Report (3rd Day)

Part of Welfare Reform Bill – in the House of Lords at 4:00 pm on 11th January 2012.

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Photo of Lord Freud Lord Freud The Parliamentary Under-Secretary of State for Work and Pensions 4:00 pm, 11th January 2012

I am sympathetic to this issue-one has to be. Clearly, we are continuing the whole time with improvements to the WCA process. We are getting a lot of improvements. We are beginning to sense that. Although the figures do not show it, the anecdotal feedback is becoming much more encouraging. This is an area in which we can make the assessments with the kind of detail that is necessary as we work through the process. Indeed, that is where it should be done. As the noble Baroness, Lady Finlay, said, in these situations it is extraordinarily difficult to come up with a six-month or a year's prognosis. We all know that. The position, on the balance of probabilities, is that if the prognosis is six months, people go straight into the support group. That has happened since 2008 and for about 10,000 people.

The data are extraordinarily imprecise. There is great variability among clinicians. It is very hard to pin down anything that we could use with any consistency stretching out to two or three years. Medicine is advancing with great rapidity, so whatever we decide on today may be radically different in two years' time. A longer prognosis could mean that a condition could be very well controlled for a period and then deteriorate dramatically towards the end. The amendment concerns only conditions that are uncontrolled and uncontrollable. Clearly, that may not be the case for many life-limiting diseases. I think there is consensus around the House that in many circumstances work is beneficial and important for those with life-limiting conditions. Some will want to continue to work, and it is important that we have a system that does not write people off but allows for that.

The most important point is that it is simply not appropriate to put such provision into primary legislation. We already have powers in the Welfare Reform Act 2007 to treat claimants as having limited capability for work or for work-related activity. Where appropriate, we use those powers to make regulations that allow for people who would otherwise fail to demonstrate limited capability for work or work-related activity to be treated as having either or both. It is important to place those treating provisions in the regulations, so that we have the right flexibility to ensure that the test is operating properly and covers the right people.

Terms such as life-threatening, uncontrolled, uncontrollable, recognised and therapeutic are subject to different interpretations. That is why it is important to be able to refine the wording or adjust it over time to ensure that the test remains accurate and appropriate. If we placed such wording in primary legislation, we would not be able to amend it with the flexibility that we would need. We would need future primary legislation-I think that everyone in the House knows what pressure there is on time for primary legislation-which would hinder its being updated.

We already make provision for a variety of "treating as" provisions in secondary legislation. There is no basis for inserting this provision into primary legislation when the other important provisions are contained in and work effectively through secondary legislation. Bluntly, that would lead to inconsistency in both primary and secondary legislation.

I ought to pick up a couple of points made by the noble Lord, Lord McKenzie. On his question about how appeals work, claimants will be treated as having limited capability for work where an appeal has been made, and will be able to benefit from the new provision if they move to the support group, having won the appeal. How will we continue to assess capability to work after the time-limited award ends? Credits-only claimants will continue to have work capability assessments, as will claimants on income-related ESA. This is clearly a complicated area. I hope that I have dealt with it. I can write to the noble Lord if he needs further detail.

I thank noble Lords for their comments on Amendment 43, for which I am pleased to have had so much support. That was one of the really good things that came out of Committee. A lot of good things came out of Committee, but that provided a real learning opportunity for us and I hope that we have responded in style. I ask noble Lords to support the series of government amendments, as I am sure they will, and I urge them not to press Amendments 42 and 42A.

Amendment 33 agreed.

Amendment 34

Moved by Lord Freud

34: Schedule 3, page 126, line 3, at end insert-

"( ) section 1B(1) (as inserted by section (Further entitlement after time-limiting) of this Act;"

Amendment 34 agreed.

Clause 40 : Interpretation of Part 1

Amendment 34A not moved.

Clause 44 : Claimant commitment for jobseeker's allowance

Amendment 35 not moved.

Clause 46 : Sanctions

Amendment 36 not moved.

Clause 51 : Period of entitlement to contributory allowance

Amendment 36A

Moved by Baroness Meacher

36A: Clause 51, page 36, line 31, after "2007" insert ", and subject to section 52,"