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Lord Mackay of Ardbrecknish: My Lords, in the limited time available I shall try to answer as many questions as I can. If I do not refer to the noble Lords who have asked questions, I hope they will understand that other noble Lords have asked the same or similar questions and that mentioning everybody by name would take some time.

One of the themes common to many of the interventions in this debate was the question of defining some of the descriptors in the schedule—for example, time, pain, stress and fatigue—and how those factors would interact with the descriptors. Perhaps I may try to explain. In assessing someone for the all work test, the BAMS doctor will take full account of the history and evolution of the medical condition. Your Lordships will remember that I mentioned that, in addition to the filling in of the form, the GP will be asked to report on his or her patient to the BAMS doctor on the actual effect that the medical condition has on the patient's daily life and normal tasks over a period of time, and the limitations which are imposed.

In choosing one of the descriptors in each of the areas of activity in the test, the doctor must also describe and justify his choice in terms of the pattern of any variability or fluctuation, and the effects of pain and fatigue. This point has been particularly emphasised in the training which the BAMS doctors are receiving. In other words, it is not a snapshot; it is actually looking at the condition and looking at the effects over time. I hope that that answers at least some of the points made

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about specific problems which may not be very severe if looked at for one second but over time can in fact be severe, or can be intermittent.

Mental health problems do fluctuate. One point that was put to me was whether these fluctuations will be taken into account. As I have said, the test is not a snapshot, and of course the medical evidence from the claimant's GP will be carefully considered by the BAMS doctor. The assessment of the mental health problems will consider the mental history and the day-to-day functional effects of the condition.

Play was made with the definition of the word "severe"; when does a problem become severe? Severity of a condition will be considered on the basis of the clinical information available from the claimant's own doctor. A BAMS doctor will assess the information against the criteria covering the diagnosis and affecting the condition, and the effect that the condition has on everyday activities and care needs. And, of course, treatment is another point that has to be borne in mind.

I have been asked on a number of occasions about the threshold of the benefits, the threshold that one must reach in order to obtain the benefit, and there have been some rather over-exaggerated definitions of what happens when someone gets to that threshold. The threshold is set at a level where it would be unreasonable for a person to be expected to work rather than where work becomes impossible. A person who does not satisfy the test is not necessarily capable of all work but is certainly medically capable of some work—very probably a considerable range of work.

The role of the test is not to place people in jobs; the role of the test is to decide whether people can undertake jobs and are medically capable of doing so. The employment service will then come into play to help the person search for work, taking into account his or her skills, experience, availability for work, education and other physical constraints.

The noble Earl, Lord Russell, asked the question about the person with no sense of smell: if he refused a job as a wine taster would he be refused benefit under the jobseeker's allowance? I am not sure whether the noble Lord was trying to be facetious, but the fact of the matter is that people—and this includes people who would never consider that they were in any way eligible for this particular benefit—who have some form of disability or some form of restriction of what they can do, will be asked to say what that is and that will be agreed. The medical conditions are one, so that anybody with no sense of smell, for example, who was offered a job as a wine taster—which I doubt would happen—and refused it would not promptly be struck off the JSA register and left without benefit. I want to be quite clear about that. Just because people pass this test, and indeed just because people are unemployed, does not necessarily mean to say that they can take any job that is available—from a professorship of modern history down, or up, depending on where one starts looking at it. I hope that that will be of some comfort to noble Lords who were particularly concerned about that point.

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I was asked about rheumatoid arthritis and whether sufferers will be exempt. Exemption is not based on the diagnosis. It is based more on the severity of the medical condition. Full account will be taken of all the medical factors. Those with severe manifestations of rheumatoid arthritis are likely to be exempt. Anyone who looks at the various descriptors and knows someone who has rheumatism of a severe nature can easily see how he or she would quite quickly get to 15 points. If one looks at the scores and the descriptors, it will not be all that difficult to get to 15 points.

My noble friend asked me about the amending regulations which are to come. I do not want to list all the various matters that are to come but perhaps I may give an example. We want to uprate the therapeutic earnings limit to £44 and we wish to clarify the wording of the immune deficiency exempt category following some comments we have had from the Terrence Higgins Trust. We want to enable people acting as unpaid advisers to organisations representing disabled people to sit as medical assessors on appeal tribunals, following comments we have had from the independent tribunals service. There are a number of other issues of that nature. None of them will affect the principles behind the proposal but they will be detailed matters which we think ought to be put right.

