House of Commons - Social Security

Select Committee on Social Security Fourth Report

V. GATEWAYS TO DLA

25. The Committee received evidence which raised questions as to whether the gateways to DLA adequately reflected its purpose.

The "main meal test"

26. The main meal test was designed to be a hypothetical rather than a practical test. During Second Reading of the Disability Living Allowance and Disability Working Allowance Bill the Minister (Rt Hon Tony Newton) stated that it was intended to provide 'a relatively simple test that is amenable to self-assessment and rapid adjudication'.[38] The DSS awards study found that 85 per cent of lower rate care awards were based on the main meal test.[39] In that study DLAAB's opinion was that a quarter of those could in fact prepare a main meal.[40] The Board also found that one fifth of the cases considered by NASCAT to fail to satisfy the 'significant portion' test did have care needs.[41] In their own report, DLAAB indicated that the main meal test has been 'liable to misinterpretation and abuse', and proposed its abolition, with future tests based on practical evaluations rather than abstract legal concepts.[42]

Supervision tests

27. DLAAB further suggested that the middle rate of the care component (indoor day supervision) and the lower rate of the mobility component (outdoor supervision) should be combined to avoid duplication. The Carers National Association[43] and the Cystic Fibrosis Trust[44] were concerned that the impact of changes to this rate of benefit could have an impact on carers, who are only eligible for Invalid Care Allowance if the disabled person is receiving the higher or middle rate of DLA care. We recommend that any changes to DLA should include an assessment of the impact on Invalid Care Allowance, and that the ICA gateways should also be reviewed.

Case law

28. The particular conditions of DLA have generated a considerable body of case law, including the distinction between 'day' and 'night' in order to decide the higher rate of benefit.[45] The Social Security Advisory Committee has noted that over the years case law has extended the meaning of 'bodily functions'.[46] The situation is far from satisfactory and eligibility may depend on whether the particular condition can be 'squeezed in' under the existing rules, rather than any real intention on the part of government to cater appropriately for certain disabilities as part of a deliberate policy.[47] The Mallinson case affected the definition of 'attention' to include the spoken word[48], and Halliday extended the help required for attention to include social activities.[49] Cockburn allows some help with domestic tasks to be added to the aggregate of care needs.[50] The extent to which these cases have affected the growth of DLA appears to have been limited so far. Some 3,000 people in a similar situation to Rebecca Halliday were awarded benefit as a result of the case, with a cost (including arrears) of some £3 million.[51] In the DSS awards study, NASCAT estimated that in only 13 per cent of cases (2 per cent of all awards) would a different award have been made pre-Mallinson. Some differences of emphasis emerged between Ministers and officials in the evaluation of the impact of this caselaw.[52]

29. Mrs Nicole Davoud of DLAAB told us that the benefit was not tightly enough designed, so that

"we do not exactly know who is to be allowed DLA and who is not, it allows for Commissioners to come up with decisions which sometimes we just do not believe, to be perfectly truthful, and it allows for a whole collection of people to come into the periphery".[53]

DLAAB suggested that future legislation should

"stipulate exclusions from the benefit as well as inclusions, in order to avoid the current situation in which benefit entitlement has been stretched well beyond the original policy intention of the legislation by commissioners' decisions".[54]

They further recommended that benefit entitlement in future legislation 'could be detailed in secondary legislation thereby allowing Parliament to reimpose what is intended more easily than at present'. The main conditions of entitlement to DLA (and its predecessor benefits) have been contained in primary legislation, now in the Social Security Contributions and Benefits Act 1992 (as amended), with regulations specifying some of the detail for the mobility component (less so for the care component). In our view allowing the rules to be changed more easily is no substitute for getting them right in the first place. We recommend that the Government should consider publishing a draft Bill, following the normal process of consultation, to allow a full public debate to take place before legislation to reform DLA is introduced into Parliament.

Targeting

30. Despite the extensions to DLA in 1992, there remain groups of people for whom entitlement to DLA requires straining of the current conditions or a new approach. DLAAB suggested that better targeting of DLA should include those who may not fit comfortably into the current DLA criteria, e.g. those with problems affecting their mental health or hearing. DLA has been criticised as 'inaccessible' to people with mental health problems.[55] Mrs Elizabeth Bray[56] suggested a mental health component, separate from the current conditions of care and mobility, based on having been sectioned or being under supervision or having spent periods in a day hospital. The assessment would involve confirmation from a professional care worker (such as a psychiatrist or a community psychiatric nurse). The Minister told us she was willing to look further at this issue.[57] We welcome the Minister's willingness to look at the position of people with mental health problems and we recommend that the position of other groups who currently face difficulty in establishing a claim under the current rules should be considered as part of the review of DLA to ascertain if other 'gateways' would be more appropriate.

