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Lord Forsyth of Drumlean: My Lords, can the Minister give an indication of his department’s estimate of the number of people who are suffering

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from cancer and having treatment who would not go into the support group? What percentage is likely to be outwith the support group?

Lord McKenzie of Luton: My Lords, I do not believe that we can estimate that with precision. While we know the number of customers currently on IB who are suffering from cancer, I do not think we know the range of challenges that those individuals face and therefore cannot estimate it. If I am wrong on that, I will revert to the noble Lord.

Lord Forsyth of Drumlean: My Lords, I am most grateful to the Minister, but I find it difficult to see how he can assess whether there is merit in the amendment of my noble friend without knowing that information. If the vast majority would fit into the support group, then there is clearly nothing to argue about. If it is a significant number, then it would undermine his general policy and I have some sympathy with that.

Lord McKenzie of Luton: My Lords, the thrust of the principle involved here is that we should look at individual cases to see how people’s medical condition impacts on their individual ability to function in a range of circumstances. The principle, in a sense, is that whether it was one, 10,000 or 20,000, we would want to look at people’s individual circumstances and not move them en bloc into the support group. I have outlined some exceptions to that, relating to people who are terminally ill or going through certain forms of cancer treatment, but we generally want to look at the support and circumstances of individuals and to make the judgment on that basis. That is a key part of our approach. Therefore, whether it was one, 50 or 10,000, it would not affect the answer that I would offer to the noble Lord, Lord Skelmersdale. I reiterate that anybody at serious risk of infection, whatever the cause, will be treated under these provisions as having limited capability for work-related activity and placed in the support group.

I want to comment here on those people whose condition or treatment does not affect them to the extent that they are eligible for entry to the support group. We believe, in principle, that it is right to require these customers to engage with us. However, we accept that there needs to be flexibility to deal with people’s individual circumstances, and that some of these people may still have periods where they are seriously affected either by their condition or treatment. That is why personal advisers can defer interviews—the draft regulations set out that work-focused interviews can be deferred where they would not assist the customer or be appropriate in the circumstances. This may well be the case where someone is undertaking treatment for cancer, especially where there are side effects such as significant tiredness. Furthermore, the effects of health conditions or treatments, such as periods of severe fatigue, can be taken into account when considering good cause for customers not complying with requirements.

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I hope that I have answered the point raised by the noble Lord, Lord Addington, within that. We are looking not at groups of people but at individual circumstances; indeed, if new treatments came along that improved people’s ability to function with given medical conditions, they might give rise to judgments by people undertaking the medical assessment that were different from those today without them. I hope that the answer has been reassuring and that the noble Lord will therefore feel able to withdraw his amendment.

Lord Skelmersdale: My Lords, it most certainly was not my intention to intervene or interfere with the underlying principle of the Bill, which as I have said on numerous occasions I agree with as far as policy goes. However, from all the amendments there are clearly matters of detail about which I am, shall we say, suspicious.

One thing I do not want is to undermine the key principle of the Bill—that only the most severely disabled and those in their last few months of life should go into the support group. For the others, the ability to function—perhaps for the next few weeks or months—is what matters. Earlier in our proceedings, I got the comfort that I wanted from the Minister; namely, that if they were unable to function for whatever reason—chemotherapy or anything else—they would not be expected to undertake work-related activity. I am most comforted by what the Minister has just said. I doubt that I will have to come back to this matter at the next stage of the Bill but I am afraid that, if on reflection I decide that I ought to, I will. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Limited capability for work]:

[Amendments Nos. 7 and 8 not moved.]

Baroness Greengross moved Amendment No. 9:

The noble Baroness said: My Lords, I shall also speak to the other amendments in the group up to Amendment No. 35. The amendments would not necessarily result in any changes to the current draft regulations or implementation of these welfare reforms; they would simply make provision to widen the scope of the assessment process in the future. An assessment of an individual’s physical, mental and sensory functionality does not equate to an assessment of that individual’s capability for work or for work-related activity. Some factors that relate to an individual’s impairment will have an impact on their capability for work, and obviously this must not be neglected. However, the medical factors related to their impairment are not the sum.

