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Earl Russell: I told the Minister when I gave notice of my intention to oppose the clause that my intention was probing in the first instance. I regret that the Minister has told me in the past few minutes some of the points I was probing to discover. She said in relation to Amendment No. 120 that the substance of the all-work test and the regulations under which it is imposed would remain unchanged. And in relation to Amendment No. 119, she said that the score is quantitative--15 points and you pass. That will remain unchanged. In effect, the Minister has told me that the points that I regard as the worst features of the all-work test are to continue. I was very sorry to hear that.

Of course, we agree on the point that the Minister has just invoked. We agree that it is a good thing that a test should look at what people can do as well as what they cannot do. However, the Minister may not quite understand that my objection to the all-work test has always been its formulaic quality. It is qualitatively very much the same line of argument as exists between us, and will continue to do so, on the CSA.

The record of the all-work test is an extremely poor one. The Minister is familiar with the incapacity benefit leavers tracking study. That indicates that it is a very poor predictor indeed of people's future chance of obtaining work. People who are found unfit to work are just as likely over the next few years to obtain work as those who are found fit to work. That does not suggest to me that the test is doing its job very effectively. My noble friend Lord Addington referred a moment ago to the number of appeals. Some 60 per cent of those who have their benefit disallowed appeal. Of those who appeal, more than 52 per cent have their benefit reinstated. Apart from the tracking study evidence, that alone suggests that the test is not doing its job particularly well.

There are a number of good reasons for this. Some of the main reasons that people are prevented from working are ones that a quantitative test cannot measure. In particular, a quantitative test cannot measure pain. There are days when one feels that pain can be measured in decibels, but unfortunately that is not true. Pain is probably one of the biggest factors that prevent people

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from working. I do not see how one can quantify by a test acute back pain or migraine, yet those ailments prevent people from working.

The test cannot quantify fatigue. However, with acute respiratory illness, which is one of the conditions that frequently prevents people from working, fatigue over a period of time usually makes work impossible, unless it is carried out in small amounts. A test cannot measure endurance. A test by its very nature can test only once the capacity to perform a certain function over a limited period of time, but any attempt to do serious work must involve the ability to go on conducting the function over a period of hours, days, weeks and months. No quantitative scoring test can possibly assess these matters. These are quite important defects.

The other problem, which the noble Lord, Lord Higgins, attempted to address in Amendment No. 120, is that there is not a single activity known as work. I apologise to the noble Lord for not assisting him, but I did not think that I should say the same things twice. If one looks at the occupants of the mobile Bench in this House, to say that they are incapable of work is manifestly absurd, yet there are many types of work for which they are unfit. One can assess a person's fitness for work only in terms of the work of which he or she is physically and mentally capable. I take the case of the unemployed former miner or ship-builder referred to by my noble friend Lord Goodhart at Second Reading. It is no use telling him that there is a lectureship in Egyptology at the University of Newcastle-upon-Tyne. He is not qualified for it. It is probably no use telling him that there is a vacant job as a computer operator.

Training can do many things, but as years go on it becomes true that one cannot teach an old dog new tricks. There are exceptions to that, but one will not know in advance what they are. Therefore, there is no such thing as being fit for work. One may be fit for particular types of work while one is totally unfit for other types of work. One must consider whether the person is fit for any work that he or she is capable of doing. One must give up using a formula and, like it or not, face up to the fact that people are individuals and are very different from one another. If one is to test for fitness to work and regard people as individuals, even if one uses a scoring system--although I have deep misgivings about such a system, it may be part of a relevant assessment--one must rely on an assessment of the individual by a medical practitioner, or practitioner, at rather greater length than is usually possible in the all-work test. One must look at the whole person in the whole situation. If one does not do so, one will continue to make mistake after mistake.

Lord Higgins: Perhaps I may add to the remarks of the noble Earl. I understand that Clause 56 ensures that the Government will replace the all-work test with a personal capability assessment. The assessment will effectively consist of the existing test plus some additional questions on the person's capability for work. But it is well known that the all-work test as it stands--the Government will continue that as part of the assessment--is open to considerable criticism. So much so, that, for example, the National Association of

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Citizens' Advice Bureaux has suggested that the proposals in the clause should be rejected and a more satisfactory test introduced which is more related to the work situation and less stressful for the claimants. In support of that view the CAB produces considerable evidence which states that some 60 per cent of people have had their benefit disallowed as a result of failing the all-work test and have appealed against the decision. Of those who appealed more than half had their benefits reinstated either as a result of the appeal tribunal or because the adjudication officer changed his view.