The noble Baroness, Lady Darcy, asked me a number of questions. I probably nearly answered one of her questions in my comment to the noble Earl, Lord Russell. If someone is judged to be capable of work and he then goes to either unemployment benefit or, in the future, JSA, there will not be a different decision made. In fact, he will be taken on to the JSA register if he has been found to be capable of work under the test we are considering. He will get advice and help to search for the kind of job that will suit his capabilities and his physical and mental abilities, as every person seeking work does. People who appeal against a decision that they are capable of work may register as available for work and qualify for unemployment benefit or income support pending the outcome. Doing so will not prejudice their appeal. If some people feel that they are unable to declare themselves available for work because they think it might prejudice their appeal, we are looking at ways to allow income support payments pending the outcome of any appeal. National Insurance credits are automatically awarded to people receiving benefits for incapacity and those registering as available for work. If someone is found capable of work, credits will normally cease until he registers as unemployed with the service. That he can do even if he is appealing against the decision that he is capable of work.

The noble Earl, Lord Russell, and a number of noble Lords asked how age fits into this. The test is a measure of the effect of the medical condition. The noble Earl pointed out to me that the effect of the same medical condition can be worse when one is older. That is exactly the point. The test measures the effect. So, while a young person with a disability may certainly be able to walk, say, 400 metres without stopping and an older

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person can walk only 200 metres, that is allowed for and different points will be scored. The effect of ageing on conditions is taken into account.

Earl Russell: My Lords, can the Minister say whether the test allows for how many times in the day one could repeat that performance?

Lord Mackay of Ardbrecknish: My Lords, I mentioned earlier on that the medical people will take into account not just the snapshot but the effect of the disability over time.

I was interested in the speech of the noble Lord, Lord Rea, because in many ways I thought that he came to my defence and gave evidence on my behalf in this regard. He clearly showed that many GPs were issuing medical certificates to people who were not sick, or at least were certainly not too sick for work, and that they were in fact people who were moving off the unemployment register. There is no evidence that anyone encouraged that to happen. That was one of the effects of the way the benefits system was, with the GPs being left with the difficult decision of acting as gatekeeper. I can understand that, if they were confronted by someone who had been their patient for a long time, we were asking them to do an extremely difficult job in acting as the gatekeeper.

Anyone who studies the descriptors, the physical disabilities and the list and sees how the system is being devised will quite readily see that someone who has a severe disability—a disability that would prevent him working—will quite readily attain the 15 points needed. As I said at the beginning of my speech, not only do we think that this will be a fair and proper test to conduct but it will also be one that will concentrate the benefit on the people for whom it is intended: those whose incapacity for work is due to a medical condition and not due to some of the other conditions which my noble friend has stipulated in his Motion. Having listened to me, I hope that my noble friend will appreciate the good sense of what is being proposed in the regulations and will withdraw his Motion.

8.28 p.m.

Lord Swinfen: My Lords, I am grateful to those who have taken part in the debate on my Motion and I thank them for their attention. The noble Lord, Lord Rea, said that he thought that if the House were to agree this Motion it would be of terrific benefit to the Conservative Party. That would be a mere by-product. It was not my intention at all. It is a matter of principle and that is not something that I had thought of. It possibly shows that I am a bear of little brain.

The Minister suggested that people taking early retirement were using invalidity benefit to boost their pensions. That matter could be quite easily dealt with either by primary or secondary legislation. I understand that there is no evidence that people in the older age groups are using the benefit as a form of additional pension. The Department of Social Security's own statistics show that the proportion of male claimants aged between 50 and 65 has decreased from 67 per cent. of all male claimants in 1977-78 to 56 per cent. in 1992-93. Contrary also to what my noble friend said,

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the Department of Social Security's research and the research of the Policy Studies Institute show that the growth in claims has more to do with people staying longer on benefit than with an increase in the number of new claims.

I do not want to delay the House because Members will wish to get back to the Environment Bill. However, my noble friend also said that amazing figures were being bandied about. He himself, I thought, was doing that this evening, claiming that my amendment would cost some £10 billion by the year 2000. My noble friend shakes his head. That was the impression I got. If he is relying on the Treasury for his figures, I am not at all surprised that they are wildly inaccurate.

This is a matter of principle and therefore I feel that I have no alternative but to move my Motion.

8.30 p.m.

On Question, Whether the said Motion shall be agreed to?

Their Lordships divided: Contents, 49; Not-Contents, 71.

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