The amendments are very much supported by RADAR. They would move the Bill closer to the now widely accepted social model of disability and widen its scope to reflect future advances in our understanding of what “capability for work” really means. They would allow future assessments to take account of the vast array of factors that may limit a disabled individual’s capability for work. Those factors could include education,

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training and skills, the availability of funding for reasonable adjustments, access to the workplace, discrimination, the effect of living in an area of high unemployment and the ability to access assistive technologies and their associated training and maintenance. Similar amendments were rejected in the other place solely for technical reasons. Those reasons have now been addressed, and I can see no reason why there should not be cross-party support for the amendments as there was in the other place.

It is critical that we agree the text of the Bill to ensure flexibility in the regulations to follow. With the current terminology, regulations will always maintain a focus on impairment rather than incorporate barriers faced by a disabled individual that are beyond their control. It could be argued that the work-focused health-related assessment should not incorporate an awareness of these wider societal barriers, and that that should be done by the personal adviser in the work-related activity stages. I would argue that the personal adviser should be involved at this first stage, which represents the beginning of an individual moving towards the labour market. Indeed, as the noble Baroness, Lady Morgan, informed us in Grand Committee, the work-focused health-related assessment will advise the personal adviser looking after the customer on the kind of health-related interventions that would benefit the customer, such as a condition-management programme.

The narrow impairment focus wrongly emphasises the start of work-related activity. It could even alienate disabled people from making the most of the process. In the other place, it was noted that the work-focused health-related assessment and the medical examination process will not only look at medical issues but will have a specific and detailed approach and will examine more than just the medical barriers faced by people with disabilities who want to re-enter the labour market. This will be enabled by removing the terminology “health-related” and by not limiting any part of the assessment to healthcare professionals. The regulation must move us beyond narrow understandings of disability. We must not categorise individuals only by their impairment or medical conditions. I beg to move.

4.15 pm

Baroness Thomas of Winchester: My Lords, we agree entirely with the noble Baroness, Lady Greengross, in her attempt to move towards the social model of disability. I shall speak to Amendment No. 33 in particular but I will not repeat all that the noble Baroness said. We seek flexibility in the regulations so that the kind of barriers she mentioned will be taken into account as being beyond the control of the claimant. They are just as likely to affect a person’s capability for work as the kind of health-related interventions that the Minister spoke about in Grand Committee. As the noble Baroness also said, the narrow impairment focus emphasises wrongly the start of work-related activity and may alienate disabled people from making the most of the process. No one wants to be categorised as just “disabled”, particularly if their confidence for work needs to be

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bolstered, otherwise this is how they will think of themselves. This new Bill gives us the chance to change the climate.

Lord Skelmersdale: My Lords, I am sympathetic to these amendments, although jobseeker’s allowance will continue alongside this Bill. I have spoken before about how pleased I am that the Bill sets into law assessments designed to determine what a disabled person can do rather than what he or she cannot do. This adjustment takes into account not only the contribution that people who will receive ESA have to offer but also the benefits that will come to them from developing their skills and confidence and moving closer to work readiness.

However, I cannot fully support these amendments. The employment and support allowance is and should be focused primarily on disabled people. These amendments would potentially open the field of claimants to anyone who is unable to find a job. For example, as I understand it, it would be possible for regulations to specify that someone who felt their education had not sufficiently prepared them for employment, or even someone who lived in an area with no suitable vacancies for them, as eligible for ESA. That is not the purpose of ESA. I look forward to hearing the Minister’s response to both these amendments.

