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Baroness Hollis of Heigham: My Lords, most of these regulations are tidying up and we welcome some aspects of them. We welcome Regulation 2(11)(b), involving a test of sitting in a chair comfortably. We welcome also Regulation 2(3)(a), which allows medical evidence other than from one's own doctor to be relevant, which may perhaps save the disabled person from seeking a judicial review.

However, I should like to ask the Minister about the implication of Regulation 27, which the Minister has suggested was merely fine tuning. That is not the understanding of the disability organisations, which consider that is an extremely damaging change. Their understanding of what this regulation does is at odds with what the Minister said in his introduction it was intended to achieve. Therefore, perhaps I may explain to the Minister how that regulation is being understood outside this House. If he can allay those fears and worries, that would be extremely welcome because at present, those organisations are extremely concerned about the implications of that regulation.

The current situation is that there are four exceptional circumstances in which a disabled person who does not pass the all work test can nevertheless be deemed still to be incapable of work. We understand that this regulation reduces that to three exceptional circumstances, therefore eliminating the condition that the person:

In everyday life, that means there are many disabling conditions which would not allow a person to score the sufficient 15 points on the all work test but would nevertheless have the practical effect of making it impossible for him to work without his health being seriously at risk.

In addition, we understand that a previously undiagnosed potentially life-threatening condition now has to be discovered by a BAMS doctor if that is to come into play. That really strains credibility. Perhaps the Government would give us an example. One wonders whether, if the GP has not discovered that condition, the sick person might have a claim for legal action against the GP should the BAMS doctor discover such a condition.

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We are particularly worried because the all work test was drawn up after careful evaluation. It was found to be essential to have those four safety nets in place simply because the Government have insisted, for the incapacity benefit, that there should be a test which is dependent on current functioning physical capacity--lifting a hat, walking upstairs, walking along a road, bending, carrying a sack of potatoes and so on. Therefore, such current functioning capacity cannot take into account such considerations as the effect of work on continuing health.

Older people, especially those aged over 55, are vulnerable under this provision where the effects of ageing interlock with a deteriorating condition. The disability organisations fear that the Government may be reacting hastily and that they may be acting vindictively because of the Moule case, and they are worried. The Minister will know that in that case, a young man with a very severe skin condition failed the all work test and would have been judged capable of work except that the adjudication officer decided under Regulation 27 that a severe skin condition meant that his mental and physical health might be affected adversely if he were required to work. The BAMS doctor decided that Mr. Moule did not qualify under Regulation 27 and the adjudication officer felt obliged to follow the doctor's opinion, given the wording of the regulation.

Mr. Moule challenged that in the High Court by judicial review. Mr. Justice Collins found that the regulation was indeed ultra vires because it displaced the role of the adjudication officer with that of the BAMS doctor and that that ran contrary to statutory procedure.

I understand that the Government are appealing the decision, but it is right that the law should be clarified on that point. Nevertheless, we believe firmly that the Government must either change the functional capacity all work test or allow all the exceptional grounds to remain, including the exception in relation to the effect of work on a deteriorating health condition; otherwise, we warn the Government that they will face a series of embarrassing judicial reviews and court cases which, I am advised, they may well lose.

More generally, it cannot be right that the position of someone who is already in poor health should be substantially worsened by their being required to work simply because they cannot pass an incapacity test which most of us regard as being both inappropriate and inadequate but which the Government have persisted in despite much evidence to the contrary.

Earl Russell: My Lords, as regards Regulation 27 and related matters, the noble Baroness has spoken for both of us. The only other comment I have to make is to welcome the change in the definition of "a close relative", which pretty well exactly repeats the terms of an amendment I moved during the passage of the Bill a long time ago. You never know when you are going to be lucky!

Lord Mackay of Ardbrecknish: My Lords, I wish that I had the noble Earl's depth of historical stories in order to top the expression, "You never know when you

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are going to be lucky". Nevertheless, I hope that I can persuade the noble Baroness and the noble Earl that their fears and those of outside organisations regarding Regulation 27 are ill founded. As I said earlier, the reason we have had to take the steps outlined in Regulation 27 relates to a recent decision of the High Court. That ruling means that the exceptional medical circumstances provision must now be applied by lay adjudicators where we previously thought it should be applied by the BAMS doctors. That lay adjudication can be applied without any need for medical input, yet the judgments themselves, as the noble Baroness clearly explained, require medical judgment. Therefore, it is important to ensure that such judgments are based on medical evidence.

We should not lose sight of the fact that the provisions need to be considered only where people have failed to satisfy the all-work test. They are intended to cover "exceptional circumstances". The provisions were intended to be applied by qualified medical experts. We now feel that they need to be more precisely defined in the light of the court's ruling that an adjudication officer, a lay adjudicator, ought to make the decision.

The regulations previously referred to a,

    "severe uncontrolled or uncontrollable disease".
Medically, such a disease would have potentially life threatening consequences. That was reflected in the guidance for examining doctors. The amendment defines this "exceptional circumstance" provision more precisely in the light of the High Court judgment. But we are satisfied that it will not exclude anyone whom we originally intended to be covered. We are redefining the provision more precisely in the light of the court's decision. But, as I said, it is not our intention that anyone who would have been covered originally should now be excluded.

In the case of a physical disease, the substantial risk criteria applies to people with a life-threatening uncontrolled or uncontrollable disease. As a further safeguard in mental health cases, the new definition of "severe mental illness" for the purpose of the exempt categories means that doctors will need to consider carefully whether the criteria for exemption are met. The possibility of exemption will need to be considered again during the all-work test examination. In particular, the doctor will consider whether a person's mood or behaviour is so adversely affected that his ability to function socially is severely restricted or that he is very likely to pose a real danger or a threat to others such as work colleagues or members of the public. In such cases, the doctor will consider advising that the client meets the criteria for exemption on the grounds of severe mental illness.

Where a person has recently been receiving treatment and there is evidence that he has a mental disease which is at present uncontrolled to a degree that he might represent a substantial risk to his own life, an exceptional circumstance would apply. I should stress that the risk could arise either from self-harm or self-neglect.

As originally drafted, the exceptional circumstance criteria could be applied only on the recommendation of a BAMS doctor. While the adjudication officer must still take account of the opinion of the BAMS doctor, he

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will in future be able to consider other medical evidence, including any provided by the claimant's GP. He may prefer such evidence if he considers that it outweighs that of the BAMS doctor.

I hope that I can assure the noble Baroness that we are satisfied that the people who were intended to be covered by the original position will still be covered. The IB handbook has been amended to take account of the changes to the detailed wordings of the regulations, but the advice is entirely consistent with the original intended coverage. The consideration is essentially a medical one and the approved doctor will be required to consider for every client examined whether the individual circumstances justify the application of these criteria.

The department issues detailed guidance to approved doctors on this area of the IB regulations. There it is. The BAMS doctor will still need to consider the individual clinical circumstances and the treatment in order to judge whether a person's disease is likely to remain controlled for the foreseeable future. In giving that advice, the doctor will assume that the person will be found capable of work because the exceptional circumstances are considered only where people fail the test. If the doctor considers that the disease would be uncontrolled in such circumstances, he should advise the AO that an exceptional circumstance applies. I know that we are discussing a complicated issue, but I hope that the assurance that I have given allays the fears which the noble Baroness expressed on behalf of some outside bodies.

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