In addition, it cites a number of examples. I shall not weary the Committee at this time of the night by quoting them at length. It refers, for example, to a client who failed the all-work test, but the examining doctor insisted that his answer to every question relate to a good day when in fact he had some days when he felt well and others when he felt unwell. A London CAB reported a client who failed the all-work test after an interview which lasted only five minutes. The situation reported to me by former constituents suggests that the integrity of the test is open seriously to doubt. It is not unusual for it to be conducted in a less than sensible manner and that is unsatisfactory.

It would be helpful if we could have the views of the Minister on how this fits in with the lengthy debates on the single focus gateway. It arose on a previous amendment. We are told that these interviews will be very extensive and may last up to an hour. The staff will be heavily trained, and so on. In comparison, these interviews seem to be conducted on a superficial basis. Perhaps the Minister can tell us to what extent she has received reports that those investigations are not carried out satisfactorily. Can the noble Baroness also tell us in simple terms how the continuation of the all-work test, now called personal capability assessment, will fit in with the arrangements for the single focus gateway intervals? I am not clear how this fits together. It would be helpful to know.

Baroness Hollis of Heigham: I was not surprised that the noble Earl, Lord Russell, criticised the all-work test. I was a little surprised at the stringency of the criticism of the noble Lord, Lord Higgins. He was deeply critical of something his own government introduced--was it only four years or so ago?

The basic criticism of the noble Earl, Lord Russell, was that the all-work test was formulaic: that it analysed matters which could be counted rather than those which could not. It is true that the test is based on the mechanical functional capacities of individuals: whether one can lift a bag of potatoes, climb the stairs, and so on. The noble Earl is right on that. Where I think he is not necessarily correct is in his belief that doctors are not required--they are--to take full account of pain, fatigue, and fluctuating conditions. It is because the existing all-work test, with its points score of 10 for mental health problems and 15 for physical health problems, emphasises what people cannot do and therefore does not see the whole person and is not holistic that we seek to introduce the other half, the personal capability assessment, in order to ensure that

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we have full and proper information about what a person can do as well as their functional capacities and what they cannot do.

It is true that the survey referred to by the noble Earl shows that we have to do more. That is right and it is why the Government strengthened not only the Disability Rights Commission, which was long overdue, but has introduced a new deal for disabled people, the disabled person's tax credit, linking rules from eight to 52 weeks and so forth. We take the criticisms that disabled people still find it hard to go into work even if they are coming off incapacity benefit. That is why we are seeking to make those avenues possible.

Thirdly, the noble Earl criticised the doctors' interviews, based on the CAB reports. I have no reason to criticise the CAB's statement that a certain interview took only five minutes, but my information is that the average doctor's interview lasts for 40 minutes. If there is criticism that the interviews have been cut short, or the claimant feels that he has not been treated properly, or his condition not properly assessed, that person should seek to complain through his MP, the CAB and so forth.

I asked to see in what proportion of interviews there was a follow-up complaint by the person or his carer that medical examination by the doctor was inadequate, incomplete, failed to consider certain functions and so forth. I found that about 500 complaints were made, or less than half of 1 per cent of all interviews conducted by those doctors. Perhaps people were inhibited about making those complaints, but it shows that, with obvious exceptions, for the most part people regard those medical interviews as basically satisfactory.

I hope that I have addressed the points raised by the noble Earl, but if I have not I should be happy to write to him with further details.

11 p.m.

Earl Russell: I thank the Minister for that reply. She was a little ungenerous to criticise the noble Lord, Lord Higgins, since if she had listened carefully to what he said she would know that he was confessing plainly to having learnt from experience through cases in his constituency. That is something all of us have to do and if the noble Lord has done it I am glad that he has.

I am aware of the instructions the Minister quotes about the need to take account of pain and fatigue, but it seems to me to be in potential conflict with the assessment of incapacity simply by a numerical score on the list. I do not see how those issues can be reconciled, and in practice the numerical score takes priority.

I understand and respect the Minister's determination to do better. It is exactly what she says on the CSA. In both cases, she will not do better, however hard she tries, because she is barking up the wrong tree. You simply cannot do it by this formulaic approach.

The clause stand part debate has been an ideal vehicle for probing what the Government wanted to do, but a Division deleting the clause would not achieve my objectives. Therefore, I must think hard before the Report stage about the drafting of an appropriate

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amendment to get rid of a test which was from the beginning misconceived and has been proved by experience to be a disaster. Therefore, looking forward to a better amendment and a new engagement, I beg to withdraw my opposition to the Question that the clause shall stand part of the Bill.

Clause 56 agreed to.

Clause 57 [Incapacity benefit: restriction to recent contributors]:

[Amendment No. 124 not moved.]

On Question, Whether Clause 57 shall stand part of the Bill?

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