Lord McKenzie of Luton: My Lords, the noble Baroness’s amendments all concern the social model of disability. These amendments and Amendment No. 33, proposed by the noble Baroness, Lady Thomas of Winchester, seek to ensure that the revised personal capability assessment focuses more widely than on health conditions and disabilities, the impact that these conditions have on customers’ functional capability and health interventions that might help to raise that capability.

Eligibility for employment and support allowance will depend on customers being determined as having limited capability for work. Equally, eligibility for the support component of the allowance will depend on customers being determined as having limited capability for work-related activity. Both limited capability for work and limited capability for work-related activity will be based on the impact of health conditions or disabilities on customers’ functional capability. That is a fundamental concept; the allowance has been created for people currently unable to work because of a health condition or disability. Although customers could be disadvantaged by a range of other factors, such as a lack of skills, the local labour market or the attitudes of employers—points touched upon by the noble Lord, Lord Skelmersdale—these are not reasons for entitlement to the benefit.

It is therefore appropriate that the regulations we use to determine limited capability for work are defined in the Bill by reference to a specific disease or bodily or mental disablement. That is the framework that we have at the moment, and we think that it remains appropriate for the revised PCA. Focusing on functional capability also helps to ensure that the assessments are applied consistently across the

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country. It is a key principle of the benefits system that eligibility should be defined nationally and consistently and should not be affected by local factors. Taking into account wider social factors would effectively result in different eligibility criteria applying in different areas. This could result in customers receiving different benefit entitlement decisions depending on where they live; that is clearly unacceptable. However, we will not be ignoring social factors. I will say more on this in a moment.

The noble Baroness has proposed that we replace the term “medical examination” with “eligibility test”. Again, we have used this wording for a very specific reason. The revised personal capability assessment will gather and evaluate information from a number of sources to assess whether an individual has limited capability for work or limited capability for work-related activity. As at present, we will request information from healthcare professionals and other relevant people, and customers who are not identified at this early stage as having limited capability for work-related activity will be asked to complete a self-assessment form to help us to assess their condition.

For most customers, a part of this evidence-gathering process will be a face-to-face medical examination with a healthcare professional. The phrase “medical examination” in Clauses 8 and 9 refers to this very specific element of the PCA process. The decisions on whether a customer is eligible for either employment and support allowance or access to the support group are not taken during this medical examination, nor are these decisions taken by the healthcare professional carrying out the examination. The decisions are taken subsequently by a departmental decision-maker, who considers all the available evidence, including that gained from the medical examination. Replacing the phrase “medical examination” with “eligibility test” would not make it clear that these are references to very specific parts of the PCA process. Meanwhile, calling these examinations “eligibility tests” would not make it clear to our customers that a face-to-face examination would be involved.

On the amendments concerning the work-focused health-related assessment, as part of our reforms we are adding a new stage to the personal capability assessment. This new stage, the work-focused health-related assessment, will be a positive experience that gives customers the opportunity to explore with a trained healthcare professional his or her perspective on their disabling condition. It will aim to identify as early as possible in a claim the health-related barriers that lie between customers and their engagement with work, as well as the health-related interventions that will help to improve their capability. There is good evidence about the beneficial effects on health of early intervention.

Once more, we have very specifically used the term “health-related” in the title of this assessment, as we want the focus of the assessment to be on the health-related issues I have already mentioned. We use health in its broadest sense, indicating that the focus is on matters relating to an individual’s body or

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mind and the impact of those on that individual’s capability for work; as such, we include impact on the body or mind caused by health conditions and disabilities.

We are using healthcare professionals to carry out this assessment because they have specific skills that we would not expect a personal adviser to have. For example, the assessment will identify whether any health-related interventions, such as cognitive behavioural therapy or physiotherapy, would help customers to improve their capability. It would be unrealistic to expect personal advisers or others to be able to identify these interventions as suitable for customers.

