'(1) The Secretary of State shall require the Office of Disability Issues to publish an annual report on the operation of the assessment for limited capability for work under section 8 of this Act.
(2) In preparing its report the Office of Disability Issues shall be required to consult
(a) the Commission for Equality and Human Rights, and
(b) such other organisations as the Secretary of State shall by regulation determine.'—
Brought up, and read the First time.
With this it will be convenient to discuss the following amendments:
No. 71, in clause 17, page 14, line 44, at end insert—
'(1A) For the purpose of subsection 1, a person would not be disqualified on the grounds of failing to take medication presented by such persons as the Secretary of State may by regulation define.'.
No. 98, in schedule 2, page 54, line 12, at end insert—
'( ) for a person to be treated as having a limited capability for work where it has been decided that he does not have a limited capability for work but he is appealing against that decision.'.
Government amendment No. 18
No. 99, page 55, line 39, at end insert—
'( ) for a person to be treated as having a limited capability for work-related activity where it has been decided that he does not have a limited capability for work-related activity but he is appealing against that decision.'.
Government amendments Nos. 26 and 47.
I am pleased to be here to move new clause 3, which relates to the personal capability assessment for limited capability for work. This matter was discussed in Committee, but some of the outstanding issues are of sufficient importance to be raised again at this stage of the Bill.
New clause 3, which I am pleased to say also has the support of other parties, proposes an annual report to Parliament on the operation of the personal capability assessment. It would enable monitoring, testing and independent evaluation, all of which are sorely needed in relation to the revised personal capability assessment. I am sure that all hon. Members would agree that revisions to the assessment for entitlement to incapacity benefit—or employment and support allowance, as it seems likely to become—are sorely needed.
It is fair to observe that quite a lot of good work has been done in the stakeholder groups and other groups that are making recommendations on the way in which the test should be changed, particularly to enable greater attention to be paid to the way in which it meets the needs of people with mental health problems or learning disabilities. In response to the recommendations that those groups have put forward, I would say, "So far, so good." But—and it is a big "but", as the Minister will not be surprised to hear—I have real concerns about the testing process that has been undertaken so far.
Those who served on the Committee will remember that we had a substantial debate on the merits or otherwise of having independent involvement in the evaluation process for the revised personal capability assessment. The Minister contended at that stage that all that was needed was a series of dummy runs, as the Department was proposing. This would effectively involve running the new test alongside the old test, and observing the outcome. However, the reports that I have seen on the outcome of the first dummy runs are very worrying, which is why I have tabled the new clause to ensure that there will be a regular report to the House on the way in which the tests for deciding entitlement to benefit are operating.
My first worry is that the process under which the dummy runs are being carried out has been shrouded in secrecy. I am told that a report has been made available to some of the groups involved in advising on the revision to the personal capability assessment. I tabled a parliamentary question before the Christmas recess asking the Minister to publish that report but, as far as I am aware, it has not been published. A copy has certainly not been made available to me.
Secondly, the testing has been carried out internally by the Department for Work and Pensions and the contractor responsible for undertaking the assessment, Atos Origin, without any independent assessment or assistance whatever.
It also remains a matter of concern that details of the Logic Integrated Medical Assessment—the computer program backing all this up—have not been made available to independent groups, and nor have details of the logic within the system whereby the answer to one question prompts the medical assessor to ask other questions. Full details of the report on the dummy runs and LIMA should be published. Questions of commercial confidentiality have been raised, which implies that perhaps those details cannot be published. My understanding, however, is that the copyright for the LIMA program is owned by the Department for Work and Pensions; it is not the private property of the company that carries out the assessments. Perhaps the Minister will correct me on that. Given the dramatic impact of the questions and the operation of the computer program on benefit claimants, I can see no barrier to making those details available to the House.
It is of real concern that the evaluation of the dummy runs seems to be the main evidence that will inform the draft regulations, which we were told would be made available to the other place when it starts consideration of the Bill. In that context, it is important to place on record the concerns put to me by outside groups about the way in which the dummy runs have been carried out. As I understand it, fewer than 100 claimants were tested, which is a very selective and not necessarily representative sample. It is therefore hard to make like-for-like comparisons. Importantly, the process was not followed right through to the appeals stage. All Members will know from their constituency casework that the high number of appeals against personal capability assessments for incapacity benefit was one of the main reasons for the revision of the test. Some 50 per cent. of appeals against decisions on the personal capability assessment are successful. Unless one follows the new assessment process through to the appeals stage, to try to understand whether appeals against decisions made under it are likely to be successful, it will be hard to judge whether the new assessment process is better or worse than the old one.
Is not the period of transition the most dangerous time for the vulnerable people about whom we are talking? Will we not need some interim review of the new assessment process long before a year or more—as the new clause suggests—is up? If this is such a comprehensive reform, how will we deal with it quickly if it starts to go wrong?
The right hon. Gentleman makes an important point. Two things need to happen. First, a much more comprehensive assessment of the revised PCA is needed before draft regulations to put it into practice are brought forward. That needs to involve independent outside organisations such as disability lobby groups and others that have had an advisory role.
I am grateful for that intervention— [Interruption.] I think that the answer to the hon. Gentleman is yes, as the Minister has pointed out from a sedentary position. The import of that is that the Office for Disability Issues, which has been established in the Cabinet Office to ensure that the interests of disabled people—
I am grateful for the intervention, but in that case it is possible that the Office for Disability Issues is getting too close to the DWP. Nevertheless, it has a role in ensuring that disability issues are dealt with in a joined-up way throughout Government, which is why I suggest that it should be required to provide an annual report.
Let me take up the second point made by Mr. Redwood. We shall need to get the assessment right in the first place, but we shall then need an ongoing process of reassessment, re-evaluation and reporting to ensure that it continues to work. We must make certain that the vulnerable people who, in many cases, are subjected to assessments continue to be discussed in the House, and are not left with what may turn out to be a thoroughly inadequate process.
The hon. Gentleman will not be surprised to learn that I agree very much with what he is saying. Is it not also important for the assessment to cover any anomalies or disparities in either the regional or the sectoral treatment of persons subjected to the assessment, given the possibility that different regions or groups of examining medical officers may take different views and may also have blind spots on particular kinds of disability?
The hon. Gentleman makes an important point. Regional disparities can arise in the wider debate about incapacity benefit for a number of reasons, and indeed we see regional concentrations of claimants in the statistics. I am sure that Members in all parts of the House will have observed variations even between individual doctors. I suppose that that is largely a management issue for the company that administers the assessment, but incorporating it in an annual report to Parliament would be a vital way of enabling us all to keep an eye on it.
Is the hon. Gentleman aware of a report from Citizens Advice which draws attention to the difficulties already being encountered? One case involves a woman with myalgic encephalomyelitis. She was given only seven points at a medical examination, but the doctor himself advised her to appeal, and on appeal she was given 33 points. The difficulty appeared to lie in the computer system's inability to take account of variations from the standard. Should not the review look into that so that we can ensure that the computer program reflects the wide range of disabilities that exist?
The hon. Gentleman rightly refers to problems that have been identified in the existing system. In fairness to the DWP, I should say that its work, particularly in relation to some of those mental health and neurological issues, has made progress in terms of how fine-grained the assessment is capable of being. Nevertheless, while it is all very well for us to look at the words in the draft regulations—the 45 descriptors and so on—unless there has been proper and rigorous testing it will be impossible to know whether the new arrangement will work better or less well in practice than the current system, and that is the burden of the new clause.
Let me return briefly to the question of the dummy runs that have been carried out so far. It would be useful if the Minister could give further details of the outcomes. I understand that while the new assessment would have given more claimants with mental health problems entitlement to benefit, on the basis of the dummy runs it would also have meant that many of those currently entitled to benefit owing to physical disabilities would no longer have been entitled to it.
What does the hon. Gentleman think of the fact that the rise in the number of people who will be able to claim after passing the mental health descriptor is matched by a commensurate rise in the number who do not pass because they have not satisfied the physical descriptor test? Does he think it a rather odd coincidence?
