Welfare Reform Bill

Countess of Mar Excerpts

Monday 14th November 2011 Grand Committee

[Baroness Howe of Idlicote]

My Lords, we have all been very moved by the speeches made by our disabled colleagues, particularly that made by my noble friend Lady Campbell, who put it so beautifully clearly. Perhaps one of the reasons is that quite a number of our colleagues in your Lordships’ House are getting older and are beginning to have some form of disability, which makes one a little more aware of the needs. I do not know whether this form of words is necessary but the more that I have listened to the fact that the word “disability” is missing from the description, the more worried I am, not least when you hear how the press is reacting and the effect that that may have.

On listening to noble Lords, I clearly recognised the detailed areas of their special needs. That was useful knowledge on which to play the rest of our approach to this Bill. I hope that the Minister will take back to his colleagues the sort of reasoning that has taken place during this debate. His colleagues are probably engaged in goodness only knows how many other debates around Parliament, but if they had been able to be here I hope that they would have been at least as moved as I was and would have changed their approach. I hope that he will be persuasive in getting them to do just that.

[The Countess of Mar]

My Lords, I, too, support these amendments. I think particularly of people with fluctuating conditions which eventually become so bad that they are housebound, bedridden and almost unable to get out, and of the 25 per cent of people suffering from ME who are in this state. I should say that I am the chairman of Forward-ME. Every day I get letters from people who are terrified of what is going to happen when the PIP is brought in. However, I am grateful to the Minister and to the Deputy Chief Medical Officer at the Department for Work and Pensions for specifically asking for people with ME to be part of the pilot programme for the PIP. But the feedback I am getting is that the people who are examining them have no understanding at all of their illness. We are talking about a personal independence payment, which is the idea the examiners have in their mind, against a disability payment. However, these are severely disabled people—we have heard some very moving speeches from my noble friends and from the noble Baroness, Lady Wilkins—who cannot even get out of their houses. They must have help with their laundry, cleaning and shopping—with everything. To call it a personal independence payment does not help them, I fear, so I strongly support this amendment.

[Lord Addington]

My Lords, I apologise that this is the first time I have spoken on the Bill. Something is occurring here which I have been aware of ever since the Government, of which I am a supporter, came to power. It is a fact that people are worried about what is going on when reading some of the language being used. Much of this anxiety is caused by things like getting rid of regulations, although I suspect that many of them were useless. The disability movement has in effect had a defence in depth of regulation. We have stuck extra regulations on which have given us a sense of security. I must remind the Committee that I am a dyslexic and therefore a disabled person, but not one who I think would be covered under the regulations here. That provides another example of how complicated the world is that we are stepping into. No two people who have spoken in the debate have the same problems.

In effect, the challenge the Minister faces today is to start to calm down these fears. If PIP is going to come in, what is required is a huge campaign to explain what it actually means. On reading the Bill, I do not think we have much to worry about, but the fear that there might be something there that does huge damage. Underclaiming is historically the biggest problem in this area. It means that we end up with on-costs in health, for instance, because people do not claim the right benefits. It is something that has had to be dealt with for a long time. If the Minister can start the process of dialogue, he will be doing himself a favour.

Would changing the words do anything? I suspect not, even if it made us feel better. I suspect that many of the problems we have in this area exist because we have done one or two too many things in Parliament, and, as I have said on other occasions, I take my share of the blame for that. But giving clarification of what is actually going on will help, and this would be a good place to start that process.

--- Later in debate ---

[Lord Freud]

My Lords, I am very sympathetic to that point. The trouble is that when I and my colleagues—and, I am sure, the noble Lord, Lord McKenzie, and the opposite side of the Chamber when it was in power—try to make positive stories, it is terribly hard to get any coverage at all. That is the trouble. The press is very hard to use in this way. I could use some emollient language here. I am genuinely concerned at the difficulties that we have as a department in getting a balanced view. Journalists tend to write unbalanced stories. I am conscious of and very concerned about that. I take it and I will try to get some counterspin, if you like, working. I think you are absolutely right that we are in danger of seeing the position of disabled people undermined by the media coverage and it behoves us to try to get that rebalanced. I accept the commission, if that is what it is, and will try to do something about it.

