Public Bodies (Abolition of the Disability Living Allowance Advisory Board) Order 2013

Tuesday 29th January 2013 Grand Committee

Considered in Grand Committee

16:00

Moved by

[Baroness Stowell of Beeston]

That the Grand Committee do report to the House that it has considered the Public Bodies (Abolition of the Disability Living Allowance Advisory Board) Order 2013.

Relevant documents: 12th and 15th Reports from the Secondary Legislation Scrutiny Committee, 8th Report from the Joint Committee on Statutory Instruments

[Baroness Stowell of Beeston]

My Lords, this order was laid before Parliament on 15 October last year under the powers of the Public Bodies Act 2011. It provides for the abolition of the Disability Living Allowance Advisory Board.

The board provides independent advice to the Secretary of State on matters relating to disability living allowance and attendance allowance. It cannot provide advice unless specifically asked to do so and cannot be asked to provide advice on issues other than those relating to DLA or AA. It is not a representative body for disabled people and plays no role in the decision-making process for benefits.

The Disability Living Allowance Advisory Board Regulations 1991 specified that the board’s function was,

“to give advice to the Secretary of State on such matters as he may refer to them for consideration”.

The Secretary of State usually commissioned work on medical matters relating to specific conditions or illnesses. For example, the board undertook a study of cases where the highest rates of benefit had been awarded under special provisions for people who were terminally ill and not expected to live beyond six months, yet a number of such awards had been in payment for more than seven years. The board was supportive of the fact that special rules exist and should continue to exist but nevertheless it recommended that such cases should be reviewed after three years.

Clearly, the board provided some excellent advice in its time. However, the defined scope and membership of the board means that there is a limit to the type of advice it can provide. In fact, the last time the board was commissioned to do any work was in 2008, two years before the end of the previous Government. Since coming into government, we have found that using time-limited, tailored advisory groups and targeted professional advice—as we did with the Harrington reviews of the work capability assessment—is better than the prescriptive approach of a standing board.

We have used this more dynamic approach in relation to the design and development of the personal independence payment, involving experts and consulting disabled people and their organisations. The Secondary Legislation Scrutiny Committee commended the department for its extensive consultation on PIP, including our work with voluntary organisations that represent the interests of disabled people. I will return to this in a moment.

In its 15th Report of Session 2012-13, the Secondary Legislation Scrutiny Committee made a number of points that need to be answered in this debate, particularly on the tests laid down in the Public Bodies Act. I will address the points in turn. The report is clear that it expects me to use this forum to answer some of the points. I hope that noble Lords will forgive me if it takes me a little while to go through them systematically.

I will start with our decision not to consult on the proposal to close the board. The Secondary Legislation Scrutiny Committee accepted the department’s explanation of why there was no legal obligation for us to consult but it did not consider this to be in keeping with the spirit of the consultation requirements. I should restate that the board was not outward facing and did not have free rein to examine the policy, operation or administration of DLA, being able to respond only to concerns expressed by the Secretary of State. In our view, to offer a consultation to groups with no ability to influence the work of the board would not be in the spirit of meaningful consultation.

Moreover, disability organisations have shown little interest in the board over the years. Back in 2007 when it was reviewed as part of the normal process of reviewing non-departmental public bodies, more than 100 organisations of and for disabled people were contacted, but only 11 responded. Out of those, three reported that they could not spare the time to comment and the remainder had little to say about the functions of the board.

During the design of the personal independence payment, which as noble Lords know will replace disability living allowance, we undertook three consultation exercises. I acknowledge absolutely that no specific questions were asked about the board during those consultations, but the respondents had the opportunity to raise anything they wanted to about the reform of DLA. We received more than 5,500 responses, and again not one of them mentioned the board. We also discussed the board in both Houses during the passage of the Public Bodies Act, and the department has not received any correspondence or parliamentary Questions on the subject. There have been several meetings between disability organisations and Ministers and officials, and again the future of the board has never been an issue.