The way in which the Government have described their intentions in relation to the revision of the personal capability assessment does not suggest that they wish an increase in the number claims for one reason to be matched by an equal fall in claims for another reason. It may well be a coincidence, and it may well mean that further work must be done to ensure that the test covers all possible reasons for claims. That is another reason why much more detailed scrutiny is needed, along with independent evaluation—not just dummy runs conducted by the company that is contracted to carry out the test, which strikes me as thoroughly inadequate. If we proceed on that basis, it will not lead to the outcome that I hope that all Members wish for. We need a much more detailed evaluation of the assessment, plus ongoing independent evaluation. If the new clause is agreed to by the Government—which is, perhaps, unlikely—or supported by Members, that will also allow there to be much more detail of how LIMA, the computer program behind the assessment, works in practice. That will be made publicly available, which will be of particular interest to lobby groups that are expert in dealing with certain conditions or impairments.
I hope that Members will support the new clause, and if the Minister is unable to provide the reassurances that we think are necessary on what are important points, we will seek to press it to a Division.
The new clause is not particularly onerous. It will not cost the taxpayer any more, but it goes to the heart of the Government's commitment to make sure that the new employment and support allowance succeeds where incapacity benefit has failed. The solution to any problem must start simply with a correct diagnosis of that problem. For incapacity benefit and the new employment and support allowance, the crucial gateway is the personal capability assessment. There are, however, problems with that gateway, and they have produced the major issues in respect of incapacity benefit.
The new clause simply requires the Government to publish an annual report on how that gateway is working, and to do so following consultation with key organisations such as the new Commission for Equality and Human Rights, which it is hoped will be as able an advocate of the concerns of disabled people as its predecessor body, the Disability Rights Commission.
Why is this subject so important? Mistakes in how the gateway works cause enormous distress and cost the taxpayer huge sums of money. In 2005, 50 per cent. of appeals against incapacity benefit decisions were successful; that is an enormously high rate, and should be a real concern to the Government.
Two examples given by the Citizens Advice illustrate that point. In one, a client with a severe skin condition lost incapacity benefit following a personal capability assessment that which awarded him five points, but at his appeal five months later he qualified for 16 points, although he then immediately received notice of another PCA medical examination. In another example, a woman with ME—myalgic encephalomyelitis—was given only seven points at a medical examination, but the doctor who carried it out advised her to appeal, saying that the computer would not allow him to award more; the client received 33 points at appeal. To borrow words that some Members might be familiar with from Christmas viewing of "Little Britain" episodes, "the computer says no" and people lose their benefit only to be re-awarded it later at great cost to the taxpayer as well as great personal distress.
I am pleased that my hon. Friend raises the matter of assessments and what might be termed the 50 per cent. failure rate on incapacity benefit. Does he share my greatest concern that those with mental health challenges—in particular depression and bipolar depression—who are already undergoing enormous amounts of stress that is partially debilitating will be caused even greater stress if the facts and evidence do not come out, and if personal capability assessments are not reviewed on a regular basis to ensure that they are better?
I am grateful to my hon. Friend for those comments, and with his usual foresight he makes some of the points that I was going to make. He is correct that getting the gateway right is most important in dealing with people with mental health challenges—a subject that he takes great interest in and on which he has campaigned a great deal—and with those with learning disabilities.
A second reason why it is so important to get the gateway right is that there can be no confidence in a new benefit if there is no confidence in the assessment process through which the benefit is awarded. That confidence is sorely lacking in respect of incapacity benefit at the moment. Why? First, it is because "limited capability for work" is defined as an essentially medical process. Many people would like to broaden it to include not just the responsibilities of disabled people to seek work when they are capable, but the responsibilities of society as a whole, so that it can play its part in including those people in the labour market.
The elimination of prejudice—seen, for example, in the fact that 38 per cent. of employers are unwilling to employ a disabled person, which rises to 63 per cent. in respect of people with a history of mental illness—is a critical factor, as such prejudice limits people's capability to work. It has to be said that it is difficult to work out how it could be measured in an assessment process, but the new clause would at least allow that debate and might allow the assessment process to adapt to meet the challenges posed not by a person's impairment, but by the obstacles thrown in his or her path by a society still coming to terms with what it means to include disabled people in the mainstream.
Another reason for concern about the way in which the personal capability assessment has operated historically is its ability to deal with fluctuating conditions such as bipolar disorder, which my hon. Friend Adam Afriyie mentioned. In a seminar on benefit reform that I organised last year, one of the participants who had bipolar disorder explained what happened when she went for her assessment. It is a fluctuating condition and she felt fine on the day that she had her PCA, but because she was worried that her assessor would not understand what a fluctuating condition was, she felt obliged, in her words, to "ham up" her condition to ensure that she secured the assessment result that she needed.
A widespread concern about the current PCA process is that it does not adequately recognise not only fluctuating conditions but hidden disabilities such as autism and other learning disabilities. The National Autistic Society says that 40 per cent. of GPs do not have enough information to make informed decisions relating to autism. The result is that people with autism can often be mistaken for being belligerent and unco-operative. That is a real concern. Clause 8(4) states:
"Regulations under subsection (1) may include provision... for a person to be treated as not having limited capability for work if he fails without good cause... to provide information or evidence in the manner in which he is required under such regulations to provide it".
Someone wrongly considered to be unco-operative could lose benefit as a result of a lack of understanding of their condition.
Does my hon. Friend agree that that also applies to people with Tourette's syndrome, who might well be unable to conduct what we might call a civil conversation? Indeed, some have already found themselves victims, if I may put it that way, of antisocial behaviour orders because of the nature of their medical condition.
Absolutely. There is a whole range of conditions of which Tourette's is a very good example. My hon. Friend is right to draw the House's attention to those problems. I would also make the point that the range of conditions—incorporating hidden disabilities, learning disabilities, mental health problems and so forth—is such as to require a considerable amount of training in order that any assessor or doctor may understand those problems and make an adequate assessment.
Let us consider what other organisations say about the problem. Mind says that
"the majority of people who carry out PCAs will be locums. Most will be GPs who have done a day's work and will do PCAs in addition".
It states that the assessors
"certainly do not have much in-depth knowledge of mental health problems in the experience of our advisors who work with people with mental health problems".
Mind continues by noting that it
"spoke recently to one of our welfare rights advisors. She attended... 50 PCAs with various clients and in only one case did she find the person to have any understanding of what the issues were, to treat"
"with respect, and to conduct the assessment at a pace that could give the person the opportunity to discuss as much as was needed".
Mind's view is that, as a minimum, assessing GPs should have NVQ level 3 in mental health training. Citizens Advice has particular concerns about the ability of Jobcentre Plus personal advisers to identify appropriately and accurately the support needs of people with fluctuating and unpredictable conditions, or those whose conditions are likely to get progressively better or worse over time. Customers with mental health problems were seen as particularly challenging and even more experienced advisers did not feel confident working with them.
As my hon. Friend Mr. Boswell said to me yesterday, this is not just an academic exercise. Some 40 per cent. of people on incapacity benefit have mental health issues as their primary condition, and if people who have them as a secondary condition are included, the number rises to nearly two thirds. So understanding mental health issues is key to effective reforms of the assessment process.
A further concern is the relationship between the medical assessor and the decision maker. In Committee, the Minister said that the decision maker is not there to second guess Atos Origin but to check that procedures have been followed.
Before my hon. Friend develops that argument, I wish to press the rewind button and take him back to the important point that he was making about the requirement on individuals to provide information in the manner required by the terms of the Bill. He could have been referring—although I do not know whether he was—to clause 8(4)(a)(ii). If the Government are to do the right thing, and possibly avoid contravening disability discrimination legislation, it is essential that they should preserve maximum flexibility for the client as to the manner in which the information has to be provided. Why be excessively prescriptive unless it is essential to the evaluation process?
My hon. Friend makes an important point. That variety of means by which people may supply the information that they are required to supply is important, because the range of disabilities is so vast. The purpose of the new clause is to ensure that there is a process in place whereby it is possible to adapt and improve assessment as time goes on as a result of being able to learn from things that we are not able to predict.