[The Countess of Mar]

Perhaps the Minister can put out some publicity about the very few people who claim this benefit fraudulently—it is less than 1 per cent, I believe.

[Lord Freud]

My Lords, the real trouble with the benefit is that it has been so loosely applied that it is impossible to take it fraudulently. I exaggerate slightly to make the point but that is the reason. The last time it was looked at in detail—I think it was 2004-05; I am plucking figures slightly from memory—I think there were overpayments of around £630 million and underpayments of around £250 million or £270 million. I am ahead of my team. It was around that figure. It was not because people were being fraudulent, it was just because it was no longer the right rate and you could not tell whether it had not been the right rate the day before or the day after. Fraud is not the issue with the DLA. The issue is the looseness of its application.

[The Countess of Mar]

The press go to town on people who are living in nice bungalows in Spain on their DLA. Yet, the very fact that it is loose is not the fault of the people who have been claiming the benefit but those who are administering it.

[Lord Freud]

My Lords, I cannot agree more. It has not been properly delivered. It has not been a proper gateway. It needs a new benefit and that is what we are trying to introduce.

Let me just get those figures correctly for you— it is £600 million overpayment and £190 million underpayment. I, like the noble Lord, Lord Touhig, am as concerned about the underpayment as the overpayment.

--- Later in debate ---

[Lord Wigley]

If the Minister accepts the figure for those who will lose relatively small sums that are of critical importance to them, and if the services that they have been able to purchase or the benefits in their life that they have been able to obtain by virtue of having that money now have to be found through some other means, has some assessment been made of the additional cost that may be going elsewhere in order to ensure that they do not lose out on aspects of their lives that are critical for their day-to-day existence?

[The Countess of Mar]

My Lords, I think the noble Lord, Lord Newton, put his finger on the button in his first comments. It is people’s fear of what is going to happen when they have a medical examination. Many of them have already had experience of DWP medicals, and from the correspondence I have had they are extremely distressed about what is going to happen to them in the future. It may be that they are dramatising, in which case we would be very pleased to have our minds put at rest, but on the other hand, if we are making this 20 per cent cut in expenses, they are bound to be frightened because these are people at the bottom who are going to be chopped off, and they do not understand how the process in going to happen.

[Baroness Campbell of Surbiton]

My Lords, I, too, support this amendment. In fact, it was down in my name, but when I saw how many amendments I was going to put down I thought I was being too greedy. My question to the Minister is very short. Has he had discussions with those in the Department of Health responsible for the prevention agenda with regard to closing the basic rate? It will have a massive impact on the prevention agenda, which is very much about giving a little bit of support and keeping people independent for a lot longer with a lot less cost for healthcare and social care services.

Welfare Reform Bill

Countess of Mar Excerpts

Tuesday 8th November 2011 Grand Committee

[Lord Freud]

I feel drawn to say, in response to the noble Baroness, that I was very happy with how the amendments were grouped, because it allowed me to deal with a complicated set of issues in their entirety. When amendments are degrouped you very often find that you are arguing one thing at one time and then miss a key part of your argument and have to repeat it. So I would plead with the noble Baroness to accept that at least I was very happy with how it was done and that we got through a very difficult set of issues—I know how difficult they are—in reasonable order.

[The Deputy Chairman of Committees (The Countess of Mar)]

My Lords, if I could offer some guidance, the groupings are informal and noble Lords are perfectly at liberty to decouple amendments if they are not happy.

[Baroness Hollis of Heigham]

The noble Baroness the Deputy Chairman of Committees is absolutely right, but you do have to lead on the amendment group to have that right.

Welfare Reform Bill

Countess of Mar Excerpts

Tuesday 1st November 2011 Grand Committee

[Baroness Hollis of Heigham]

My Lords, could I press the Minister on this? I was struck by his version of what a hardship payment was for and his concern that it should not moderate the effect of sanctions. He thought this was a tightrope to walk. That is not my understanding of what hardship payments are about at all. What hardship payments are about, certainly when dealing with lone parents with children, is to ensure that the sanction does not fall on the innocent—children for example.

[The Deputy Chairman of Committees (The Countess of Mar)]

I am sorry to interrupt the noble Baroness. There is a Division in the House. I suggest that those who have not said they are unable to go downstairs return at 5.14 pm precisely.

Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011

Countess of Mar Excerpts

Tuesday 10th May 2011 Lords Chamber

Moved By

[The Countess of Mar]

That this House regrets that it has been given insufficient information to understand the policy objectives of the Jobseeker’s Allowance (Mandatory Work Activity Scheme) Regulations 2011 (SI 2011/688), how the scheme will work and whether claimants’ prospects of obtaining employment will be improved.

Relevant document: 27th Report from the Merits Committee.

[The Countess of Mar]

My Lords, in moving this Motion I may cover some of the ground to be covered by the noble Lord, Lord Knight of Weymouth, in his Motions. The 27th report of the Merits of Statutory Instruments Committee draws our attention to the fact that:

“Although there is a considerable amount of paper attached to this instrument the information it contains is … vague”.

The committee makes it plain that it has asked for clarification on the regulations from the Department for Work and Pensions and that very little has been forthcoming. The committee points to several inconsistencies between the Explanatory Memorandum and the departmental memorandum to the Social Security Advisory Committee. Like the SSAC before it, the Merits Committee is particularly concerned because,

“the sanction on the individual claimant for failing in any element”,

of the scheme,

“is the loss of 3 months’ benefit”.

It also points to how:

“The degree of flexibility and discretion built into the arrangements causes the Committee to question how it can be delivered with any degree of consistency”.

Noble Lords have always been assured by Ministers that primary legislation lays down the framework and that the detail would be provided in secondary legislation. In this statutory instrument, we have little detail. We are told that the Department for Work and Pensions does not intend to provide detailed guidance on the criteria within the regulations, as it believes the best way to select participants is via adviser discretion. It admits that it has limited evidence for the effectiveness of the four-week placement in mandatory work activity and that that activity is a new scheme. In other words, it is making the rules on the hoof—rules for which there will be no scrutiny and no appeal for the claimants.

I have the greatest sympathy with anyone not versed in legislation who may need to refer to it for a particular purpose. I feel that I almost fell at the first post when I tried to find Section 17A(10) of the Act for the meaning of “jobseeking conditions”, as referred to in the last footnote on page 3 of the statutory instrument. I have a copy of the Jobseekers Act 1995 with a Section 17 but no Section 17A, let alone Section 17A(10). There is no indication of when or under which legislation Section 17A(10) was inserted. I would have thought that I would find Section 17A on the internet, but no such luck. With the help of the wonderful staff in the Printed Paper Office, I was led to Section 1 of the Welfare Reform Act 2009—but still no luck. I found that “jobseeking conditions” means conditions set out in Section 1(2)(a) to (c) of the Jobseekers Act 1995. Why on earth could the footnote not have read just that? I can imagine that a member of the public would be enraged at having to spend an unnecessary £18 for a copy of the Welfare Reform Act in addition to the £7.70 for the Jobseekers Act simply to find the definition that is pivotal to the statutory instrument.

Regulations 4 and 5 are clear in so far as they go. Noble Lords will be aware that I am concerned with a number of charities that represent people with CFS/ME, but may not know that this week is ME Awareness Week. The Department for Work and Pensions seems to be singularly unaware of and indeed determined to ignore the disabling symptoms of this fluctuating condition. It seems odd to me that the World Health Organisation and the Department of Health recognise it as a neurological condition, while the former Chief Medical Officer, Professor Sir Liam Donaldson, told the BBC online on 11 January 2002 that CFS/ME should be classified alongside multiple sclerosis and motor neurone disease. The National Institute for Health and Clinical Excellence recognises it to be as disabling as multiple sclerosis, rheumatoid arthritis, congestive heart failure and other chronic conditions.

I note from a Written Answer that the Department for Work and Pensions refers to chronic fatigue syndrome when my Questions relate to chronic fatigue syndrome/ME. The two are entirely different conditions, defined by different sections of the International Classification of Diseases in ICD-10. It is high time that the department recognised this, for its failure to do so by applying unjustifiably harsh sanctions which seek to force people with CFS/ME back to work before they are ready could be counterproductive, resulting in a deterioration of their health or delaying their recovery.

