Social Security (Personal Independence Payment) (Amendment) Regulations 2017

Debate between Baroness Browning and Baroness Sherlock

Monday 27th March 2017 Lords Chamber

[Baroness Sherlock (Lab)]

My Lords, I rise to speak to the Motion in my name on the Order Paper. Widespread concern has been expressed about these regulations. I am grateful for briefings from a wide range of organisations pointing out their implications. The noble Baroness, Lady Bakewell, explained how we came to be here. In December the Upper Tribunal ruled on two cases that determined what could be taken into account when making assessments for PIP. Ministers’ response was to declare that if those judgments were allowed to stand they would cost £3.7 billion over five years. Therefore, they had no option but to rush to legislate without consultation. They did not pause even to allow the Social Security Advisory Committee to scrutinise the regulations in advance of their being laid, as would be usual.

The cases were slightly different. The case of LB was about managing medication, affects far fewer people and would cost only about £10 million a year. As the Social Security Advisory Committee pointed out, the impacts of that case are by no means clear. So why did the Government not do what the SSAC recommended: consult widely and improve the estimate of the likely impact before the changes were introduced, given that the numbers and the cost were so much smaller?

The judgment in the MH case meant that, in applying for the mobility component of PIP, someone could rely on their inability to plan or manage a journey solely on grounds of psychological distress. These regulations are designed to reverse that completely. Yet when PIP was introduced in legislation, Ministers claimed it would be very different from disability living allowance, which preceded it, because it would not judge someone simply on the basis of their condition, but on what an individual could or could not do. Yet now the regulations seek to exclude a key dimension of that very judgment.

Ministers claim that they are restoring the original aim of PIP, but we were told that the higher rate of the mobility component of PIP would apply where mobility is,

“severely limited by the person’s physical or mental condition”.

Yet many people with mental health problems will be affected by these changes, including people with schizophrenia or bipolar or post-traumatic stress disorders. Will the Minister please tell the House how this fits at all with the Prime Minister’s promise to tackle the stigma of mental health problems and the Government’s commitment to parity of esteem between physical and mental health? It does not.

Ministers have been out there insisting that this is not a cut. However, 164,000 people with mental health conditions could miss out on mobility payments that they would have received under the Upper Tribunal judgment. As the Secondary Legislation Scrutiny Committee warned,

“while this change may not result in an immediate ‘cut’ for people currently receiving PIP, they may lose out in future (despite no change to their condition), if they are reassessed under the new criteria”.

That committee called on the Government to make clear to the House the long-term impact of these changes. That is what I am trying to push them to do today. It also called on them to review all the descriptors for PIP, as did the Social Security Advisory Committee. Can the Minister assure the House that his department intends to act on the recommendations of both the SSAC and the scrutiny committee and report back to this House when it has done so?

Finally, the SSAC pointed out that it was not at all clear how tribunals or those making decisions would respond to changes in descriptors to exclude psychological distress altogether, particularly where that is a symptom of a condition; for example, an intellectual or cognitive impairment which would generally result in a higher level of need. It said that,

“where multiple factors made it impossible for someone to follow a journey without help, it would be difficult in practice to strip out the element of psychological distress from the other factors when making a decision. As a result it may well be that it is not consistently treated in these circumstances”.

The Disability Benefits Consortium highlights that by looking at the example of Parkinson’s. It is a highly complex condition with more than 40 physical and non-physical symptoms. Depression and anxiety can be a symptom of Parkinson’s as a result of chemical changes in the brain. At any point, up to 40% of people with Parkinson’s will have depression and a similar proportion will experience anxiety. Likewise, many people with MS experience significant cognitive difficulties and are more likely to have co-morbid mental health conditions. The Upper Tribunal recognised that someone who needs to be accompanied on journeys to avoid overwhelming psychological distress has needs which meet a higher descriptor, but these regulations will prevent that being recognised and that claimant getting an appropriate level of help. How are decision-makers supposed to strip out the element of psychological distress from other factors when making a decision, when it is quite clear to anyone who has looked at it that it will not be an easy task?

Even before the regulations, there was growing concern about the way PIP is working. The Disability Benefits Consortium points out that almost half of people lose access to some of or all their support when assessed to move from DLA to PIP. Sixty per cent of those who appeal succeed. We know already that more than 750 people a week are returning their Motability cars because they no longer qualify for the money that they previously used to pay for them.

The tribunal decisions highlighted some important failures in the way that the PIP assessment process is working for people with mental health problems. Instead of stopping to reflect and consult, Ministers have rushed out new regulations to overturn the effect of the judgments and to assure us that everything will work smoothly in future. It will not. The ambiguities remain. The flaws in the way the PIP process assesses people with mental health needs will not disappear. Their needs will now simply be officially ignored. If only the Government had accepted the amendment put forward during the passage of the Bill by the noble Baroness, Lady Grey-Thompson, which we backed and which would have introduced a trial period for PIP, these issues might have surfaced, but sadly she could not get support from around the House.

As a result, some people who need additional support to overcome barriers to mobility will not get it. Others will lose it when they come up for reassessment. That means that thousands of people could be trapped and isolated in their own homes because they cannot travel alone without help. That could make their depression or anxiety worse.

The context for this change is that this Government and the previous Government have repeatedly cut benefits for sick and disabled people. They cut £30 a week from the ESA for the WRAG group. They introduced the bedroom tax—two-thirds of households affected by that contain a disabled person. Now we have another move which will hit vulnerable people.

The Government should withdraw the regulations to enable proper scrutiny and consultation. If they will not, the Minister should commit here and now to conducting a review of the impact of the regulations on those with mental health conditions, as my Motion demands.

Before I finish, I should say a word about the other Motion on the Order Paper. If the noble Baroness, Lady Bakewell, decides to push her fatal Motion to a vote, she will be well aware that we on these Benches cannot support her and neither will most of the House. There is a reason that the Lords has voted down secondary legislation only five times since 1945. It is because, unlike with primary legislation, if we vote against secondary legislation, it is dead, irrespective of the will of the elected House. The Cunningham convention sets out quite clearly the exceptional circumstances in which the House may do that and we are not in that territory. Even if the fatal Motion somehow passed, I presume that the Government would simply bring back something in a Finance Bill or in other financially privileged legislation on which we could have no impact. I regret that having on the table a Motion such as that must inevitably raise expectations that this House can do something that it could or would never have done.

However, we should not let the Government off tonight without making it clear to them that the House does not approve of what they are doing. We should make it clear that we are deeply concerned about the impact of the regulations on sick and disabled people and that we do not approve of a move that devalues mental health compared with physical health. I urge the Government to think again. If they will not, I urge the House to demand that they at least account for the impact of what they are doing.

[Baroness Browning (Con)]

My Lords—