Although we want the assessment to focus on health-related issues, I assure noble Lords that this does not mean that other barriers to work will not be taken into account. For example, the healthcare professional carrying out the assessment will be able to identify, in general terms, occupational factors that are creating a barrier to return to work, such as advising whether a customer has mobility problems making it difficult to access a workplace. But at this early stage, without a specific job in mind for the customer—or, where the customer does have a specific job, without an anticipated date for a return to work—it would not be appropriate to carry out a detailed workplace assessment. That would come at a later stage, when the customer is ready to move into work and it would be in the context of a specific job. The customer’s personal adviser would then arrange the necessary workplace assessment.

Meanwhile, the work-focused health-related assessment will allow customers to explore their own beliefs and perceptions about their disabling condition. We believe that this in itself will be beneficial to the customer, because we know that beliefs and perceptions can influence capability. People with a positive, coping attitude are more likely to be able to influence their level of capability than those who have perhaps lost confidence in their ability to cope.

We will ask customers about the barriers that they perceive between themselves and the labour market. Although some of these barriers will be medical, it is likely that others will be societal. Again, we do not suggest that these non-medical barriers will be ignored. Information from the work-focused health-related assessment will be given to the personal adviser for use during the work-focused interviews, which will focus on wider issues such as societal factors. Although personal advisers are unlikely to have the skills needed to identify health-related interventions, they will be able to provide help to address wider issues such as transport problems, skills needs or low confidence.

Much of the discussion in Committee was on the role of employers and the need for the Government to engage with them and help to ensure that they meet their obligations under the Disability Discrimination Act 1995 to support people with health problems and disabilities to stay in or return to work. I can assure noble Lords that we are taking this seriously, and a concerted effort is being made throughout

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Government with a particular focus on people with mental health problems, who can suffer a greater stigma than most. Although I would not deny that it is a big task, we are committed to it and are working together to tackle the problem.

I know that noble Lords particularly want to raise awareness of the access to work scheme among employers, and I thank them for their support for the scheme. I assure the House that we actively promote the availability of access to work and all our disability employment services. Information is freely available on our website, at jobcentres and from our voluntary sector partners.

I have explained at some length to the noble Baroness our intentions for the revised assessment and why we have used the wording we have. I also hope that I have reassured her that, although it would not be appropriate to base benefit entitlement on social factors or to deal with them directly in the work-focused health-related assessment, societal factors will be addressed. I hope, therefore, that the noble Baroness will be able to withdraw the amendment.

Baroness Greengross: My Lords, I thank the Minister for those reassurances. I am not certain why an eligibility test, if added to the conditions, should not be broad and should not incorporate certain standards at a national level. However, I accept those assurances and hope that he will ensure that the code of practice makes them very clear so that those issues are not ignored. I remind the Minister, although he does not need reminding, of the WHO definition of health, which is very broad and includes well-being and various other socially better-defined criteria. I will think again on the issue. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 10 and 11 not moved.]

Clause 9 [Limited capability for work-related activity]:

[Amendments Nos. 12 to 15 not moved.]

Lord Skelmersdale moved Amendment No. 16:

The noble Lord said: My Lords, this amendment is an adjusted version of the one tabled by the noble Lord, Lord Oakeshott, in Committee. The arguments are much the same as I adverted to when I spoke for the need for more affirmative orders. In Committee, the Minister gave us some reassurances that the PCA would be fully evaluated as the pilot schemes were expanded and adjusted. We also had an assurance that there will be an evaluation two years after implementation, with the possibility of further evaluation after that. Further evaluation would be an excellent thing to happen and I hope that the Minister will be able to give us firmer promises on that today.

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There has been a lot of debate and criticism of the assessments as this Bill moved first through another place and then through your Lordships' House. A lot of that was due to confusion, which has mostly been cleared up now. It has been a particularly clear indication of how pilot schemes are not enough. They provide valuable information about the failings of a draft system and are essential to work through teething problems before they are rolled out. But they do not provide a guarantee that the final version will be successful.

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