I have recently been sent correspondence from a person helping claimants with CFS/ME who are being transferred from incapacity benefit to employment and support allowance. She explains that the claimants are first sent a letter, as outlined in Regulation 4 of the statutory instrument, and states:

“This tells them briefly about the start of the process and that they’ll be contacted by ’phone”.

The time period appears to be about two weeks. She says:

“When the claimants get the ’phone call they are read a statement outlining the process. This appears to be read from a script. The claimants are also given the opportunity to ask questions. I'm aware of several claimants who say the statement is lengthy and due to their cognitive problems, they have been unable to remember the content of it. One claimant asked for a written copy of the statement to be sent to her but was told this wasn’t possible as ‘they were doing it this way’ i.e. verbally”.

She says:

“I feel this highlights the inadequacy of the DWP in catering for those with conditions that involve cognitive problems and further underlines just how these problems are being ignored and poorly understood by this Government department”.

She goes on to say that her contacts are from Kent and the Midlands,

“so they cannot say they are dealing with the process differently—my contacts were both read the same statement over the phone”.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)]

My Lords, thank you for giving me the opportunity to clarify the objectives of the mandatory work activity scheme and to explain further how the scheme will operate.

Before I go into that, I want to say that the department takes the concerns raised by this House very seriously. The concerns raised here and by the Merits Committee tell the ministerial team in the department that something has gone wrong. I am aware that this is not the first time in this Session that the department’s instruments have been called to the attention of this House, and we find that very serious. The full ministerial team is in agreement that providing the Merits Committee and the House with all the necessary information is of central importance, and we all regret—I particularly regret—any occasion when the Committee felt it received inadequate information. We are working hard to improve on this. We have arranged for senior officials to meet with the committee’s advisers this week in order to take a serious look at how we are falling down, and they will work with the committee team to ensure that the House is in future supplied with all necessary information. I can assure noble Lords that I am going to make sure that there is a process in the department that makes sure that the right information goes to the committee. This will not continue in this way.

Let me now offer some assurances about this particular instrument. The mandatory work activity scheme represents a new approach. I understand why some noble Lords feel that we should have conducted a pilot before introducing the scheme nationwide. Such an approach may have been the norm in the past, but there has been a change of philosophy in this area. The problem with small, limited pilots is that in the mean time they leave you with a moribund system. Central to the new philosophy of the department is that it is best to provide the freedom to allow initiatives to flourish into success. That is what the structure of the work programme is designed to do. It provides our own staff with the freedom to innovate. Advisers are given greater flexibility to make decisions on what help an individual needs in order to find work. It is one of a range of available support options that can be considered.

The budget is set by a central contracting process, but it will up to Jobcentre Plus to decide whether to use it and in what numbers. It will depend on whether there are claimants in a particular Jobcentre Plus area whose characteristics suggest that they would benefit from this intervention. Contracted providers will not be paid for places we do not use, so there is no incentive to use places that customers do not need. My noble friend Lord Kirkwood’s maths on his calculator is more or less spot on. We have the money for up to 19,000 places costing £8 million, which on the calculation of my team in the Box comes to £421. That is close enough to my noble friend’s answer of £423. How he got that discrepancy suggests that it is obviously a Hewlett Packard calculator.

It is important to recognise that we are not undertaking this work without assessing its place in the wider picture. We intend to learn from how mandatory work activity is used and what impact it has on the customers who are referred to it. I shall come back to precisely how we plan to report to the House on that.

I should also like to take this opportunity to address some of the other concerns that have been raised in the debate. It is vital to recognise that this support was asked for specifically by Jobcentre Plus personal advisers themselves. After all, they are the people best placed to understand what help those struggling to find work really need. During the summer, ministerial colleagues went out, listened and gathered opinions from Jobcentre Plus advisers. The consistent message was that they wanted a tool like this to engage a particular group of people. So the introduction of the mandatory work activity programme has been driven by the grass roots. The programme is aimed at a particular, rather small group of people who have become disengaged and stuck in a rut in their search for work. By getting them involved in mandatory work activity within their local communities, the aim is to give them the confidence they need to approach finding employment proactively as well as the basic disciplines that any employer would expect.

