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Grand Committee

Wednesday, 28 February 2007.

The Committee met at fifteen minutes to four of the clock.

[The Deputy Chairman of Committees (Viscount Simon) in the Chair.]

Welfare Reform Bill

(Second Day)

The Deputy Chairman of Committees (Viscount Simon): If there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Clause 8 [Limited capability for work]:

Lord Skelmersdale moved Amendment No. 32:

“( ) provide for the presence of an intermediary in necessary cases;”

The noble Lord said: I start the afternoon in a happy frame of mind with a very brief series of amendments. In moving this amendment, I shall speak also to Amendments Nos. 44, 54, 64 and 71—I hope that I got that right this time; I obviously got it wrong towards the end of our previous sitting.

These amendments are intended primarily to confirm what the Minister stated at Second Reading about having a supportive representative at assessments and interviews. I observe that a different Minister will respond to this amendment—and perhaps to the rest of Part 1; who can tell? I am glad that the Government intend to allow a claimant to bring someone along to support them at what could be a stressful and difficult time. There are practical advantages. A blind person who does not know how to read Braille might, for example, prefer to have someone they know rather than a stranger read for them. Similarly, those suffering mental disabilities or learning difficulties might be reassured by the presence of someone familiar. I am glad that the Government appreciate the benefits of having an intermediary and am interested to learn how, as the noble Lord, Lord McKenzie, stated, the Government intend to “encourage” representatives to attend. Do they also intend to continue allowing the presence of an intermediary at work-related interviews, or do they intend to restrict them to assessments only? I beg to move.

Lord Addington: The noble Lord has once again raised an interesting matter. Will this include someone with literacy difficulties, such as dyslexia, or who has failed to achieve certain academic standards? In either case, allowing a person to have someone present whom they trust to help, as opposed to an official, would be beneficial. I raise this as a result of a visit I made to Chelmsford prison, where there are many people with very poor literacy, due mainly to dyslexia. They said that one of their difficulties was

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the inability to admit the problem, which immediately placed them in a confrontational situation that was exacerbated by some of the guards. This may be slightly off the Minister’s brief but such people will go through this system and if we fail them, we will fail a large number who will make their small contribution to the reoffending rate. It would be helpful if we could have guidance about how someone could be brought in, often in an informal manner, to help them through these interviews; that might also allay concerns I may have about later parts of the Bill.

Baroness Morgan of Drefelin: I hope to start this afternoon by being quite brief. I recognise the noble Lord’s concern for the well-being of vulnerable customers. That underlies these amendments, which make provision for an intermediary in necessary cases. I hope that I can persuade noble Lords of the Government’s intentions about encouraging intermediaries or advocates to accompany any employment and support allowance customer.

Considering first the personal capability assessment, we all agree that it is important to gather the right evidence during any stage of the PCA process, whether they determined limited capability for work, limited capability for work-related activity or the work-focused health-related assessment. That is necessary to allow an accurate assessment of the customer's functional limitations and capability.

The need to gather appropriate information also extends to the face-to-face medical examination and the work-focused health-related assessment part of the process. To identify the health interventions that would help the customer into work, we need to have accurate information. Indeed, for this part of the process, the customer's perception of the effect of his or her condition is a key part of the assessment. Healthcare professionals carrying out PCA examinations will be trained, among other things, in appropriate interview techniques, and how to treat customers sensitively and with empathy.

Of course, people with mental health problems or a learning disability, for instance, may find it very difficult to articulate at a face-to-face interview the full extent of their difficulties. We do not want anybody to lose out on benefit entitlement because they cannot give an accurate picture of themselves, their condition and the limitations that it places on their functional ability.

It is entirely reasonable that such people or any other customer should be able to make use of a spokesperson on their behalf: perhaps a member of their family, or a care worker who knows them well. As the noble Lord, Lord Skelmersdale, said, my noble friend Lord McKenzie made it clear during Second Reading on 29 January that the facility for them or any customer to do so already exists. It is already established practice in all examination centres. Customers are informed—I think this is what the noble Lord, Lord Addington, was looking for—when their appointment is confirmed that they can bring a representative or companion with them if they wish.

On work-focused interviews and work-related activity, we will build on our good practice in Pathways areas.

