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

My Lords, the House should be indebted to the noble Lord, Lord Kirkwood, for giving us the chance to debate the regulations this evening. Like me, and other noble Lords I see present, he has been involved in issues concerning the employment and support allowance and the WCA for a long period. The noble Lord congratulated the former Government on insisting on the annual reviews. If memory serves, that may have been an amendment that he pressed on us at the time. I start by explaining my understanding of the rationale of why the work capability assessment and the employment and support allowance were introduced. It was part of the journey which recognised the importance of work for people's route out of poverty, their self-esteem, well-being and health. The concept was that, for the vast majority, work, or good work, is good for you and that, as a society, we should support people to get into or closer to the labour market. I think that that is common ground between the previous Government and the current one. As we know, the work capability assessment was designed to focus on a person's capability, rather than their incapacity, as a building block to help them progress, where appropriate, towards work. The switch from incapacity benefit to employment and support allowance was more than just semantics. Although support via Pathways was available before, the introduction of the WCA signalled a determined change to support those who could towards the labour market. The approach seeks to identify three groups of people: those considered capable of work; those who could work at some point with the right support—the work-related activity group; and those who cannot or should not be expected to work. The concept is to make those determinations by reference to application and a range of descriptors with the objective of determining an individual's functional capability. There is nothing in the documents that we have received from the stakeholders that calls into question that fundamental approach; and I doubt whether we will hear it called into question by noble Lords this evening. Indeed, the first independent review of the WCA by Professor Malcolm Harrington concluded that the principles underpinning the new assessment remain valid. He stated his belief that the system is not broken or beyond repair; that, at least, is reassuring. We should acknowledge and welcome the fact that the introduction of WCA has been subject to review—the internal DWP review began in March 2009—and it is the recommendations from that review which, I understand, are reflected in the regulations. Professor Harrington’s independent review, the first required under the Welfare Reform Act 2007, was responded to by the Government in November 2010. It was accepted as a vital contribution to the continuing development of the WCA, and the recommendations were accepted in full. Although most of the recommendations were to do with process and covered customer experience, the Atos assessment, the decision-making process and the appeals process, there were important recommendations concerning descriptors—in particular, the need for further work to review the mental, intellectual and cognitive descriptors and how they are working for those with fluctuating conditions—issues which were raised at the start of the process and which have continued as the ESA has progressed. We support the recommendations, but that raises the question of how they sit alongside the outcome of the internal review, which has caused some of the challenges about which we will hear tonight. The Government's response to Professor Harrington's report indicated that they would await a further report on mental health descriptors in late December and early January. Where does that report rest? Why is it considered appropriate to proceed with the current changes to the descriptors without the benefit of that report? The criticism of the regulations has come from a range of sources, as we have heard from the noble Lord, Lord Kirkwood. They variously cover the points that the review has been carried out too early with limited evidence; that recommendations from the statutory review—Professor Harrington’s review—are still being worked on; and that changes to descriptors will make it more difficult to identify those with limited capability for work, those who should be in the work-related activity component. The noble Lord, Lord Kirkwood, referred to the Social Security Advisory Committee. It recommended that certain changes be postponed, stating: "““The Committee recommends that the Department does not proceed with the remaining proposed changes to the descriptors until these have been reconsidered in the light of the findings of the independent review of the WCA and the experience of the trial of the migration of IB customers to ESA””." Why has the department not taken that path? Mind, and others, has raised concerns about the regulations regarding mental health descriptors. They extend to the simplification of the assessment, reducing the mental function descriptors by a third, from 10 to seven questions. Is that at the expense of comprehensiveness rather than in unison with it? There are deep concerns about how well the WCA descriptors record the impact of mental health issues. The simplification of the descriptors will exacerbate the problem. Assessment of an individual's awareness of hazards will now simply focus on the need for supervision, rather than the significance and frequency of the risk posed. Ability to get about and cope with change will no longer be assessed in terms of frequency, which will impact negatively on people with variable or fluctuating conditions. The loss of the propriety behaviour descriptor means that the assessment fails to capture the significant distress caused to people with depression, anxiety and paranoia by misinterpreting or overreacting to the behaviour of others. The National Autistic Society has expressed similar concerns about reducing the 10 mental health descriptors to seven. It states: "““This reduces opportunities for people to score sufficient points to receive the benefit. Five descriptors which specifically address the needs of people with autism have been reduced to 2. The lower-scoring elements of several descriptors have been removed, and many have been simplified. This makes it much harder to represent the complexity of needs many people with autism experience, and barriers to employment they face, through the assessment””." It has raised many other points. Doubtless, noble Lords will also have read the brief from the Disability Benefits Consortium, referred to by the noble Lord, Lord Kirkwood. It asserts: "““An individual who ‘cannot mount or descend two steps even with the support of a handrail’ could now be classed ‘fit for work’ … Someone unable to stand at a workstation for more than ten minutes could now be deemed ‘fit for work’… The descriptors for turning star headed sink tap have been removed, consequently there is no functional assessment for the ability to turn or rotate ""the hand, despite this representing a form of manual dexterity vital in many workplaces … The changes remove all lower-level descriptors in some categories, for example, there are now no six point descriptors within manual dexterity, making it hard for people with multiple impairments to qualify””." The noble Lord may not be able to deal with each of those points tonight, but those are genuine, practical, real issues raised by people who know. If they are right, that clearly undermines the thrust of the assessment, which we agree that we should be making. We should have common cause in getting the descriptors and the process right. The Government must convince us that they have not jumped the gun on these changes and answer the searching questions raised by the various lobby groups, which will doubtless be raised further tonight. We look forward to receiving the Minister’s reply on these issues. The noble Lord, Lord Kirkwood, has initiated a very important debate, because these issues have run with the WCA and the employment and support allowance from day one. I believe progress is being made and certainly can be made, but there is some way to go yet.