they should look at appendix 1 of that report and the evidence that was laid out there compellingly. The Social Security Advisory Committee report that was produced, which was done with formal reference to these regulations, also repays careful study and is worth reading. I start with a concern that is new to me and disturbing if true. I would like to hear the Minister’s view on it. The SSAC says, in its conclusions at paragraph 19: "““The Committee is concerned that there is a disagreement of substance between the Department and the external stakeholders who participated in the review as to whether the””," work capability assessment, "““in its present form could be said to be working satisfactorily””." If that is true and the stakeholder community is talking past the department and neither party tries to get back into some sort of meaningful communication, it is in no one’s interests. I do not know what happened in the past but that is the first time I have ever seen an SSAC report saying anything so stark. I do not know whether it is true but I would like an assurance that the Minister will redouble any of the efforts which I know he has been making to ensure that that gap is expeditiously closed. It would be inimical to the interests of the client group that we are trying to help if the pressure group community does not have confidence in its channels of communication with the department. I hope that he can give us that reassurance. The other evidence which is the core of the debate is the Social Security Advisory Committee’s view at paragraph 4.3. I will quote another sentence which encapsulates a whole load of evidence that I do not have time to go into. Perhaps other colleagues might pursue that, particularly on mental health, learning disability and fluctuating conditions. After a very big consultation—I think it had 400 responses—the committee noted that the department is undertaking an ongoing programme of review but concluded, among other things: "““There appears to be a widespread perception that, overall, rather than simplifying, streamlining and refining the test, these amendments””," in these regulations, "““will make it harder in practice for claimants to demonstrate that they are incapable of work or that they have limited capacity for work or work-related activity””." That is the core of my concern, which the department now has to address. As I say, I am absolutely indebted to the Social Security Advisory Committee and the Merits Committee, as we all are. Indeed, Richard Tilt, the chairman of the former committee, is an extremely wise man and his experience will, I hope, be available to us for some time to come. Briefly stated, this is one of the biggest changes that I have ever seen in social security since I started studying this policy area when I was elected to another place in 1983. Why? Because in April we will open the door to a national reassessment of 2.6 million people. We have a model which arguably does not work for employment and support allowance claimants yet. It is a work in progress, but I am absolutely persuaded that Parliament is trying its best to get on top of it. However if in April we are really considering taking on an extra 10,000 or 11,000 new cases each week—it might be each month, but whichever—it is a very big increase and raises questions about capacity. We have to consider the capacity of the Atos Healthcare medical professionals who do these functional capability assessments for work capability assessments, and it raises questions about capacity for jobseeker’s allowance as well. There is a huge difference between a customer making an application de novo for employment and support allowance and somebody in Glasgow who has been unemployed for 10 years, who has been on incapacity benefit, and who gets a letter asking him to call at the Atos Healthcare professional centre to have his benefit assessed. He will know that if he does not get the continuing levels of support that he currently enjoys he could be £30 per week worse off at a stroke. I go back to where I came in. I am absolutely in favour of ensuring that everybody who can contribute to the world of work should do so. There is no doubt in anybody’s mind that there are people who need a wake-up call, to use the expression of my American friends. Indeed, there are people who swing the lead, do not play the game and act in bad faith. I know all these things. However, to take 2.6 million over three years and put them through a process where the model has not been absolutely rigorously road-tested to everybody’s satisfaction is not safe. That is the case that the disability organisations have been making to me. If that is not hard enough we have the deficit reduction programme, which I also support. We cannot ignore the fact that this country is now poorer than it was a while ago. There are also regional and spatial dimensions because labour markets vary. The labour market in Reading is very different from that in downtown Glasgow, which must be borne in mind. On top of that, the work programme, which again I support, is still in gestation. We do not know the detail of how the work programme will serve the client group that we are seeking to help. I think that the identified concerns about the functional capability assessment—it is not a medical assessment—are well founded. If anybody has any doubt that there are problems around it, I point out that the successful appeal rate against decisions on the current scheme is high, suggesting that attention must be paid to these provisions, particularly for mental health and fluctuating condition clients. There are advantages in the regulations. I certainly welcome the chemotherapy and residential drug changes. They are not to be diminished in any way because they will help substantially the group that they are designed to serve. The biggest complaint comes from the disability stakeholder pressure group community. Professor Harrington has published his phase 1 report, which is truly an excellent piece of work. It offers a series of recommendations which really deal in a much more real-world way with the kind of problems that people face. The complaint is that we are not waiting for the totality of the Harrington work to be put in place. He is already starting on the second annual independent assessment, where he will look at the descriptors for fluctuating circumstances and the like. The results of that will be available probably in late 2011. We should not be opening the gate to the national reassessment of incapacity benefit claimants until we see what Professor Harrington can come up with. That is what the disability organisations say and it is a prima facie valid claim. Colleagues will know this because we spent a lot of time on the Welfare Reform Act 2007, when the previous Government sensibly required a five-year annual set of reviews. Some of the complaints that the disability groups make is that this will be a piecemeal change, which is the legislators’ fault. We rightly felt that it was not safe to do it without getting independent reviews. The previous Government were right to do that and this Government were right to get Professor Harrington on the case. He brings hope to the whole situation—he certainly does to me. I have three questions for my noble friend before I sit down. They are all about Harrington phase 1. First, if that report were in place in its totality before the April rollout of the national reassessment—all of it, including its tone—that would be of signal reassurance to me, if to no one else. I am speaking this evening for no one but myself. Secondly, the key recommendation that leapt out of the page of the Harrington phase 1 report was the fact that decision-makers were not properly shouldering the responsibility that the scheme was designed to give them. They were rubber-stamping Atos Healthcare professional decisions because they had not seen the client. The functional assessments were allegedly done by healthcare professionals, so why would you want to change anything? The system was never designed to do that. Can my noble friend give me a clear understanding that Harrington phase 1 will be available by 1 April? Decision-makers should have much more discretion, which would take them back to the position of the old adjudication officers whom we abandoned in 1998 and who were much more independent of the department than arguably some of these decision-makers. Can we get them to use a little grey-cell common sense on what is in front of them? That would be of considerable assistance. Communication between the system and the clients is essential. Harrington again fundamentally points out that communication is not yet adequate. Nobody going through the process should have to do it without direct access to the recommendations of the Atos Healthcare professional after the work capability assessment. I do not think that that happens properly now but that information should be shared, and shared with the decision-maker as well. If the results were communicated to people, it would improve things enormously. Finally, the client should be encouraged not just to bring his own medical evidence to the work capability assessment but to make it available to the decision-maker. If the decision-maker has, say, a GP report, he is taking more responsibility and discretion for the decision and he is communicating that clearly to the client. We still have fluctuating circumstances and conditions to deal with, which has not been addressed yet, so that would not be dealt with in my suggestions. Speaking for myself, I hope that my noble friend can give assurances that the seriousness of the situation is being fully comprehended and accommodated in departmental thinking and that Harrington phase 1 will be in place without peradventure before the reassessment starts. If some of the Harrington recommendations are highlighted in the way I have suggested, I certainly think that there would be some reassurance in the disability community that the situation is not as unsafe as it suspects. I hope that the Minister can help by explaining the situation later in the debate this evening. I beg to move.