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There, we encourage intermediaries to join customers when they engage in help and support. We also take steps to make sure that our customers can access our services. In introducing work-related activity, we will build on the support in place in Pathways to Work areas and we will ensure that similar procedures are in place as now. We will also continue to consider how best all our services can be accessed by all customers and, where necessary, we will not hesitate to review procedures.

My note reminds me to add that, yes, anyone can have a representative at any of the interviews that I mentioned. I hope that the Committee will be reassured to know that the presence of intermediaries is both firmly embedded in the normal procedures for providing help and support during the PCA and in Pathways currently, and an integral part of our plans for the future. It is not necessary to make provision for this in the Bill, as the amendments would do, but I welcome the opportunity to put that on record. I urge the noble Lord to withdraw the amendment.

Lord Kirkwood of Kirkhope: this is an important amendment and I support it. The problem is that the provisions are currently deeply embedded in the documentation. Language difficulties make the situation even more difficult. At the moment, customers—claimants—“can” and “may” bring intermediaries but, because the Bill is introducing a significant cultural change, we should move the system from “can” to “should”. We should encourage people to bring buddies or members of the family with them at all times. Research shows that when people are in a situation with which they are more comfortable, the system has a much better chance of getting the best quality evidence, which it needs to discharge the application. It is not just about ethnic minorities who have difficulty with comprehension of the language; nor is it about medical physical disabilities; it is actually a cultural shift.

The guidance given in advance of this change must make it clear that people should be encouraged to bring people with them. If you are in any doubt, or you are just feeling nervous about confronting bureaucracy, you should be encouraged; there should not be a permissive power embedded in the fine print. That is a very, very important part of getting this reform right. There is a danger that the officials may think, “Well, we’ve got this covered, because it has always been there and there is nothing wrong with it”. In the past it served well, but the situation is so changed and so complicated that it would pay dividends, and would cost the department nothing at all, to encourage people and to say to them, “You will bring someone with you if you are unsure”. That approach would be a much more positive way of getting the results that we are all trying to seek in this reform.

Baroness Meacher: I support that strongly. It reminds me that in tribunal hearings, if an applicant has a friend or buddy with them, the success rate shoots up—it is significantly higher.

Baroness Hollis of Heigham: It is 70 per cent.

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Baroness Meacher: It is 70 per cent, compared with 50 per cent. We are talking here about entitlement to benefits, which is of tremendous importance to the individual. The noble Lord, Lord Kirkwood, has made an important point.

Baroness Morgan of Drefelin: I would support the sentiments behind the noble Lord’s comments. The point that I was trying to make from my speaking notes is that it essential that the best information possible is obtained from customers through the PCA process. If they need and want to have someone with them to support them in that process, there will be a much more successful information-gathering process. We are talking about an enormous cultural change. There will be significant developments in terms of training, personal advisers and other people who undertake the interviews.

It is important to ensure that we are not prescriptive about people having to bring someone with them; sometimes people will not wish to do so. Customers must be made aware when their appointment is being arranged that they can, and are welcome to, bring someone with them to support them. I support the sentiments behind the comments that have been made and it is important that that is put on the record.

Lord Skelmersdale: It occurs to me that we are all singing from roughly the same hymn-sheet—which is very healthy. The noble Lord, Lord Kirkwood, supported by the noble Baroness, Lady Meacher, said that all this was deeply embedded in the system. The trouble is that it is so deeply embedded that it has become rather obscure over the years, and I am delighted that the Minister has been able to say that in the call for the primary interview, it will be pointed out that the person may bring a friend—I would say, “intermediary”—with them. My only question to the noble Baroness is: how will that point be made? Will the call for interview be in writing or by telephone? If it is by telephone, it is much less likely that permission to have an intermediary will be given on every occasion.

Baroness Morgan of Drefelin: In truth, we have said—or are going to say—that it is important that communication with customers is tailored towards the customers’ needs. Unless I am corrected, I am not sure that we are being prescriptive in that; but I will come back to that matter if I am wrong.

Lord Skelmersdale: I am grateful to the noble Baroness. As I said, we are all close to singing from the same hymn-sheet. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4 pm

Lord Skelmersdale moved Amendment No. 33:

“( ) make provision as to the timing of the assessment in relation to the assessment under section 9.”

