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“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, 24 October 2006; c. 162.]
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.
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Mr. Redwood: 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?
Mr. Hunt: 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.
Roger Berry (Kingswood) (Lab): It is a pleasure to follow the hon. Member for South-West Surrey (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. The hon. Member for Inverness, Nairn, Badenoch and Strathspey (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.”—[ Official Report, 8 January 2007; Vol. 455, c. 9-10.]
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.
Mr. Boswell: I welcome very much the new clause, the measured tones with which the hon. Member for Inverness, Nairn, Badenoch and Strathspey (Danny Alexander) introduced it and the substantial speech, which included important additional matter, in support of the new clause from my hon. Friend the Member for South-West Surrey (Mr. Hunt).
It is also a pleasure to follow the hon. Member for Kingswood (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.
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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.
Mr. Gordon Marsden (Blackpool, South) (Lab): 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.
Mr. Boswell: 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 the hon. Member for Blackpool, South (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.
Danny Alexander indicated assent.
Mr. Boswell: 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—
Mr. Deputy Speaker (Sir Michael Lord): Order. I trust that the hon. Gentleman is referring to new clause 1 only briefly because it has not been selected for debate.
Mr. Boswell: 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 the hon. Member
for Hendon (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.
Danny Alexander: 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.
Mr. Boswell: 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.
John Robertson (Glasgow, North-West) (Lab): 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
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