Perhaps I may turn to the issue of efficiency and effectiveness, which is another one of the tests under the Public Bodies Act. The department has an existing medical policy team covering a wide range of policy areas who can provide medical opinion or who can commission work by others, if needed. This is a more flexible resource than that provided by a standing board. The team also produces guidance for operational staff, advice on operational issues and audits the quality of outsourced medical advice. It is our view that short-life working groups can be set up quickly when work is needed, which is more efficient and effective than retaining a standing collection of eminent people whose expertise is not necessarily being put to good use consistently. For instance, during the development of PIP, we set up a group to help develop the assessment criteria. The group encompassed a wide range of expertise across health, social care and disability, including from occupational therapy, social work and a representative from Disability Rights UK. Very importantly, we also sought the views of user-led organisations and disabled people themselves through our implementation stakeholder forum. This group involves more than 60 user-led, grass-roots and national organisations working with us to get the design and delivery arrangements right.

Legislatively maintaining the status quo for the board places a burden on the department because the regulations require that the membership contains specifically qualified personnel. Therefore, if a member leaves the board either by choice or because their tenure has ended, the department is required to recruit even though there may be no actual work to do. The recruitment process is expensive, resource intensive and, in my view, verges on being disrespectful to those people who apply for the post. We consider that using time-limited groups is more effective than maintaining a standing body. We continue to use the expertise of other disability groups, and our recently launched Disability Action Alliance has convened a wide range of disabled people and their organisations who will work alongside the department to deliver results in a less prescriptive manner.

I shall move on now to the test of economy. As the Secondary Legislation Scrutiny Committee acknowledges, it is cheaper to run one NDPB rather than two, while Equality 2025 is a body representing disabled people that helps the Government to understand their needs and wishes. It has been in existence since 2006 and there have been no additional costs to that body since the DLA board has not been used. In addition, I can assure noble Lords that the medical policy team has absorbed some of the work previously undertaken by the board at no extra cost. Commissioning independent advice on an ad hoc basis is more economical than commissioning it from board members because they were paid fees for attending meetings and for contributing to reports, whereas the individuals and organisations who advised the department on the development of the PIP assessment did not receive a fee.

The Department of Work and Pensions considers that the use of time-limited groups will increase accountability. The scrutiny committee is of the opinion that accountability remains the same, as the Minister will commission time-limited groups, much in the same way as the board could meet only at the Minister’s direct request; it disagrees with our view that accountability will be enhanced. However, the board’s composition was laid down in statute. It is required to have members with professional knowledge or experience of physiotherapy, occupational therapy, social work, nursing people with disabilities and medical practice, as well as six or more members who are themselves disabled and at least one carer. Now we can target individuals with the specialist knowledge that we require. For instance, if the department wants up-to-date information on people with mental health conditions, it can specifically target mental health professionals who may be better placed to provide that advice.

In addition, the board could report only to Ministers and only at their request. Time-limited groups have the flexibility to engage with and report to a range of parties. For example, in his independent reviews of the work capability assessment, Professor Harrington took evidence from hundreds of organisations and individuals and ultimately presented his report to Parliament.

On safeguards, I do not consider that the abolition of the board will remove any necessary protection or prevent any person continuing to exercise any right of freedom. I say that because, as I have already mentioned, there is a range of ways in which Ministers receive and seek advice, and consult. There have been scores of stakeholders meetings with Ministers and officials. These will clearly continue.

This is a good and sensible reform, formally closing a body which, although of considerable help to the department in its time, has not been asked to give any advice since 2008. Before I close, I pay tribute and offer sincere thanks on behalf of all current Ministers at DWP to the current chair, Anne Speight, her predecessors and all members who have served on the DLA board over the years.

I hope that I have been able to give the Committee the information necessary to demonstrate that, in abolishing the DLA advisory board, we are in no way diminishing the way in which we will consult properly with experts and ensure that all ranges of advice are taken properly into account. I beg to move.