The noble Lord said: I am afraid that we now have the exact opposite. The amendment is far from a

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quickie, and I apologise in advance for the length of my remarks. I shall speak to Amendment No. 41 as well.

Since carefully reading the debates we had on the first day of Committee, I am aware of the misapprehension I was under when I drafted the amendments. As Ministers will have realised, an amendment to Clause 10 is missing. The ones I have tabled, however, refer to the two strands of the PCA. Amendment No. 33 relates to assessing limitations for work in Clause 8 and Amendment No. 41 relates to assessing limitations for work-related activity in Clause 9. When I tabled the amendments, I was under the impression that these were the two tests that were to be taken on the same day and were causing lobby groups so much worry. I now understand that my amendments should have included the assessment in Clause 10, which deals with work-focused, health-related matters.

Given the enormous confusion that this area of the Bill has led to, I hope Members of the Committee will forgive me if I take a moment to set out my understanding of the assessments in the hope that if I am still mistaken in any aspect of them, the Minister will take the opportunity to correct me. Otherwise, we will have a very long Report stage.

The first interview, or test, is to contain the two assessments laid out in Clauses 8 and 9, each assessment being undertaken by a trained healthcare professional appointed by the Secretary of State, and one taken immediately after the other. This work, I understand from the Minister’s letter of 23 February, is to be contracted out to Atos Origin, the same firm which has designed the computer system and whose staff are to be—or are they already?—trained as healthcare professionals.

This first interview’s primary purpose—possibly its only one—is to assess whether a claimant is eligible for ESA by means of assessing the effect of a long list of fairly general descriptors and whether that same claimant is eligible for the support group by means of a list of 46 functional descriptors. So far. so good.

My understanding of the second interview is a little less clear. This interview will be the first introduction to the work-related activities in which the majority of claimants will be expected to participate. The Government appear to be favouring the idea of having this interview on the same day as the first one to reduce the inconvenience of travelling to the testing centre but also to allow the benefit provider to introduce the claimant to the new system as soon as possible and start early intervention to overcome any barriers to work or work-related activities there might be.

I hope that the above explanation of the assessment is correct and look forward to any clarification that is necessary. However, this explanation raises many more questions, as does much of what we heard on the first day. The noble Lord, Lord McKenzie, explained at cols. 49 to 52 that the second interview—the work-focused, health-related assessment—will be undertaken by a healthcare professional. Information from this assessment will then be provided to the personal adviser who will have different and appropriate skills in overcoming

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societal barriers, low self-confidence in knowledge of the work available in the area, and so on. That is in marked contrast to what his colleague, Mr Murphy, explained on Monday to the All-Party Group on Disability, when he said that the second assessment would not be undertaken by a healthcare professional but instead would be an opportunity for an employment adviser to become involved.

I am sure that I am not the only Member of the Committee who is confused on this issue. Who are we to believe? Are the Government still undecided who will conduct the work-focused interview? It would be helpful if we could have a definitive statement. I, for one, do not want to have to return to this matter on Report.

The confusion becomes even deeper when we return to how the decision-maker will make his final decision. From what Government officials had said, I was under the impression that information from both interviews would be considered relevant to the eligibility status of the claimant. But if, as I understood the Minister to say last week, a decision on the eligibility of the claimant to the higher support rate is made immediately after the questionnaire and the original interview have been completed, that cannot be right. Which of these is correct? Or will it merely be information from the assessments as laid out in Clauses 8 and 9, as common-sense would suggest?

I am afraid I also have many questions about the decision-maker. Although I asked them last week, they were not answered satisfactorily. I shall have another go. It appears that the decision-maker will take all relevant information and evidence, the notes from at least the first assessment, any information from the claimant’s doctor and so forth, and make the final assessment without ever having met the claimant. Will he be making decisions only on borderline cases? What qualifications will the decision-maker have and how will he or she be chosen? How many of these decision-makers are the Government planning to have? Will there be one for every jobcentre office or will they have little contact with the assessors, let alone the claimants? These questions are critical to the understanding of my two amendments. I seek to maintain some distance between the first interview—I am avoiding the word “assessment” deliberately—in order to distinguish between the three clauses and the two interviews, and the second one.