Another worry is to do with the timings of different stages of the assessment process. A claimant needs to go first through an assessment of limited capability for work, then an assessment of limited capability for work-related activity, and then potentially a work-focused health-related assessment. Those may sound complicated but to a claimant they are vital, because failure to co-operate at any stage could mean that the benefit is not awarded or that sanctions are applied, even if a claimant wishes to appeal against an earlier decision.
The Government, to their credit, recognise the problems with the existing PCA. On the question of broadening the understanding of mental health conditions and hidden disabilities, the Secretary of State said to the Work and Pensions Committee in the spring that his understanding was that the Government should
"involve the skills and expertise of a wider relevant range of healthcare professionals."
The Minister said in Committee that
"we will need to change the training in Jobcentre Plus and Atos Origin. When pathways is rolled out nationally, we will need to change the training given to personal advisers through the private and voluntary sectors."—[ Official Report, Standing Committee A,
He also said that the 273 Atos Origin doctors will receive training in disability analysis.
There is no shortage of worthy intentions, but I shall explain why, if the Government are to put those intentions into practice, they must accept the new clause. I refer the House to the details that we have been given of the new personal capability assessment process. I recognise that it is a draft and that the Government have done a great deal to try to adapt the present PCA so that it has a much greater understanding of hidden disabilities and mental health conditions. In particular, the new PCA has a revised section for assessing mental, cognitive and intellectual functions, and I want to give the House some examples of the judgments that will have to be made.
I remind the House that people need 15 points to qualify for the employment and support allowance. A person who has difficulty learning a moderately complex new task gets six points, while one who has some difficulty learning a simple new task gets nine, and one who has significant difficulty learning a simple new task gets 15. Who on earth can tell the difference between those categories? The process is very difficult.
Let us look at the section on understanding instructions. A person who has difficulty in understanding and carrying out moderately complex instructions gets six points, while one who occasionally has difficulty in understanding and carrying out simple instructions gets nine and one who frequently has difficulty in understanding and carrying out simple instructions gets 15.
The section on forming relationships with other people is also relevant. A person who occasionally causes distress to others gets six points, while one who does so regularly gets nine and one who does so frequently gets 15. The extent to which a person causes distress to others in forming relations must be related in part to the resilience of his or her family members and carers. The judgments involved in assigning scores in these matters are very fine, even for people qualified in mental health matters, but they are vital, as they will determine whether a person is eligible for benefit.
My hon. Friend is making a powerful point about the gradations involved, and more of the detail will come out in the regulations. The annual report is intended to prevent people who need support from suffering injustice or lack of sympathy, but does he believe that it will achieve the Government's objective and succeed in reducing the numbers of claimants by 1 million?
In a way that he may not have intended, my right hon. Friend has touched on a point that I was about to make. People are worried that the arbitrary nature of the judgments involved may mean that the point at which people qualify for benefit is set at a level that will help the Government reach their targets, and that it is not based on objective medical assessments. I was a member of the Committee considering the Bill, and I do not believe that that is the Government's intention, but that concern is widespread. The credibility of the system is extremely important, and the new clause would allow an objective assessment to be made of whether it was working as intended. It would commit the Government to adopting a process of continuous improvement that would allow the system to be adapted so that it could fulfil its intended function.
The concerns that I have set out are exacerbated by the fact that, according to a back-of-the-envelope calculation carried out in Committee, the amount of money per head in the pathways roll-out appears to be more than 40 per cent. less than that allocated to the pathways pilots. The resources available in the roll-out will therefore be nothing like what was available in the pilots, so will the Minister reassure us that the assessments will not be driven by financial considerations, and that the PCA will be adapted and improved to take account of the many valid concerns that have been expressed as a result of the failings of the current system?
A simple way for the Minister to give the House those assurances would be for him to accept the new clause. It merely requires the ODI to publish a report, following proper consultation with outside bodies, on how well the assessment for limited capability for work is going. That would not be an onerous commitment and it would cost no money, but it would help to address disability organisations' many concerns about the operation of the current PCA. It would also put in place a mechanism to ensure that the PCA would develop, change and adapt to meet future concerns that we cannot predict now.
In conclusion, there is no perfect assessment process, but the new clause would at least allow some light to shine on the more opaque corners of the new PCA. In doing so, it would not just achieve the Government's intentions, but carry the confidence of the wider public.
It is a pleasure to follow Mr. Hunt. Although I added my name to new clause 3, I shall not support it—certainly in its present form—and I shall explain why, but I want first to refer to amendment No. 71, tabled by me and several of my hon. Friends.
Amendment No. 71 relates to clause 17, which addresses the circumstances in which a person can be disqualified from receiving an employment and support allowance. The amendment would provide that
"a person would not be disqualified on the grounds of failing to take"
Unlike the two previous speakers, I did not have the pleasure of serving on the Committee, but I read a fair bit of its proceedings, which were important and encouraging. There was some debate about the phrase in clause 17 (1)(b):
"failure without good cause to follow medical advice".
There was discussion about the failure of someone to take medication for mental health problems because they felt that there might be adverse side-effects. Most Members would argue that non-compliance on the grounds that the medication could produce severe side-effects would not constitute a sensible reason for disqualification, so my amendment is a probing amendment to give my hon. Friend the Minister and my ministerial colleagues the opportunity to clarify the position. Would people who do not comply with the requirement to take medication be disqualified from claiming the ESA?
I turn briefly to new clause 3, to which I put my name because it relates to real issues. Danny Alexander made a number of points about the importance of getting the new PCA correct, and I very much agree. It is the gateway and is fundamentally important to the Bill. Some of the concerns that the hon. Gentleman expressed have been raised by many disability organisations. That is why at Work and Pensions questions yesterday, I commented that
"the current system of assessment for entitlement to incapacity benefit has not been fit for purpose for many years".
I therefore welcomed the new personal capability assessment but felt that because it was so central to the Bill it
"should be subject to effective, long-term and independent monitoring".
I was delighted that my hon. Friend the Minister for Employment and Welfare Reform replied:
"It is essential that we have a better process to monitor the operation of the personal capability assessment and I look forward to discussing the details...as the Bill continues its passage through the House."—[ Hansard, 8 January 2007; Vol. 455, c. 9-10.]
That was a welcome response.
My concerns are widely shared among organisations such as Mencap, RADAR, Mind and others involved in the review of the PCA descriptors. In a briefing circulated to many Members, they point out that they support revision of the PCA. They think that the revised descriptors are a big improvement particularly for people with mental health issues, learning disabilities and/or an autistic spectrum disorder. However, those organisations have raised concerns about the assessments thus far and the hon. Member for Inverness, Nairn, Badenoch and Strathspey referred to that in his speech. The concerns relate to sample size, the fact that some conditions were not represented in the sample and the fact that the evaluation was not conducted by independent researchers but by the same DWP-contracted staff who carry out the PCAs at the moment.
I am behind the sentiment in the new clause that we need an effective and independent monitoring system, but I disagree to an extent with the organisations that I have mentioned. They and others support the new clause, but I think that they have got it wrong on this occasion. The new clause asks for an annual report and it is not self-evident that we will need a report every single year from here to eternity. More importantly, the procedure will be rather cumbersome because the Office for Disability Issues will publish an annual report after it has consulted the Commission for Equality and Human Rights and any other organisations thought appropriate. As of today, the independent statutory body that should advise Government on disability issues is the Disability Rights Commission, but from October this year it will be the Commission for Equality and Human Rights. If the new clause were saying that there needed to be independent monitoring and that the DRC or the Commission for Equality and Human Rights would be the appropriate body to do that, that would be adequate. The idea that either of those bodies should produce a report and give it to the ODI, which would then present it to Government, is a strange way of going about things. I am sorry to say it, but I think that the new clause is ill thought out.
I would certainly welcome an amendment in a different form on a different occasion if it encapsulated the key principle on which there is some agreement. I think that everyone, including the Government, agrees that there needs to be a mechanism to ensure that the experiences that we have had with assessments for incapacity benefit in the past are not experiences that can be repeated with the new PCA. That is crucial to an extremely important exercise that has support on both sides of the House. Although I cannot support the new clause, I very much hope that the Government will tell us how they intend to ensure that there is proper independent appraisal of the new PCA.