The noble Lord, Lord Rix, was particularly concerned about people with learning disabilities. We aim to replicate all the existing protections in referring people. JCP advisers are not looking for customers in this group. Equally, I shall pick up the concerns of the noble Countess, Lady Mar. Customers in poor health are absolutely not the target group for this scheme, which is aimed at those whose key barriers to work are the disciplines of employment. We know that every customer’s circumstances are different. As much as possible, we are giving discretion to Jobcentre Plus advisers on when to refer customers to mandatory work activity.

Although we are not being prescriptive, we are providing guidance to JCP so that it can provide a framework and achieve continuity of approach across the country. The guidance will indicate the type of characteristics that we expect claimants who benefit from this provision to display. As a department, we are choosing to trust those who have day-to-day experience of working with jobseekers. They are, after all, the people who are asking for greater freedom in how to help customers.

The noble Lord, Lord Rix, was concerned about the complaints procedure. A clear, independent complaints procedure exists through the independent case examiner. If providers are at fault, a hefty fine will be attached. The noble Countess, Lady Mar, expressed concern about trickery and quoted from an article in the Guardian. I can assure her that there are no targets in place to deliver sanctions, either in JCP or among providers. The noble Lord, Lord Knight, was concerned about costs. We have taken on board the recommendation of the SSAC that we pay childcare costs. Lack of suitable childcare is good cause for failing to attend. Therefore, there would be no sanction. We also pay transport costs under the programme. More detailed guidance will be available to JCP advisers. The guidance will be internal for them, so it would not make much sense to publish it.

We have now completed the procurement process and are able to discuss the suggestions of those who participate in the scheme. That may be helpful in clarifying how mandatory work activity will help customers as they look for employment. The noble Lord, Lord Knight, and the noble Baroness, Lady Lister, said that research shows that workfare is not effective. We must make it clear that this is not workfare; it is a short, supportive and personalised programme. That is why flexibility is built into it. The noble Baroness said that that can be looked at in two ways, but the intention here, given the brevity of the programme, is to be supportive.

We have not asked contracted providers to give us details of every placement, but, as an example, several organisations have suggested that they will place people with charities that renovate old furniture to be used in social housing or by low-income families. The noble Baroness, Lady Thomas of Winchester, spoke of benefiting the community. Examples of placements include improving local green spaces, improving community cohesion by working with excluded groups, maintaining cultural spaces and helping the development of social enterprises. Our aim is not only to provide visible benefit for local communities but also to give people the chance to develop skills that they can take forward when looking for work in the future. Most importantly, they will be expected to turn up for work every day for four weeks. They will be expected to work with their colleagues and to complete tasks that they have been set in a timely way.

In response to the concerns of the noble Baroness, Lady Lister, about placement monitoring, we will monitor placements through direct relationships with providers. It is clear in the contracts that placements must not replace current or future employees. We are seeking in this programme to instil essential work disciplines. Research with employers has consistently shown that they value such characteristics highly. A short experience of the workplace can help that development.

My noble friends Lady Thomas and Lord Kirkwood were concerned that there was no indication about how we would operate good cause. We will explicitly include good cause in the guidance in a similar way to that in other regulations. The noble Lord, Lord Knight, was concerned about there being no appeal for mandation. The decision to refer is an administrative decision subject to judicial review if it is unreasonable.

I thank noble Lords for allowing me this opportunity to try to explain these regulations more than we seem to have done to the Merits Committee. I hope that I provided some enlightenment. I recognise that some noble Lords hold deep concerns and I respect and acknowledge those. But in response to those concerns, I assure noble Lords that as well as monitoring the management information generated by the scheme from day one, we will be conducting an impact assessment in November 2012 to assess how mandatory work activity has changed outcomes for individuals.

On top of that, we have set aside £150,000 to conduct external independent research in February 2012 to learn about the experience that customers have while on the scheme, and the difference that it makes to the approach that customers take on their job searches. That will report in summer 2012. Any decisions about the future of the scheme will be based on the outcome of those reports. In order to ensure that the House has the opportunity for further scrutiny of any future changes, I commit that these reports will be laid before the House and noble Lords will be alerted that that has occurred allowing for further debate at that time. I hope that those offers are satisfactory and I urge noble Lords not to press their Motions.