31. The DLAAB report also suggested that DLA should be focussed on people with the most severe disabilities. Mrs Davoud defined severely disabled as

"a person who for physical, mental or perhaps sensory reasons is totally unable to cope with the key daily activities. They are unable to get up, they are unable to dress themselves, they are unable to wash themselves. That is severely disabled."[58]

One of the difficulties is that research evidence indicates that severity alone may not be able to account for the additional costs that a disabled person may incur.[59] As Baroness Hollis pointed out, "quite mild problems of mental health may generate quite high care needs in terms of supervision and attendance".[60] We recommend that the Government should urgently consider the extent to which indicators of severity should trigger benefit levels, or duration of awards, and undertake further research if necessary.

'Passporting'

32. The different rates of DLA can be a 'passport' to other benefits or services, so that a successful DLA claim can give entitlement to additional help, with the most help going to those on the higher rates of DLA.[61] Conversely, if DLA is withdrawn or reduced to a lower rate, linked benefits will also be lost. This point was illustrated by Mr James McDonald, a disabled person, who gave evidence to the Committee about the impact of having lost both the higher rate of the mobility component and the higher rate of the care component.[62] We recommend that the Government should consider how to ensure greater flexibility in 'passporting' arrangements, including ways in which DLA could be used to increase access to equipment and services.

All Living Test

33. The DLAAB report indicated support for exploring a possible 'semi-objective' quantitative 'All Living Test' along the lines of the All Work Test for Incapacity Benefit.[63] Professor Grahame stated that in the All Work Test 'an attempt has been made to quantify the degree of disability by an objective test'.[64] Mrs Davoud added that

"You cannot determine capacity for work by functional impairment alone. That said, some of the descriptors used in the All Work Test relate very much and could easily be adapted and utilised for an All Living Test. That means basically you are taking key daily activities and trying to ascertain what movement or what degree of function you need in order to be able to accomplish those key daily activities. According to that you would be grading them and according to that you might develop a test which would be simpler, more objective, a lot easier for the Adjudication Officers, it might simplify a lot of the problems we are facing at the moment. It would also save the burden of the claimant."[65]

Disability organisations were sceptical of this approach. Ms Lorna Reith, for the Disability Benefits Consortium, told us that :

"The All Work Test for Incapacity Benefit has been widely discredited. It is a functionally based test: can you lift a saucepan, can you move up and down stairs, stand and sit, and it does not bear any relation to the world of work. If the DLA Advisory Board are saying 'we will take this completely discredited model, the All Work Test, and we will call it an All Living Test and we will do something similar for DLA' then I am deeply, deeply pessimistic about it being of any use at all."[66]

34. DLAAB suggested that the gateway to DLA could comprise a two-stage process with initial eligibility decided on type of severe impairment, and the second stage based on degree of need. Benefit could be based on a single scale according to severity (as with disablement benefits under the Industrial Injuries and War Pensions schemes).[67] We recommend that the Government, with the Disability Benefits Forum, should review the relative merits of adapting the All Work Test, the activities of daily living used by the insurance industry and other functional assessments that a disabled person may undergo in this context. The Government should examine the scope for a single benefit for disability costs, with different rates, rather than separate components for care and mobility.

Rehabilitation

35. According to DLAAB, delays in rehabilitation could also have an impact on the need for DLA.[68] As DLA contributes to independent living as well as disability-related costs, disability assessments and the provision of services, cash, equipment and adaptations to the person's environment need to be tackled comprehensively. We recommend that the Government should convene a cross-departmental working group, separate from the Disability Benefits Forum, which should include interested parties outside government, to examine the many interactions between assessments and service provision for disabled people across health, community care, Independent Living Fund and local authority direct payments, access to goods, services and employment, and the role of disability benefits and the Social Fund in promoting independent living.

38 HC Deb 21 November 1990 vol. 181 col. 313. Back

39 A study of Disability Living Allowance and Attendance Allowance awards, DSS In-house Report No. 41, 1998. Back

40 Ibid. Back

41 Ibid. Back

42 Ev.p.5 para 4.4.2. Back

43 Appendix 4. Back

44 Appendix 7. Back

45 R. v. National Insurance Commissioners ex parte Secretary of State for Social Services, 1974, 3 A11 ER, 522. Back

46 Social Security Provision for Disability: A Case for Change?, Social Security Advisory Committee, 1997. Back

47 Ibid. Back

48 Mallinson v. Secretary of State for Social Security, House of Lords judgement, 21 April 1994. Back

49 Secretary of State for Social Security v. Fairey (aka Halliday), House of Lords judgement, 21 May 1997. Back