I welcome very much the new clause, the measured tones with which Danny Alexander introduced it and the substantial speech, which included important additional matter, in support of the new clause from my hon. Friend Mr. Hunt.
It is also a pleasure to follow Roger Berry. We have often spoken together on disability issues and, although we come from different political traditions, we find a lot to agree on. His specific point—why the Government's Office for Disability Issues, commendable as it may be, had to be cut into a process that could properly be dealt with by an independent free-standing Disability Rights Commission or Commission for Equality and Human Rights—was a cogent one. He also raised an important and valid point about the exact circumstances regarding the taking of medication.
The debate is about the nature of the personal capability assessment process, but it will inevitably extend into consideration of the wider operation of the system in practice. That is what concerns most of us. The initial gateway hurdle and many things that go on in the process might leave vulnerable people with an element of disquiet or a feeling of dissatisfaction and lead to the system lacking public credibility or becoming discredited. We do not want that to happen.
The hon. Member for Kingswood reminded the House—he was looking at the matter objectively, because, sadly, he was not on the Standing Committee—that there was a remarkable degree of consensus across those discussions. In that spirit, I do not wish to repeat the general arguments that have already been put, because the House should make progress.
It is self-evident that the Government are looking for a system that is better than its predecessor, and that there are real considerations that have been raised in relation to the pilots—matters that were raised in Committee and elsewhere—that continue to worry people. Of those, because they are personal interests of mine, I single out only questions of fluctuating conditions, which have already been touched on, and of multiple conditions, where, although the system is meant to score them collectively, it might be difficult to grasp the overall effect on the individual. The difficultly when one has a protocol-driven system is that, almost by definition, it does not deal with the individual as an individual, and in that we have the potential makings of unfairness or an inappropriate decision.
On the complex nature of disabilities that involve mental and physical aspects, is the hon. Gentleman concerned, as I am, that the revised assessment does not allow for the combination of scores from the mental health and physical descriptors? That might be one of the elements that causes problems with the conditions that he is outlining.
The hon. Gentleman is entirely right. There are issues of interaction where a physical condition gives rises to a mental condition, or a mental condition is accompanied by a physical condition. Frankly, the test of whether things work in terms of assessment should be whether the combined effect of the problems, seen over a period of time and not at one point, when the person happens to be having a good day, shows whether the person is able to operate effectively in work, whether they need support and if so, the nature of the support that they need to get back into work. Those are sensitive issues. Hon. Members have already said that this is not a precise science. We will not get things exactly right in every case. Doctors, even, can have an off-day. However, we need to assure ourselves that the system is going to work better.
On the assessment process, I have a structural concern, which has been touched on, but which I would like to emphasise, in relation to any suggestion—in fairness, Ministers have not suggested this—of moving away from a series of strict criteria. Members with an educational background, including Mr. Marsden, who just intervened on me, will be familiar with the distinction between a norm-referenced exam system and a criterion-referenced exam system. At the moment, we have the latter, at least in principle, and that is what is proposed in the personal capability assessment. However, I can imagine circumstances—Ministers might say that they are inconceivable—in which a future Minister, under financial or even political pressure, might wish to say, "We will introduce a norm. We are not going to have, by definition, more than 1.5 million people on employment and support allowance," and the tests will, in effect, be geared to deliver that result.
I see the hon. Gentleman who moved the new clause nodding in acceptance of my concerns. It is important that Ministers put on the record that what I have set out will not arise.
My concluding concerns relate to the involvement of the Commission for Equality and Human Rights. I do not want to go on about this or claim any particular virtues, but members of the Standing Committee will have heard me express, ad nauseam, my concern about human rights issues. I happen to think that it is rather important that such concerns are entertained on this side of the House as well as in perhaps more conventional or traditional quarters. It is important that those concerns be taken into account in our consideration of the Bill and its consideration in another place, and in all the regulations and the operation of the Bill.
In that spirit—I touch on this briefly—I tabled new clause 1, which was not fortunate enough to be called for debate, although somewhat to my surprise, because it was not directly prompted by the organisation, it attracted the support of the Disability Rights Commission. It sought to set out some general principles—principles that the Minister himself acknowledged were broadly accepted in Committee—and to try to give them some flesh. I think that they could be summarised briefly without it being an abuse of the House. Decisions should be taken in the interests of a client. They should involve at least no detriment to either the health or finances of the client. The action proposed should be proportionate, and at all times the client should be involved—
That was exactly why I was moving on from my point with the closing words that the client should be involved in the process.
The process begins with the assessment procedure, which is the precise subject of new clause 3. I am worried that somewhere along the line we might fall at the human rights hurdle. I do not think that Ministers want that or that there is an agenda for it, but we must ensure that it does not occur. Whether that should be achieved by the new clause that I gaily put down, another measure or an understanding by Ministers, it is important that the matter be addressed, if only in terms of the concerns expressed by Mr. Dismore—I do not often see eye to eye with him—in the past hour when he spoke to his ten-minute Bill. He expressed his concerns about the apparent exclusion of private sector contractors, of whom there will be a lot under the Bill, from the need to discharge their duties under the Human Rights Act 1998. I know that the Minister for Employment and Welfare Reform gave a reassurance in Committee that that would not happen and that it would make no difference whether the pathways contractor was part of Jobcentre Plus or a private contractor. It would be nice if he would give that assurance again. The Minister has also accepted that the new disability equality duty runs through the whole of his Department and that there is no question of any of the public departments opting out.
The hon. Gentleman makes an important point. It is equally important to put it on record that the same considerations about human rights and the disability equality duty should apply to Atos Origin when it carries out the functions of the Secretary of State in relation to the personal capability assessment. In fairness, the Minister made it clear in Committee that that would be the case.
I am grateful to the hon. Gentleman. Others wish to speak, so I will move on quickly.
I am glad that new clause 3 has given us the opportunity to discuss human rights issues. Of course such issues should never be seen on their own and as being isolated from other aspects of public policy. However, the House rightly committed itself to the principles of human rights through its legislation. There is a good deal of common ground on the matter, so it would be distressing to all those who discussed the Bill in Committee and to hon. Members on both sides of the House if the high aspirations for welfare reform that are set out in the Bill were somehow to falter because the legislation did not work or was seen to be unfair. That is why I support new clause 3.
I wish to speak to amendments Nos. 98 and 99, which I tabled. I will be brief because I, if not everyone else, wish to comment on other groups of amendments.
The amendments are quite important. They would insert new provisions in paragraphs 1 and 9 of schedule 2. Amendment No. 99 would allow regulations to make provision
"for a person to be treated as having a limited capability for work-related activity where it has been decided that he does not have a limited capability for work-related activity but he is appealing against that decision."
For the lay man, they would apply to someone who has been told that he cannot work, although he wants to work, and who feels that he can work and can prove that.
The amendments would continue the current rules, which enable a person who appeals against a decision that he or she is incapable for work under the personal capability assessment to claim income support on the grounds of incapacity, albeit at a reduced rate, until the appeal is heard. As I read it, there is no equivalent provision in the Bill. Not including such a provision could increase the risk of poverty, given the poor standard of personal capability assessments at present. I doubt that it is the Government's intention to make people suffer in reduced financial circumstances that may have occurred through no fault of their own, so if the Minister is unwilling to accept the amendments, how does he propose that the anomaly in the benefits system be removed?
I have some sympathy with new clause 3, which was tabled by Danny Alexander. Having said that, I have never been enamoured of annual reports, which usually end up being crammed together in the week before they are due, and which never meet the aims that everyone wants them to meet. If an annual report is simply there as a target, it should not be required.
Does the hon. Gentleman not acknowledge that if an annual report is requested, and there is a requirement to report on progress in certain areas, it tends to focus the minds of the people in an organisation, especially if the report is to be put before Parliament, too? It tends to enable people to focus on the things on which they were intended to focus.