[The Countess of Mar]

My Lords, I am grateful to the noble Lord, Lord Freud, for going to so much trouble, and I have no doubt about his sincerity. I doubt that any noble Lord in this House is completely against these regulations. We agree that some people need to be offered the discipline of work. But we are not happy about the sanctions and the noble Lord has made no effort to justify these draconian sanctions—they are very severe.

I am very grateful to all noble Lords who have taken part. I will not go through their speeches individually because I know that everybody is hungry and will want to go to dinner. I am not satisfied despite the Minister's efforts that he has filled in all the gaps. We have a statutory instrument before us that is not clear and I wish to test the feeling of the House.

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

Countess of Mar Excerpts

Wednesday 16th March 2011 Lords Chamber

[Baroness Thomas of Winchester]

My Lords, the DWP is in the middle of doing a very large jig-saw. The picture on the box is of a lot of people scurrying to work. In one corner older people are still going out to work, and in another corner people with disabilities are going about their business with the replacement DLA. But at the moment the pieces of the jig-saw are all jumbled up on the table, perhaps with the Minister frantically trying to find the straight edges. Are these regulations the pieces with the straight edges or not? I am very grateful to my noble friend Lord Kirkwood for giving us the opportunity to discuss these regulations because there are some disturbingly divergent views, as we have heard most movingly this evening.

The Merits Committee has said that the regulations may imperfectly achieve their policy objective, which is not something that it says at all frequently. In particular, it encourages the House to seek further information from the DWP on the rationale for putting these regulations forward now. It will not be disappointed, as all noble Lords have raised this matter. This is a recurring theme in all the evidence that we have been sent, from the CAB to the disability benefits consortium.

There is puzzlement that the DWP wants to bring in these changes now for several reasons. The principal reasons are: that the data from the migration trials from incapacity benefit in Aberdeen and Burnley have not yet been evaluated; that we are expecting more changes to the descriptors and to the work capability assessment as a whole once Professor Harrington has published his second-year review; and that the bar is thought by some groups to have been raised so high that there is now hardly any difference between those in the employment group of ESA, which comprises the limited capability for work people, and the support group, which is the limited capability for work-related activity people.

The Social Security Advisory Committee is more forthright because looking at DWP regulations and commenting on them is its job. It says, as we have heard, that apart from a few changes which it welcomes, the department should not proceed with the remaining proposed changes to the descriptors in the WCA until they have been reconsidered in the light of the findings of the Harrington report into the WCA and the migration trial of IB claimants. Why is it that the DWP believes that the changes to many of the descriptors are improvements, when the disability and other lobby groups say, as we have heard this evening, the exact opposite; namely, that the changes represent a tightening of the screw, making it harder for claimants to claim ESA?

I believe that the answer may lie in the different interpretations of the purpose of the work capability assessment. It was set up to replace the personal capability assessment as a test of a person’s capability for work rather than their incapacity. As Professor Harrington says in his review,

“the WCA was designed to be a first positive step towards work for most people”.

However, he also says that it is not working as well as it should, which is borne out by the fact that 40 per cent of appeals against a decision that an individual is capable of work are currently upheld. This surely shows that something is seriously wrong with the assessment. In particular, Professor Harrington says that there are clear and consistent criticisms of the whole system and much negativity surrounding the process.

The wider interpretation of the purpose of the WCA is not just whether it looks at someone’s theoretical capability of work but whether it works in the real world of work. This is where the Social Security Advisory Committee report and the lobby groups diverge quite strongly from the DWP. The SSAC tries to be fair. I think that it is worth quoting two sentences from the report in full, which states:

“The Committee recognises that the assessment of capability for work is a contentious and emotive issue and has always advocated a positive approach to the assessment of capability that looks at what the individual is able to do and their adaptation to their health condition or disability, rather than focusing solely on what a health condition or disability prevents the individual from doing. However, the Committee also recognises the complexity of many individual cases and the significance of the factors that may determine capability in the real world but which cannot be easily measured by a test that scores functional capability”.

I would contend that this is why there are such divergent views between the SSAC, the Merits Committee and the lobby groups on one side and the DWP on the other. The DWP is obviously not prepared to wait until the migration trials have been evaluated to change the descriptors or for Professor Harrington’s task group to report on the mental, intellectual and cognitive descriptors, which will report to the Minister later this year.