[Lord McKenzie of Luton]

My Lords, I thank the noble Baroness for her introduction to this order which, as has been described, abolishes the DLA advisory board. I join the noble Baroness in paying tribute to those who have served on the board over the years and all the work that they have done. We acknowledge the extensive consultation that has taken place on the creation of PIP. The extent to which it was always spot on is something we will have the chance to discuss when we discuss the regulations quite shortly. However, we acknowledge that that has been an extensive process.

We have of course debated the proposition of the board being abolished when we considered it during the passage of the Public Bodies Act. Since then, we have had time to reflect on those discussions and the Minister will be aware of the debate at the other end, particularly the strong points made by my right honourable friend Anne McGuire, former Minister for the disabled.

Paragraph 4.6 of the Explanatory Memorandum makes it clear that the board satisfied the three tests of performing a technical function whose activities require political impartiality and needing to act independently to establish facts. Can the Minister say a little more about the assessment that was undertaken to make the judgment that the DWP is better suited to the in-house team of medical advisers? Can we have an update on the size of that in-house team and the range of skills which it encompasses? Paragraph 7.2 of the Explanatory Note refers to “a larger resource”, but how does the range of skills match that which is available to the board? The Minister ranged over the skills that the board has. Paragraph 4.4, on the constitution of the board, sets out the range of skills which the board should have. It should include people from the fields of,

“physiotherapy, occupational therapy, social work, nursing disabled persons, medical practice, and at least one member with experience of caring for a disabled person”.

16:15

Paragraph 4.8 makes reference to the board consisting of,

“some very eminent experts in their field”.

How is that range of expertise replicated under the new arrangements? I understand the point about task and finish groups, but there is no inherent reason why the board could not be a task and finish group in respect of some of the work that the department needs to be done.

Reference is made to,

“maintaining a standing non-departmental public body”,

which gives the impression that it is somehow in constant session, a bit like the Politburo, but I do not think that that is how it works. Perhaps the Minister can say something about the time commitment that has been required over recent years and any changes in membership.

Paragraph 8.1 of the note refers to the consultation outcome and identifies that, apart from the board members, the only person to be consulted on this exercise is the Secretary of State, as he is the only recipient of advice. I am bound to say that that is thin justification. It is not the reality that the Secretary of State receives whatever advice the board offers, keeps it to himself and beavers away night and day to make that available for the benefit of the department and its clients. The Secretary of State is nominally the recipient of that advice, but it does not work like that in the department. As the Minister will well know, and as the officials know, the information goes to other Ministers and officials, so to use that argument as a pretext for the Secretary of State being the only person to be consulted, frankly, is a bit thin. I accept the formal position whereby the advice goes to the Secretary of State, and the Secretary of State is the only person who can commission it, but that does not excuse there not being a wider consultation on that issue.

The information provided recites that the board expressed its concerns about independent scrutiny of the department’s policy towards disabled people. Part of the Government’s response is the reference to the remit of Equality 2025. Will the Minister explain the extent of and resource available to Equality 2025? I think that it has eight members with specific remits anyway. To what extent is that a full alternative to the independent scrutiny that comes from the board, or has in the past? The board had the capacity to consider on a multidisciplinary basis as an independent body. I ask again why the board could not serve as an ad hoc committee with those skills. The board is, or was, flexible, so it could take up these tasks when required.