I thank the hon. Gentleman for his intervention, but my experience is that people pick whatever they want out of an annual report. They concentrate on the points on which they want to concentrate, and those points rarely bear any resemblance to those that the ordinary person in the street wants them to talk about. Having said that, the Government should introduce a mechanism that enables an external body to ask them questions, to which they must supply answers, but that happens anyway, and my hon. Friend the Minister would want his Department to supply that information. I should expect the relevant bodies that deal with people with disabilities to want to ask questions, and I expect that they would issue their own reports, saying whether the Government—or in this case the Department—were doing their job.
Is my hon. Friend not concerned, however, that evaluations are carried out by Atos Origin, and it is difficult to get access to independent information because of problems with commercial confidentiality? Is it not important that the Government propose a mechanism to overcome that problem?
My hon. Friend makes a good point, and I agree with it, but the Data Protection Act 1998 opened the way for Members of Parliament to receive information, in answer to questions, that we could not receive in the past. Will the Minister say whether, if we asked questions on behalf of the relevant groups, we would receive answers, despite the fact that my hon. Friend thinks that there would be some difficulty because of the 1998 Act and confidentiality issues? Obviously, medical conditions are a completely different matter; we could not get medical information. However, if an individual asked me, as their Member of Parliament, to act as their representative, could I get the necessary information? If I could not, and if the relevant bodies could not, how could we get the information that we were asking for, particularly given confidentiality considerations in medical cases?
Mr. Boswell made some good points about human rights. Unfortunately, although I wished to talk about human rights issues under part 1, my amendments were not chosen, but I think that I can sneak in my concerns about people who are terminally ill in our discussions on part 1. Their assessments are very difficult, and the great fear, of course, is the length of time that the assessments take, from start to finish. Will the Minister comment on that, even though the matter has only a tentative link to the amendments that we are discussing? It is an important question that needs to be answered. Members in the other place will ask such questions, so I am helping my hon. Friend the Minister by asking it. I urge him to look favourably upon my amendments, and to consider the concerns expressed by Members on both sides of the House. I congratulate my hon. Friend Roger Berry on the excellent points that he made about his fine proposal, which, like my amendment, is a probing amendment.
When I first read new clause 3, I had two worries about it. First, I was concerned that the system would become a little bureaucratic year after year, if and when it settled down. Secondly, as I told Danny Alexander, I was concerned that it would be too late if there were deep troubles in the transitional period. I have been swayed, however, by the moderate and sensible words of my hon. Friend Mr. Hunt, who has made an excellent job of understanding disability issues and speaking up for that community, and by the statesmanlike silence of my hon. Friend Mr. Ruffley, whose judgment I usually back. Consequently, I believe that there must be something in the proposals advanced by new clause 3, and it is not worth while rebelling.
In the words of "Yes, Minister", the proposals are very brave and even heroic. If I had the difficult job of implementing them as a Minister, not only would I welcome the backstop provided by an independent body that could act as a conduit for criticism and appraisal but I would want a day-by-day feedback mechanism in the early months of the transition to make sure that I would receive a clean report from the longstop. The advantage of the longstop for the Minister is that it might enable him to fend off more urgent and telling requests from Parliament. I hope, however, that if things do not go well, Parliament will probe and ask questions before the annual review is produced. It would be sensible for the Select Committee to undertake such work, because we would want to stand up for the many vulnerable people who would suffer stress or distress if the transition was painful and difficult. In addition to the backstop, therefore, the Minister will definitely need intelligence day by day on the number of complaints, delays in the system, how much strain there is on staff, the relationship between outcomes and his perception, which surely informed the Bill, of the veracity and firmness of existing disability benefit claims, and the likely future pattern of such claims. He will need that intelligence as we go along.
My hon. Friend Mr. Boswell has made a proposal relevant to our debate, because the excellent principles of new clause 1, which we are not debating, should help to inform the production of a good annual report, which is mentioned in new clause 3. Such open principles put the disabled person first and accept the Government's important point that many disabled people would like to work and would be better doing so, but need help and encouragement to find work. That should be the spirit of the annual report that would be produced under new clause 3. I should be grateful if the Minister responded to my intervention about the balance of the annual report. Its main purpose should be to protect the vulnerable and make sure that they are treated well and sympathetically, but there is a general policy point to be made about the fact that, wherever possible, work is preferable to other ways of spending one's time. The concept behind the legislation, which is accepted by Members on both sides of the House, is that we wish to promote sensible work for people with certain disabilities, and we think that we can do better than the systems adopted in recent years by various Governments.
I will not embarrass my hon. Friends by praising them more or criticising their new clause. I can live with it, but the success or failure of the proposal will be determined by detailed implementation, strong ministerial control of the regulations, and an immediate feedback system so that if things go wrong the Minister will know at the earliest opportunity and can come to the House, make an honest confession and change the regulations.
I am sure it is true that all hon. Members have some experience of the operation of incapacity benefit and the way that the assessment process affects their constituents, but I suspect that those who have the most regular experience of that mainly sit on the Labour Benches, apart from Mr. Davies, who is in his place and who perhaps one day will be an hon. Friend. Most of those who represent seats where incapacity benefit has coagulated in the most extreme sense over the past 20 years are Labour Members. In particular, that is because in former mining, ship building or iron and steel constituencies where those industries have collapsed over the past 30, 40 or 50 years, there are now a very large number of people on incapacity benefit.
I had not intended to speak in the debate on the new clause tabled by Danny Alexander because many of the issues have already been set out. However, if I had gathered the same number of constituents from my constituency to have the same debate, it would have been entirely different from the tenor of the debate that we have had so far this afternoon. Many would agree with the view that the present system of assessment is wholly unfit for purpose, but they would do so from two completely different perspectives.
Many who are users—who are in receipt of incapacity benefit—would say that the system of assessment is wholly unfit for purpose because too many people are losing incapacity benefit, but many other constituents would say that it is wholly unfit for purpose because it grants incapacity benefit to an awful lot of people who many of my constituents would consider not to be due recipients of that benefit. What that does to the economic life of the constituency and the economic expectations of young people coming out of school can often depress not just the local economic culture, but our economic aspirations.
I wanted to speak in the debate because I have a strong memory of one man coming to my surgery three years ago. He stormed in and said, "It's outrageous. I had a heart attack in 1986 and I have been in receipt of incapacity benefit or invalidity benefit"—there have been various versions—"ever since. Now the doctors, on behalf of your Government, have said, 'You've got to go to work because you're fit to work.'" As other hon. Members would have done, I discussed with him whether the processes had been carried out properly, but eventually I had to say that I was not a doctor and could not judge whether he was fit for work or not. I could not make such an assessment.
The man replied, "I knew it. You lot are a shower—a complete waste of time. The worst thing about your Government is that the benefit that you pay is so little that I have to go and mix cement on a building site every single day of the week!" I know hon. Members will laugh, but what is extraordinary is not so much that he said that, as that he chose to say it to me, and that he believed it was a perfectly legitimate complaint for him to make. He believed that he had worked all his life and that he should be in receipt of that benefit, in order to make his weekly package add up and to make his life worth living, in his regard.
Of course, the vast majority of us, if not all of us—perhaps not all of the community that I represent, but the vast majority—would say forcefully that that man was working and should not have been in receipt of benefit, and that that form of fraud is the worst form of theft because it is against the whole community, not just against individuals. That is why it is vital that we change the system of assessment in the way that the Government suggest.
In citing that example, does my hon. Friend agree that it is important not to give the impression that there are large numbers of people in receipt of incapacity benefit who are fit for work? In all my time as a Member of Parliament, I have never experienced anybody coming to my surgery who would in any way fit into that category of claimant.
I agree that it would be utterly inappropriate for us to suggest that the vast majority of people who are in receipt of incapacity benefit are shirkers who are deliberately trying to avoid the world of work. In my experience, the vast majority would like to be in work if there were a means of the state helping them to get into it. The single most important thing that I would like to inject into the debate is the passion felt in many communities that have had a very rough time, resulting in historically high levels of deprivation, which want to get back up off their knees. They will only be able to do so if more people are able to get off benefits and into work.
