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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 grateful to the noble Lord, Lord Kirkwood, for tabling this prayer today, and I echo his core concerns. I declare my interest as chairman of Forward-ME and that one member of Forward-ME is a member of Professor Harrington's task group looking at fluctuating conditions. There has always been a problem with the descriptors for the work capability assessment, particularly for people with mental illnesses and for those with what are termed ““fluctuating conditions””. During the progress of the Welfare Reform Bill four years ago, I raised concerns about the ability of Atos medical staff to discern the difficulties encountered by people with ME/CFS when, on the day of the assessment—which is not, as some claimants think, a medical examination—those being assessed might have been able to perform a number of tasks on a one-off basis but they were frequently unable to repeat the tasks on a consistent basis. There seemed to be no room for detailing pain, muscle weakness, fatigue and other disabling symptoms that occur intermittently and often severely. As a result, the assessor has awarded very few points and the decision-maker has then considered them fit for work. In every case that I have encountered, people with ME/CFS who have appealed to the medical tribunal have succeeded in their appeals and their benefits have been reinstated. When Professor Harrington published his An Independent Review of the Work Capability Assessment last November, the hopes of ME/CFS sufferers were raised. Other noble Lords have quoted from his report, and I am sure that the Minister knows it off by heart, so I will not repeat it all. The Secretary of State for the Department for Work and Pensions, as others have said, accepted all of Professor Harrington's recommendations on behalf of the Government. Under ““A programme for work for year two”” in that report, Professor Harrington wrote: "““This programme focuses on: the descriptors, particularly in assessing fluctuating conditions””." He had already set up a task group to look at mental, intellectual and cognitive descriptors, and I am aware that that group has reported to him. In the new year the task group to review the descriptors for fluctuating conditions started work. They are due to report to Professor Harrington in April this year. I understand that the mental conditions report will be published in the summer and that for fluctuating conditions in the autumn. I am aware that the internal review of the operation of the regulations was required by statute. I am also aware that all of the disability organisations involved disowned the report, which they say was flawed. They rejected the recommendations because of, among other things, the negative effect that they would have on disabled people and their families. As other noble Lords have mentioned, the Social Security Advisory Committee was unhappy with the part of the regulations that relate to the descriptors. It recommended that they be deferred until Professor Harrington's independent review of the WCA was complete and the evidence of the outcome of the trial of migration of incapacity benefit claimants to employment support allowance or jobseeker’s allowance was available. As we have heard, the House of Lords Merits of Statutory Instruments Committee accepted that the internal review found that the performance of the WCA was not working satisfactorily and it commended the DWP for wanting to revise it. However, the committee also highlighted some of the flaws in the current statutory instrument. These have already been discussed. Like the noble Lord, Lord Kirkwood, and the noble Baroness, Lady Thomas of Winchester, I am pleased that the regulation that applies to claimants undergoing or likely to undergo chemotherapy is to be amended, as well as that which applies to drug or alcohol rehabilitation claimants. However, in the light of the conclusions of several reports and the views of a great many experts in mental health and fluctuating illnesses, and the fact that Professor Harrington has been asked to review the descriptors for both these conditions and will be reporting on both by the autumn, I cannot understand why the Government insist on making changes which all the experts, except the DWP, regard as draconian and premature. We keep hearing about the Prime Minister’s ambition that we should all be happy, and that any government measures should include a happiness score. Has the Minister measured the happiness of the thousands of claimants who are terrified that their benefits are going to be severely reduced, who will go through months filled with anxiety and apprehension as they wait in an ever-lengthening queue to appeal to a first-tier tribunal, or who become totally demoralised because they are forced to apply for jobs knowing that no employer will take them on? Has he calculated the cost of the increased financial burden that will fall on the Department for Constitutional Affairs, which will have to cope with the anticipated increase in the number of appeals following decisions that are likely to be seen as unreasonable? In order to improve the fairness and effectiveness of the WCA, Professor Harrington recommended building empathy into the process, better training for decision makers, accounting for the particular difficulties in assessing mental, intellectual and cognitive impairments, and empowering and investing in decision makers so that they are able to take the right decision. Would the Minister kindly tell the House whether these recommendations have been implemented? How are decision makers to come to the ““right decision”” if they are not given all the information because of the limitations of the descriptors to be used according to these regulations? Are they free to ignore the Atos report if the claimant’s statement and any accompanying medical evidence conflicts directly with the findings of the Atos doctor? I am particularly concerned about people with ME/CFS who have frequently been denigrated and who feel defeated by a system that refuses to recognise their illness. The additional stress these regulations will impose on them will not help to improve their condition. Like many others, I am deeply unhappy about these changes. They are going to prove hugely costly, both financially and emotionally, to claimants and I suspect to the DCA, but then that is another department, is it not? Why can the DWP not wait until Professor Harrington reports later this year? Why the urgency?