However, there is a way forward, bearing in mind that the recommendations from Professor Harrington’s first report have been accepted in full by the Minister—here I echo my noble friend Lord Kirkwood. There are five recommendations, which can be summarised as follows: that more empathy should be built into the process, with JCP managing and supporting the claimant; that the transparency of the Atos assessment should be improved; that there should be better understanding by Atos of mental disabilities; that decision-makers should be better empowered; and that there should be better communication of feedback between Jobcentre Plus, Atos and the First-tier Tribunal to improve the quality of decision-making on all sides.

Professor Harrington’s full report is very instructive on all these matters. For example, he says that the language and logic used in the LiMA computer system,

“is not very intuitive or accessible to claimants who receive their final report”.

He goes on to say:

“The Atos Training and Development handbook encourages”,

healthcare professionals,

“to use open questioning and not to rely on the LiMA system”.

However, in practice this hardly ever happens. He also sheds light on the fact that claimants are expecting a medical examination, which looks at their illness or impairment, rather than an assessment of their functional capability. It does not help when the Atos healthcare professional conducting the assessment does not look at the claimant at all, but rather at the screen, nor does it help when the healthcare professional has poor knowledge of some of the less common health conditions, such as Parkinson's disease. Another key part of Professor Harrington's report was that the Jobcentre Plus decision-makers rarely make a decision that disagrees with the evidence provided by the Atos assessment because they lack the confidence to do so. In other words, the decision-makers are often just decision stampers.

The DWP says it is working to implement these recommendations as quickly as possible. I think the whole House would like to know how the department is getting on with this implementation, because this is not just an extremely important matter but, I believe, the key to the whole reputation of the work capability assessment when the migration from incapacity benefit is rolled out nationwide. Therefore, I would be grateful if the Minister would tell us what steps are being taken to implement the current Harrington proposals.

The Merits Committee report is, as usual, an absolute model of clarity. It states, as has been stated already today, why it is so important that the work capability assessment is got right. Those who are deemed to be fit for work and are on JSA will receive £65.45 a week, those who are found to have limited capability for work, and therefore on the work-related activity group of ESA, will receive up to £91.40, while those in the support group of ESA will receive up to £96.85. The difference in the levels is substantial.

Before I finish, I unequivocally welcome the change in Regulation 35 which allows claimants awaiting chemotherapy to be placed in the support group. However, in general, it is difficult not to agree with the SSAC's view that, in removing some of the subtleties in the descriptors, about which we have heard so graphically today,

“the test's relevance to the real world has not been enhanced”.

[The Countess of Mar]

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?

--- Later in debate ---

This Government are committed to continuously improving the work capability assessment to ensure that it is as fair and as accurate as possible. I reassure the noble Lord, Lord Kirkwood, that we are also committed to working closely with disability groups in that process. I also reassure the noble Lord, Lord Low, who made the same point. The regulations that we are debating today are the first step on that continuous journey.

[The Countess of Mar]

The noble Lord said that the department worked with disability groups. Why have those groups unanimously dissociated themselves from the internal report?

[Lord Freud]

My Lords, I am pleased to answer that question. I am rather surprised by the actions of the groups. I have seen a lot of correspondence and a lot of internal work. There was very full engagement by both sides, and a lot of correspondence about fine-tuning the regulations. At the end of the process there seemed to be real agreement. Therefore I am genuinely surprised that, after the passage of some months, the consensus seems to have been significantly eroded. Income elements may have come to the fore, whereas the technical analysis that was the subject of the interplay between the department and the groups was perhaps easier to get to grips with.

I will go back to describing the system. The wider system that we inherited, after the measures that the internal reviews described, contained flaws that we as a new Government have looked to put right as quickly as possible. In June we launched the first of the five annual independent reviews of the work capability assessment—the first of the reviews that this House legislated for. It was carried out by Professor Malcolm Harrington, a highly respected occupational physician. He reported last November. He did not consider that the work capability assessment was broken but felt that it was not working as well as it should and made a series of recommendations to improve its fairness and effectiveness. We have fully endorsed his review, as the noble Baroness, Lady Thomas, pointed out, and we have committed to implementing his recommendations as quickly as possible.