Mr. Hunt, in a splendid speech, made an important point in response to Mr. Redwood when he mentioned the possibility that the Government's system of assessment might be thought to have been designed to reduce the number of people on incapacity benefit or its successor benefit. That clearly should not be the case. The Government should not be trying to use their assessment process to force people off benefit and into work. However, it is equally right—many Labour Members will feel this more acutely than others because we have higher numbers of people on incapacity benefit—that the Government should be desperately seeking to enable more people who are on those benefits to get into work.
I would back up the hon. Gentleman by saying that not only Labour Members feel that. I appreciate that historically, as he said, many people claiming incapacity benefit and its predecessors coagulated in seats held by his party, but he should appreciate that one of the fastest growing causes of incapacity benefit claims has been failing mental health, particularly the fluctuating conditions mentioned by my hon. Friend Mr. Hunt. Those people are found in many other parliamentary seats—notably, perhaps, in seaside towns such as the one that I represent. The problem is shared on both sides of the House, and I am sure that all Members would want to reflect on the matters that he mentions.
I am sure that the hon. Gentleman makes an important point. However, he will make a mistake if he presumes that the reason for the high level of incapacity benefit claims in my constituency is that people have residual musculoskeletal problems from working in the mines, because remarkably few people of working age living in Rhondda have ever worked in a mine. More than 50 per cent. of people on incapacity benefit in my constituency are in receipt of it for mental health problems, and 50 per cent. of those are women. The pattern of incapacity benefit claims has changed dramatically, but the level is extraordinarily high—between a fifth and a quarter of all people of working age in my constituency are on incapacity benefit. However, I think that the hon. Member for Blaenau Gwent has the highest level of claimants in Wales. All sorts of hobbling, to use a valleys word, may go on, with elements of the black market making it possible for families to survive, but it is important that we try to change that culture of expectation; otherwise, I will feel that a Labour Government have failed in a socialist duty to tackle one of the greatest causes of poverty, which in my constituency results from incapacity benefit.
The hon. Gentleman is making a fair point, but is he not also illustrating how the current system has lost the confidence of those who are using it and of the general public? It is important that we get the personal capability assessment right, and new clause 3 would ensure that the new system is not subject to the same failings as the current one.
I agree with the first half of the hon. Gentleman's comments, but disagree with the second half. It is clearly true, as I said earlier, that the current system has fallen foul of incapacity benefit users—those who are in receipt of it—and of the wider community, but that is why we need to get the system right now, not review it so frequently as to further undermine confidence in it because it changes year after year. Of course we need a system of review, but although I sympathise with the thrust of the new clause, I disagree with the idea of having an annual review, because such a constant process of change would not allow people to regain confidence in the system. I also believe, as the right hon. Member for Wokingham suggested earlier, that the review process should not be subcontracted to some other body but undertaken by a Select Committee, because the greatest expertise resides there.
I shall, but my last sentence was to have been the final one in my speech.
Review does not necessarily mean change. It means ascertaining whether something works. That is important—conducting a review does not mean that the system will change every year, but it would ensure that the new system was not failing in the same way as the existing one.
The hon. Gentleman makes his point, but I would prefer a review every five years because when reviews take place and there is no change, people tend to question the point of reviewing.
There is a general rule that one should use the word "final" only once in a speech but I shall now have to use it again.
Reports, reviews—there is not much difference between them. My point is broader and concerns the role of Parliament. I believe that the role of reviewing, revising and ascertaining whether we have got the assessment process is right should reside with the House and should not be subcontracted to another body. I shall therefore oppose the amendment tabled by the hon. Member for Inverness, Nairn, Badenoch and Strathspey.
There is no doubt that hon. Members of all parties generally welcome the Bill, which acknowledges that viewing the capacity to work positively is an important step forward. That focus is crucial if we are to tackle some of the long-term problems that we are experiencing with incapacity benefit. The Bill is perhaps also an acknowledgement of the fact that the existing policy was not effective in removing people from long-term incapacity benefit. I cannot remember the exact figures, but the numbers increased hugely for people who had been on incapacity benefit for more than five years. The Bill is therefore an acknowledgement of a problem and of a failure of existing policy.
The personal capability assessment is currently the only access point to the new employment and support allowance because existing claimants on incapacity benefit will not be transferred. It is therefore vital that the PCA is useful, effective and does not cause problems but leads to their resolution by identifying people's capabilities to work rather than their overall incapacities.
However, too often, laws and regulations are made in the hope of achieving an outcome. As a member of the Science and Technology Committee with a background in business, I believe in evidence-based policy making. That is why we must acknowledge that laws and regulations—the PCA is largely a regulation—often have unintended consequences. In some cases, regulations have the opposite effect to that desired. Evidence is therefore vital and that produced so far is rather dubious. Only a small sample of assessments was made in reviewing the PCA—it ran only into the hundreds, if I am correct—and some conditions were missing. For example, nobody in the sample had disabilities on the autistic spectrum. I urge the Minister to consider new clause 3 carefully because if there is no evidence for effectively establishing the new PCA, surely it is important to produce a report to show its effectiveness, at least for the first few years until we are confident that people's lives are not being destroyed due to insufficient data.
My key concern is about people who face a mental health challenge. If people who suffer from depression, are in remission from it or who suffer the other disorders and challenges that those with mental health problems encounter, are confronted with a PCA in which they are not confident, that could trigger another episode of their condition. So we need to be very careful about the PCA, and one way of ensuring that it produces the intended consequence of identifying people's capability for work is to report on it. There is a fundamental difference between a report on the outcomes of a policy and a review of that policy. New clause 3 calls for a report on the outcomes, not a review.
If the Secretary of State and the Minister are confident that the new PCA will work, why do they oppose disclosure in the form of what I imagine would be a fairly straightforward annual report? Why would they feel the need to hide anything, or cover it up? Will the Minister take responsibility for any harm done to those with a mental health condition if the PCA is not effective or if it is not implemented correctly? From what I can see from the lack of data and evidence, and from the performance of the previous capability assessments in which 50 per cent. of appeals were upheld, the present PCA is based on a lot of hope and aspiration but very little fact or evidence. We have an opportunity here, and if the Minister will not accept new clause 3 in its present form, I urge him at least to give a strong indication that he will introduce proposals for some kind of report on the personal capability assessment element of the Bill.
It is a pleasure to respond to what has so far been a typically constructive debate. It has been consistent with the tenor of our detailed scrutiny of the Bill upstairs in Committee. Some might say that despite my contributions, we had some of the most informative and productive exchanges that I can remember in any Standing Committee on which I have had the pleasure to serve in my mere decade in this place.
I have no desire to interrupt the hon. Gentleman's flow, but in a spirit of bipartisanship, may I ask whether he was aware that, after the first day of our deliberations upstairs, one of the policemen commented to one of my hon. Friends that it had been the most constructive and good-natured debate that he had heard in all his time on the upstairs corridor?
I was not aware of that. I had been labouring under the illusion that those fine members of Her Majesty's constabulary did not listen to the detail of our conversations, and that they perhaps participated in sudoku or some other leisure pursuit in Committee. However, it is enlightening to hear what the hon. Gentleman says. The success of our discussions was at least in part down to the contributions made by him and his Front-Bench colleagues, as well as by Danny Alexander, by Mr. Laws in a passing visit and by the Under-Secretary of State for Work and Pensions, my hon. Friend Mrs. McGuire— [ Interruption.] I want to make some progress, but I must not forget the contributions made by my hon. Friend John Robertson and those from many other airts and pairts of Great Britain.
I am pleased to follow Adam Afriyie in this debate because he played an important part in our deliberations in Committee and has rightly said that our approach to welfare reform should be evidence based. He is also right to say that incapacity benefit in its present form has not kept pace with the changing nature of disability, given the emergence of mental health conditions—particularly fluctuating mental health conditions—over the past two decades, and the changing gender make-up of the present IB customer base. About 40 per cent. of those on IB at the moment are women. We know that there has been a transformation in the sense that IB had previously been considered a legacy of our industrial heritage, but that is no longer entirely the case.
IB has not kept pace with the changing nature of society and the legal rights that disabled people now enjoy in the United Kingdom. It has not kept pace with attitudes to those with learning difficulties, many of whom, it is now recognised, can play a productive role in the labour market. Progressive employers are now seeking ways to involve many people who have a fluctuating mental health condition or learning disability in active employment.
