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

My Lords, I am very pleased to follow the noble Baroness, Lady Browning. I, too, will begin by declaring a personal interest. My 38 year-old son, who has a learning disability, was well described by the noble Baroness towards the end of her speech. He is always being assessed for what he cannot do and not for what he can do, which is incredibly demoralising for him. We his family spend our time trying to help him succeed and he would really like a job. Some years ago, when I was consulted as president of the Royal College of Psychiatrists on the development of a work capability test, I suggested that the focus should be on capability, not lack of capability, from the point of view of the person being assessed. Although this is called a work capability assessment, it is an assessment of incapability. I understand that, as my son is in receipt of severe disablement allowance, he may be required to undergo a work capability assessment. I tried out the online work capability self-assessment to see how he would fare. I will not go into the details but, of the three possible outcomes that we have heard about, he fell into the third category and would not be required, according to my assessment, to undertake any work-related activity. Perhaps that is a relief to me, in that his finances might not change, but I am sure that it would be a huge disappointment to him if that was the case. So far that might be fine, except that the assessor may come to a different decision, in part perhaps because of my son’s lack of insight or understanding of his difficulties. He might then have to undergo an appeal and not everyone has the stomach for, or the capability for, an appeal. My reaction to trying out the test was that there is some sensitivity in the mental, intellectual and cognitive descriptors but probably insufficient sensitivity in the questions which relate to the type of complex difficulties that my son faces in his wish to be part of the workforce. They are difficulties which would require focused and sustained support to enable him to obtain work-related activity. The last thing that I or any parent in my position wants is for my son to fail yet another assessment, especially one which emphasises what he cannot do. Another concern is that, if the assessment finds that he is capable, he is then given insufficient support, which would do terrible things to his self-worth and self-esteem. I question whether this assessment has been adequately road-tested and would want to avoid even one disabled person and his or her family having to face unnecessary appeals or loss of income through being unwilling to face yet another appeal. Even participating in the process of this assessment could be detrimental to the person’s mental heath. My noble friend Lord Rix shares my concerns and has asked me to express his support to the noble Lord, Lord Kirkwood, today and to give his apologies as he is unable to contribute to this debate owing to family illness. He believes that many people with a learning disability will be denied vital support to help get them into work if they are not found eligible for employment and support allowance. That mirrors my concern. My noble friend believes that the crude indicators used in the regulations must be changed to more accurately reflect an individual’s capabilities. For example, my noble friend is deeply concerned about the merging of the three descriptors—““memory and concentration””, ““execution of tasks”” and ““initiating and sustaining personal action””—into one. They have been replaced with just one descriptor, ““Initiating and completing personal action””. According to the regulations, this, "““means planning, organisation, problem solving, prioritising or switching tasks." The removal of the descriptor titled ““execution of tasks”” means that the time taken to complete a task will not be included as part of the assessment. This is particularly relevant to people with a learning disability and is likely to be a significant barrier to employment. The current system already fails to meet the needs of people with a learning disability. My noble friend Lord Rix suggests that these regulations do not effectively assess limited capability for work, which means that the additional barriers and support needs of people with a learning disability are not being fully recognised in the assessment. With less than 7 per cent of people with a learning disability who are known to social services being in any form of paid employment, the barriers to finding a job, combined with deep-rooted prejudice and discrimination, are already significant. Is it too much to ask that a coalition Government who claim to put fairness at the heart of their decisions should seek to tackle some of these barriers instead of perhaps making them even more difficult to overcome? For this reason alone, I and my noble friend Lord Rix, call for these regulations to be annulled.