The first key element of those recommendations—I am borrowing, again, from the description of the noble Baroness, Lady Thomas—is that we empower Jobcentre Plus decision-makers to make the right decision. They will have clear responsibility for the decisions they make and will be given the support that they need to ensure that those decisions are independent and considered. I hope that that is one of the reassurances for which the noble Lord, Lord Kirkwood, was looking.

The second recommendation is to ensure that individuals are treated with compassion by clearly explaining everything to them, helping them to fully understand the process they will go through and ensuring that they know that they can provide additional evidence, including medical evidence, for consideration at any time. I hope that that is the second of the reassurances for which the noble Lord, Lord Kirkwood, was looking.

The third major change is to improve the transparency of the Atos assessment by ensuring the audio recording of assessments in the Atos pilot. The other element involving the Atos process is that we will account for the particular difficulties in assessing mental health conditions by ensuring that Atos employs “mental health champions” at every centre.

Nearly all these changes will be in place for the start of the reassessment, with the remainder completed in time for the summer. We have also appointed Professor Harrington to conduct the second independent review. He will now examine the assessment in more detail, particularly focusing on mental health descriptors and fluctuating conditions.

I shall now respond to the questions of the noble Baroness, Lady Finlay, on fluctuating conditions. The fact that conditions fluctuate is now embedded in the descriptors. We just want to make sure in this next piece of work that we get that absolutely right. We look forward to Professor Harrington’s recommendations following the second review in due course.

The regulations before us today are part of this improvement process. They come from the internal review undertaken and fully supported by the previous Government. That review suggested a number of changes to clarify and improve the technical descriptors; noble Lords have made these points so I will go through them quickly. The changes include placing individuals awaiting or between courses of chemotherapy in the support group; expanding the support group to cover people with certain communication problems and severe disability due to mental health conditions; greater provision for individuals who are in residential rehabilitation due to drug or alcohol misuse; ensuring the descriptors take account of someone’s adaptation to a condition or disability; and simplifying the language of the descriptors to ensure fair, consistent and transparent applications. These changes will improve the work capability assessment. They will increase the number of people with severe disabilities who are provided with unconditional support in the support group. They will ensure that we do not deny employment support to individuals who, with our help, can get back to work.

The internal review consulted a range of experts and groups and, as I described just now, tried to reach consensus. Significant concerns were expressed by the groups around the descriptors. I will not go into those because I am short of time, but I can respond to the noble Countess, Lady Mar, on fluctuating conditions. It must be possible for all the descriptors to be completed reliably, repeatedly and safely, otherwise the individual is considered unable to complete the activity.

The Department for Work and Pensions has undertaken rigorous testing of these changes to understand their effects. The department modelled the impact of the changes on data from almost 60,000 assessments, and a panel of experts was brought together to examine the changes in significant detail. Where any issues were identified during this process, further refinements were made to the descriptors. From this analysis we expect the changes to increase the number of new claimants who are put in the support group, specifically, those who are awaiting or are between courses of chemotherapy, and some whose limited capability relates to certain mental functions and communication difficulties.

I have run out of time, but I hope that the House will indulge me for two more minutes as this is really important. We are committed to the principle of continuous review and refinement of the work capability assessment. As part of that principle, we have reviewed in detail the working of the work capability assessment and consulted in depth with specialist disability groups to improve the assessment. The addendum to the original report shows how far such concerns were taken on board in these regulations. We are committed to taking Professor Harrington’s review to improve the sensitivity of the process. Of the 17 recommendations that he made, we will have 15 in place in time for April and the other two in a couple of months. I hope that that is a final reassurance for the noble Lord, Lord Kirkwood, and the noble Countess, Lady Mar.

The changes that we are making in the regulations will improve the work capability assessment. They will expand the support group to cover people with severe disability due to mental health conditions and communication problems. They will ensure that the descriptors take account of someone’s adaptation to a condition or disability and accepting these regulations means that we can make these important improvements now. We remain committed to the principle of continuous improvement to the work capability assessment. I trust that the noble Lord, Lord Kirkwood, will feel able to withdraw his Prayer to Annul these important regulations.