The benefits system has not kept pace with such social changes as it should have done. Notwithstanding that, progress has been made. If we can continue as we did in Committee, without the traditional partisanship, it would be helpful.
In passing, the number of people on incapacity benefit has decreased significantly recently—by about 54,000 in the past year. The most recent figure for the number of people on incapacity benefit is, I think, 2.69 million. If we had continued the trajectory as it was in 1996-97, however, that figure would be 4 million. Of course, much more needs to be done to support more of those 2.6 million to get off incapacity benefit.
I also want to allay the fears expressed by Mr. Boswell about the Government setting an arbitrary upper target for the number of people on incapacity benefit. He knows that that is not what the Bill is about, and it would be reactionary and wrong for this or any alternative Government to set an upper limit for the IB caseload. We have set a target of reducing the number by 1 million, but we are not seeking to achieve that through a legislative cap; we are providing the support to enable that as a public policy intent. That is what underpins the Bill.
Let me comment briefly on the new Government amendments. As we have said, we want everyone to have the opportunity to work. That is why we have based entitlement to the support group on the most severe disability, which would make it unreasonable to require the person to engage in work-related activity. That underpins Government amendment No. 18. In relation to clause 9, the 46 descriptors in draft regulations, which have been provided in the Library of the House, reflect such a severity of disability.
One of the problems that will doubtless emerge is that different assessors, even in the same locality, will have a different view of how to score particular types of disability and whether people qualify for the support benefit. That is true of any system, but it is particularly acute in a new system, when many people's judgments are up in the air, and people worry about whether they have been more harshly treated than others. What will the Minister do to try to ensure greater consistency of judgment and greater clarity on how to score?
I will come to those points later. In general, however, the right hon. Gentleman is correct. Without being too churlish, he and I do not always find ourselves in agreement, but he is absolutely correct about the need for national consistency in assessments, not just in relation to incapacity benefit and employment and support allowance, but with regard to all sorts of other entitlements to benefits, including jobseeker's allowance.
On Government amendment No. 18, we recognise that there are circumstances in which a person might not satisfy any of the 46 descriptors were they applied. We would still, however, want to treat them as having limited capability for work-related activity, and therefore as having access to the support group. As I said in Committee, paragraph 9(a) of schedule 2 allows us to provide in regulations for certain groups of people to be treated as having limited capability for work-related activity. For example, a person with a point of weakness, such as an aneurysm in one of the arteries to the brain, could put his or her life at risk by engaging in anything requiring even slight effort. We would automatically place such a person in the support group, even though they would not meet any of the 46 specific descriptors were they applied at that stage.
Those circumstances do not necessarily imply that someone should be treated as having limited capability for work-related activity for an indefinite period. People's condition and indeed circumstances may well change, and we want to ensure that we can respond to those changes. The amendment makes that possible.
Amendments Nos. 26 and 47 are concerned with consistency and continuity. They simply maintain long-standing benefit rules. Amendment No. 26 allows regulations to be made so that a person who is disqualified from receiving employment and support allowance because of his or her own misconduct can be treated as not having limited capability for work for the purposes set out in regulations. Consequently, he or she will not be entitled to the allowance for the period of disqualification. The provision can also confirm entitlement by treating the person as having limited capability for work.
Importantly, that replicates the current approach in section 31(1) of the Social Security Act 1998, which provides for regulations to allow a person who is disqualified from receiving incapacity benefit on similar grounds to those that will apply to employment and support allowance to be treated, for prescribed purposes, as not being incapable of work and therefore not entitled to benefit. Amendment No. 47 provides for the repeal of that provision once the migration of existing cases to employment and support allowance is completed.
I hope that that was as informative as it is possible for the explanation of technical Government amendments to be. Let me now deal with proposals that have attracted considerably more attention, starting with new clause 3.
As was suggested by the hon. Member for Inverness, Nairn, Badenoch and Strathspey, when we implement a new policy—particularly one as important as this—monitoring must be a continuing process, and we certainly intend that to apply to employment and support allowance. The hon. Member for Daventry spoke of consistency in contractual arrangements, particularly in the private and voluntary sectors. He and other Members may have availed themselves of information placed in the Library, which explains how we intend to make that a reality.
The hon. Gentleman also found himself in agreement with my hon. Friend Mr. Dismore, who presented a ten-minute Bill earlier today. What surprised me most was the fact that my hon. Friend managed to present his proposals in 10 minutes, which was probably a first for him.
The revision of the PCA has naturally attracted substantial interest. It is, of course, essential for us to evaluate the way in which it will work. The first stage of the test carried out in October and November was a limited evaluation of the revised descriptors and scores to enable us to begin drafting regulations. A second, more detailed, evaluation of the PCA will begin shortly. It will enable us to refine and fine-tune the recommendations of the working groups, while also ensuring, before we implement it, that the revised PCA constitutes a robust and accurate assessment of limited capability for work.
Members in all parts of the House referred to the initial dry run of the descriptors. I hope that I can reassure the hon. Member for Inverness, Nairn, Badenoch and Strathspey and others. From the Government's point of view, this is work in progress. The initial evaluation was intentionally a small study, intended to confirm that the revised descriptors and scoring system would work. As those who served on the Committee will know, it has always been the case that further evaluation will take place as the task of refining the descriptors evolves.
I stress that we are not drawing any firm conclusions about the effect of the revised descriptors on the benefit allowance or disallowance rate from such a small sample of cases. The next phase of evaluation, which is due to begin soon, will involve a larger and more representative sample, and representatives of the consultative group will be invited to take part. There will thus be a wider audience and a much greater number and variety of cases.
As I said, I shall also give way to the hon. Member for Inverness, Nairn, Badenoch and Strathspey.
I shall address the independent nature of the assessment and monitoring shortly, but I anticipate that the points of the hon. Member for Inverness, Nairn, Badenoch and Strathspey will be of a similar tone to those of my hon. Friend the Member for Kingswood—although I might be wrong, of course—and I would like to respond to both.
I welcome what the Minister says about a further and more detailed evaluation and the involvement of independent groups. Will he also assure us that information will be made available to the House so that we can scrutinise all relevant matters as well as the independent groups? If that is done, the concerns that exist can be allayed before we move forward with draft regulations—or, indeed, with putting the new test into practice.
I will be happy to do so. We will certainly publish the report of the initial dry run before the Lords Committee stage, and we will hold discussions with the hon. Gentleman and others about the most appropriate time to inform this House and the other place about the specific outcomes of the second, and more substantial, process of utilising the new 46 descriptors. We will also seek to publish as much information as possible on the time scales that have been mentioned.
Despite some of my comments and the hon. Gentleman's kind words in response to them, I am not attracted to new clause 3. Involving the Office for Disability Issues, which is of course part of the Department for Work and Pensions, by asking it to provide an annual report on the operation of the PCA would distort the natural accountability by placing at least some of the responsibility for operational stewardship elsewhere in the Department, rather than with those responsible for the specific policy and its operation.
My hon. Friend the Member for Kingswood explained why he was not attracted to new clause 3, and there are additional reasons why the Government are not attracted to it. The Department is already required under disability discrimination legislation to produce a disability equality scheme. Active involvement of disabled people is already required in meeting the duty to promote disability equality. The additional obligations that new clause 3 proposes be imposed on the ODI would merely replicate the good work already being carried out by Departments, including the DWP, in meeting their duty to promote disability equality.
I have spoken about the new clause's problems in respect of accountability. I have also referred to existing provisions on disability equality and the impact on disabled people generally. New clause 3 would create further problems in respect of the feasibility of requiring the ODI to provide reports on the operation of the assessment of limited capability for work. That is because of what the ODI would be asked to evaluate. The assessment of limited capability for work will inevitably involve clinical judgment because it will deal with the effects of medical conditions on individuals who have symptoms that cannot be measured precisely or exactly, such as pain. New clause 3 would require the ODI to review, evaluate and assess policy in the area of clinical judgment and would require the ODI to assess medical quality standards. Understandably, the ODI is not equipped to carry out such an evaluation process. It does not employ health care professionals, who would be needed to judge whether clinical judgment is being correctly applied.