I think the Government have indicated that it is their intention to hold these two tests, should they be deemed necessary, in as short a time as possible, one immediately following the other early in the 13-week assessment phase. This has caused considerable concern, especially among those working with mentally disabled people who are worried about the possible effect this could have on a claimant. They point out that the first test will be focused on what a claimant cannot do, whereas the second test is designed to look at what he can do. Even if the second test will have no effect on his eligibility, confusion about what it will have an effect on could lead to considerable stress. A claimant may very easily become concerned about being too optimistic in the second test about what work-related activities he

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could undertake, which would lead the decision-maker to doubt how sincere he was about his limitations in the first test.

I understand the Government’s point that many people with disabilities would prefer not to have to make two journeys when one would do. If a claimant has limited mobility, they would probably rather the interviews happened on a single day, as the Government have suggested. However, this will not be true for everyone. Some may find the interviews exhausting or stressful and would prefer to spread the load over a few days. Can the Government commit to a more flexible timetabling of these interviews where the claimant will be able to signal a preference for having the two tests on the same day or otherwise, as appropriate?

I am afraid there is a further point I wish to make: the Government have indicated that some claimants will evidently be unable to attend either of the face-to-face assessments. This could be because they are confined to hospital. In these cases, written evidence from their doctor will be sufficient for them to be moved straight into the support group. There is some confusion over how widely this will be applied. Will it be the decision-maker who judges the written evidence and makes the decision that further assessments will not be necessary? If not, who will do this? Can the Government explain what criteria will be set for this to happen? Will it only be for those with severe physical disabilities or will those with certain mental illnesses also be considered?

This Committee stage has been, is, and will be dominated by probing amendments. It is unfortunate that although the Bill was discussed in another place for so long, I for one still do not have a clear picture of the system the Government want to set up. I hope that the Minister’s response will clear up the confusions in this area once and for all and I apologise for having felt the need to speak for quite as long on quite so many matters. I beg to move.

Baroness Thomas of Winchester: I fear that I shall repeat much of what the noble Lord, Lord Skelmersdale, has just said, as I too have quite a few questions about this matter. As he said, there are arguments going both ways as to whether having the two assessments together is a good thing. Citizens advice bureaux have wide experience to draw on in this area and they think that it is unsatisfactory because of the different purposes of the two assessments. However, for any disabled person who is travelling a long way to be assessed, having the two tests on the same day could be beneficial, as the noble Lord said. But for others, it could be confusing and worrying and it may sow distrust between claimants and their personal advisers.

We now have a copy of the letter which the Minister wrote to the noble Lord, Lord Skelmersdale, about this matter after the Bill’s first day in Committee, from which I gather that the pilot of the work-focused health-related assessment, to be started later this year, will help determine whether the same healthcare professional carries out both health

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assessments or whether they will be carried out by two different people—I think that that is right. However, what about the decision maker? Will that be the same person? Would any part of the first part of the PCA inform the second work-focused, health-related test? Surely the decision on the first test of the PCA would not always be made immediately, so it would not always be clear whether the second work-focused health assessment was necessary. What would be the point of the second test if it was obvious that the claimant was likely to become a member of the support group?

I was going to ask whether a doctor carrying out the second assessment would necessarily be qualified to assess work capabilities and rehabilitational needs, but we now discover that the second test will be carried out by healthcare professionals who will have “health-related” skills. The letter states that they will focus on “health interventions”, so my next question is still relevant. Is a medically led work-focused, health-related assessment necessarily the best way of understanding a person’s anxieties as well as ambitions?

I was also concerned by the sentence in the letter which stated that occupational physicians very often discuss an employee’s sickness absence and the steps that can be taken to get the employee back to work, but a short-term sickness absence is very different from a long-term disability. Above all, those who undergo both tests should be dealt with sensitively and with clear explanations given about the purpose of each test.

Baroness Morgan of Drefelin: I hope that I will be able to clear up some of the questions around the timing of assessments. In addition to making my remarks today, it would perhaps be sensible for me to write to Members of the Committee after this sitting so that we can be as helpful and as clear as possible.

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