On consultation, the Minister will be aware of the criticism in the Secondary Legislation Scrutiny Committee’s report concerning the consultation process, or rather the lack of it, and the importance of a proper process. The criticism that the department has not complied with the spirit of the law is particularly damning. As the committee points out, there are a number of easily identifiable representative groups and charities—those which were displaying an active interest in the move from DLA to PIP—which could have been consulted, even more so given the highlighted interest around disability benefits in general and the abolition of DLA and its transition to PIP. Just to make clear what is on the record, paragraph 19 says:

“While the Committee concludes that the Minister's supplementary evidence appears to explain sufficiently why DWP considered there was no legal obligation to consult under section 10(1)(b) of the Public Bodies Act, we do not consider the Minister's approach is necessarily in keeping with the spirit of the consultation requirement. In our view, it would have been better to conduct a small, low key consultation targeted at bodies who might reasonably be identified as having an interest (if not a substantial interest) in the operation of Disability Living Allowance to substantiate the Minister’s view that the abolition of the Board will not be detrimental. We attach some significance to the decision by Parliament to include consultation requirements on the face of the Act, rather than relying on the Government’s general approach to consultation. The House may wish to explore this point further in debate”.

That is what we are doing now.

There is one other small point: the board’s responsibility extended to advising on attendance allowance, which sometimes gets a bit lost because of the concentration on working-age benefits. Perhaps we can have some reassurance that that is being dealt with.

It is a pity that the Government did not consult more fully. I hope that they have learnt a lesson from this. The processes under the Public Bodies Act were predicated on there being a robust consultation process. In our view, the Government have failed to provide that on this occasion.

[Baroness Stowell of Beeston]

My Lords, I will start by responding to the question the noble Lord asked about why the DLA advisory board could not become what is commonly described as a “task and finish group”. The noble Lord may not have noticed, but I resisted using that phrase in my opening speech because until I had my briefing for this debate I had never come across it—so I asked the officials to remove it. I will answer some of the noble Lord’s other specific questions in a moment.

It is possible that the DLA advisory board could become a task and finish group, but it is set up in statutory terms, which specifically lay out what it exists to do and how it can operate. Instead, we are introducing a regime that is much more flexible and allows us, quite rightly, to draw on the expertise that we need for our work, but to do so in a way that we believe will work better. Indeed, there were current members of the DLA advisory board on a group that was put together to advise us on something recently. It is not that we do not want that expertise; we want to be able to use it in a way that is much more flexible and responsive to immediate needs.

The noble Lord asked what assessment we had made of the PIP assessment development group and the in-house medical policy team, and how they compared with the DLA advisory board in terms of resources and expertise. The department’s medical policy team consists of six officials, all of whom are qualified doctors. The medical policy team has taken on some of the work previously done by the advisory board—for example, producing guidance on medical conditions.

Where the department requires advice from a wider range of professionals, this can be commissioned, as was the case for the development of the PIP assessment. Some of the DLA advisory board members were in that group, as I have said. The group includes people from Equality 2025: Liz Sayce of what was originally Radar and is now part of Disability Rights UK; Professor Tom Sensky, a psychiatrist; Itai Chikomo, a community psychiatric nurse; and Hugh Constant, a social worker—so a whole range of different areas of expertise is covered.

The noble Lord asked who will now advise on attendance allowance and how that would be dealt with. I can confirm that the medical policy advisers in the department are responsible for that and that they will use what he has calls “task and finish” and I call “time-limited” groups, where that specific expertise is needed.

I covered the more general point about consultation in quite some detail in my opening remarks and acknowledge the criticism in the scrutiny committee’s report. However, as I said previously, the board did not attract much comment on how it was operating when we gave that opportunity to a large number of groups. Most importantly, it was not a question of not consulting disability groups because we did not want to hear what they have to say but that the board exists for a specific function, as I have already described, and it would seem almost insulting to consult disability groups about a board over which they have no influence in terms of how it did its work. There was no intention to prevent consultation because we did not want to hear what people wanted to say. We felt that the way in which we were carrying out our general process of consulting on the policies that we were developing was very extensive and that people had the opportunity to influence the design and development of those policies. I take on board the point that he made but would only say again that this is a board that had not met since 2008—so had not met under the last two years of the previous Government, not just during this Government. I am convinced that, in its place, we are putting arrangements which will ensure that we have the right expertise and advice coming to us as we develop policy and that we are consulting widely as we roll out that policy and taking on board the responses and the feedback that we receive.

Motion agreed.