We have much more effective ways of carrying out that assessment. That brings me directly to the point made by my hon. Friend the Member for Kingswood. There are more effective mechanisms for independently evaluating the revised PCA to ensure that it effectively assesses limited capability for work, before it is implemented in 2008. We will also continue to monitor the effectiveness of the revised PCA following its implementation. For the first two years after it is implemented we will involve in its ongoing evaluation the independent experts from the technical working groups that advised us on the transformation of the PCA. For the period from 2008 to 2010, those independent experts will remain in place to offer assessment, challenge and observations about the operation of the revised PCA during the first two years.
The Minister has already said that he is willing to make public the assessments between now and the completion of the Bill's passage, but is he also willing to make public the data that he just described after that passage during the first two years of operation? It would then not only be a matter of consultation between him and the independent experts, but could be reviewed by the House and, more particularly, the Select Committee as well.
The hon. Gentleman has helped with our deliberations on the Bill at all stages and he has offered another reasonable suggestion. Subject to the caveat that there are no issues of commercial confidentiality—I cannot see how it would apply in this matter—we would be able to provide that information to the House and the relevant Select Committees. I hope that that also reassures Mr. Redwood about micro-assessment and the ongoing day-to-day basis of how the revised PCA operates over the first two years. It is important that we learn about the changing outcomes of the appeal processes and assess whether we have got that right in the first two years. That provides an additional external check on how we manage the operation and effectiveness of the new PCA. After that time, we will still be subject to the usual channels of parliamentary scrutiny through Select Committees, the Public Accounts Committee and parliamentary questions.
For all those reasons, we do not accept new clause 3 as we do not believe that it is a desirable way of auditing the application of the PCA. In addition to those protections and the independent and crucial parliamentary challenge that I have mentioned, the Government would reflect further at the end of the three-year period. Having gathered all the evidence and having learned from consultative groups and the observation of Select Committees about the nature of the appeal mechanisms, we would then consider the most effective way of continuing to keep on top of the issues with an active review and independent assessment of the continuing role of the PCA beyond 2010. I hope that that reassures the hon. Member for Inverness, Nairn, Badenoch and Strathspey enough to tempt him to withdraw the motion, but I am not sure that it will.
I should like to move on to deal with issues raised by my hon. Friends, particularly on amendment No. 71. I am glad that my hon. Friend the Member for Kingswood has provided the Government with another opportunity to put our intentions on the record. We intend that the powers in clause 17 will be used only if a customer purposely and without good cause is found to have a limited capability for work, resulting from their own misconduct, failure to follow medical advice or failure to observe prescribed rules of behaviour. That includes misconduct leading to injury or a refusal to follow standard medical advice recommended by a doctor or hospital that could improve their condition and allow them to return to work.
As stated in Committee, the purpose of clause 17 is to safeguard the benefit system against abuse where a customer deliberately decides not to follow standard medical advice in order to continue to receive benefit inappropriately. The clause is not an attempt in any sense to force people into accepting medical treatment or medication that they do not wish to take for genuine reasons—for example, on account of unacceptable side effects of drugs or fear of surgery. I hope that that reassures my hon. Friend the Member for Kingswood on the issues that he raised.
Amendments Nos. 98 and 99 were tabled by my hon. Friend the Member for Glasgow, North-West who illuminated the Committee with observations on his experience in Glasgow. A league table of incapacity benefit has been published, so we know that the city of Glasgow has the constituencies with the highest level and the second highest level of incapacity benefit customers in the whole of the UK. Without wishing to enter the whole debate between my hon. Friend Chris Bryant and John Penrose, the changing nature of incapacity benefit is evident in that more women are now claiming it. But it is still the case that if one were to publish a list of the 100 parliamentary constituencies with the highest levels of incapacity benefit, 94 or 95, perhaps even 96, of them would be represented by Labour Members. I make no wider point than that, except to say that it is a result of the historical footprint of deindustrialisation and the fact that so many people were abandoned for a period when they lost their jobs and were out of the labour market for a prolonged time. As my hon. Friends have pointed out, if someone is on incapacity benefit for one year, they will on average be on it for nine years.
My hon. Friend the Member for Glasgow, North-West asked about the Atos Origin operation. My hon. Friend the Under-Secretary, who has responsibility for disability issues, regularly answers parliamentary questions about the operational nature of Atos Origin and its procedures and practices. With a customer's permission, the IB medical report may be made available to Members of Parliament and that is the right level of confidentiality.
My hon. Friend the Member for Glasgow, North-West also asked about terminal illness. He had a novel way of avoiding your wrath, Mr. Deputy Speaker, by admitting that he was widening the terms of the debate and hoping to sneak the issue past you. I hope to sneak a response past you in the same way, although it is of course open to you to call me to order. I hope that I may offer some comfort to my hon. Friend and also to my hon. Friend Mr. Brown who doggedly pursued the issue in Committee. I have given a commitment to talk to my hon. Friends in greater detail about this and it is our intention to fast-track those with a terminal prognosis through the system so that they do not have to wait the 13-week assessment period. We also wish to find ways to pay the benefit much more quickly. We process claims for DLA in about a week and there is no reason why we cannot seek to achieve a similar turnaround for those with terminal illness in respect of ESA.
At present a person who is claiming IB or IS on the grounds of incapacity for work and who does not meet the PCA threshold has the option of either claiming IS at a reduced rate, set at 80 per cent. of the usual personal allowance, or of claiming jobseeker's allowance while they are appealing against the PCA decision. That is because many customers believe that they will prejudice the appeal if they are seen to be claiming JSA, which has rather more onerous conditionality requirements than IB.
For ESA, we have decided to simplify the system. Where a customer does not satisfy the PCA, but continues to provide medical advice that they should refrain from work, entitlement to ESA at the assessment phase rate will continue pending the outcome of the appeal. That is a unique feature of the decision making process for social security, as normally when a person is not entitled to benefit it ceases and would be reinstated only when an appeal tribunal rules in the customer's favour. Customers will be subject to ESA conditionality, not JSA conditionality, pending the outcome of the appeal. I hope that that reassures my hon. Friend on his important amendment. Amendment No. 98 is therefore unnecessary and I hope that my hon. Friend will not seek to press it.
Amendment No. 99, as has been suggested, goes much further than amendment No. 98 in that it seeks to treat people who have shown that they do not meet the criteria for limited capability for work-related activity as if they do so, solely because they are appealing against a decision that they do not. The effect would be to enable people in that position to receive a higher level of benefit and also not be subject to the normal conditionality regime simply because they have entered the appeals mechanism. I suspect that that is not the purpose behind the amendment and I again invite my hon. Friend not to press it.
In conclusion, I have outlined the reasoning behind the technicalities of the Government amendments, and sought to reassure my hon. Friend the Member for Kingswood about our intentions in respect of medical treatment. In addition, I hope that I have reassured my hon. Friend the Member for Glasgow, North-West about his specific and important concerns, and that the hon. Member for Inverness, Nairn, Badenoch and Strathspey accepts that there will be parliamentary scrutiny in the important period between 2008 and 2010. At the end of that period, the Government will table proposals to ensure that the right of independent and parliamentary scrutiny is further enshrined so that the effectiveness of the revised PCA, which is central to the introduction of the employment and support allowance, can continue to be assessed.
This has been a good debate, especially in respect of the need to secure continued independent assessment and scrutiny of the revised PCA. I welcome the Minister's response to our criticisms of the initial dummy runs, and the problems that arose with them. I also welcome the fact that there will be another set of initial assessments, but the Minister's partial concession that independent involvement will continue for the first two years of the new PCA does not go far enough.
As happened with the current system, many of the problems will not arise in the first two years of the new PCA. The Minister spoke earlier about the changing nature of disability over the years, and that is why we need an annual review. Roger Berry wondered whether the ODI was the right body for that purpose, but I think that, in consultation with other organisations, it could play that role very effectively. Therefore, although I welcome some of what the Minister said, I still want to press new clause 3 to a Division.