Personal Independence Payments

Baroness Campbell of Surbiton Excerpts

Tuesday 10th March 2015 Lords Chamber

[Lord Freud]

The backlogs that we suffered earlier have been reduced very substantially. The 14-week wait I referred to is down from 30 weeks in June 2014. We are now putting through 52,000 cases a month.

[Baroness Campbell of Surbiton (CB)]

My Lords, PIPs are intended to assist with disability-related expenses. The disability charity Scope estimated in a recent study that these amount to an average of £550 a month. Given that the Government have reasserted their commitment to protecting the value of the state pension through the triple lock, what consideration has the Minister given to affording PIPs the same protection?

[Lord Freud]

We are maintaining our spending on disability and disability payments and services are running at £50 billion a year. Indeed, our disability payments have been moving up right the way through this Parliament in real terms.

Disabled People: Independent Living Fund

Baroness Campbell of Surbiton Excerpts

Monday 31st March 2014 Grand Committee

Asked by

[Baroness Campbell of Surbiton]

To ask Her Majesty’s Government what arrangements they are putting in place to ensure that disabled people currently in receipt of money from the Independent Living Fund will not be left in hardship when the Fund is wound up next year and the responsibility for Fund recipients is handed to local authorities.

[Baroness Campbell of Surbiton (CB)]

My Lords, independent living lies at the heart of disabled peoples’ participation in their community. My interest in this concept is both personal and professional. Independent living support has enabled me to gain an education and enjoy a fulfilling career. Without it, I would be incapable of doing anything beyond the walls of my home. I am not alone; there are thousands just like me, who have been liberated by this support.

On 6 March, the Government issued a statement announcing, for the second time, their intention to close the Independent Living Fund, the ILF. Only the date of closure has changed: it has been put back to June 2015. Their first attempt at closure was challenged by a small group of disabled people who took the case to the Court of Appeal in 2013. The court ruled in their favour, announcing that the Government’s decision was unlawful under the public sector equality duty. The courts recognised that ILF users will be “significantly disadvantaged” if they have to rely solely on existing local authority provision, and that something more is expected of the Government to fulfil their obligations under the Equality Act and the UN Convention on the Rights of Persons with Disabilities.

One of the judges stated that if the forthcoming legislation on social care, or the code of guidance on transferring responsibility for ILF users to local authorities,

“does not arrive in time or turns out to be too anaemic in content to enable the Convention principles to be brought to bear in individual cases”,

then there would need to be reconsideration as to whether the public sector equality duty had been fulfilled. He also warned that,

“the level of Treasury funding for … this class of ILF users in transition back to”—

local authority provision—

“in particular is so austere as to leave no option but to reverse progress already achieved in independent living”.

I look forward to hearing from the Minister how the Government have addressed the concerns raised by the courts. Their equality impact assessment offers precious little reassurance on either count.

The Government’s decision to close the fund was not a surprise. Like so many government-funded initiatives to support disabled people’s independence, it fell prey to Treasury cuts and a shaky case for non-duplication and rationalisation. While the ILF budget has risen to the region of £290 million, this money helps over 18,000 severely disabled people, many of whom were previously dependent on expensive residential care or traditional day services. One of their biggest fears is of being forced to return to such provision when ILF funding ceases.

Times have changed. We now recognise that all Britain’s citizens, including those with the most severe disabilities, should enjoy the same life chances, freedoms, and responsibility to contribute, as everyone else. The days of mainstream institutionalised care should be behind us. As the deputy president of the Supreme Court said last week, when ruling that three disabled people had been deprived of their liberty in comfortable care facilities:

“A gilded cage is still a cage”.

Today, six out of 10 ILF users have some form of learning disability, and people—

[The Deputy Chairman of Committees (Lord Bichard) (CB)]

My Lords, there is a Division in the House. The Committee will adjourn for 10 minutes.

--- Later in debate ---

[Baroness Campbell of Surbiton]

To continue, today six out of 10 ILF users have some form of learning disability and people with significant learning disabilities are the highest single group, making up 33% of all users. About one-third of these use their ILF grant to enable them to live in supported accommodation. They and their families have paid tribute to how it has changed their lives, improved their health, expanded their horizons and, for some, opened up training and job opportunities. It became apparent when the fund was closed to new applicants in 2010 that this group would be particularly disadvantaged. The ILF told the Dilnot commission that:

“Many of these people have previously lived in residential care or long stay hospitals ... Local Authority representatives have told us that supported living placements for this group are becoming harder to finance since ILF stopped accepting applications”.

The Government’s consultation responses and impact assessment make it quite clear that ILF users will face a reduction in funding. This was confirmed by the response to the consultation from the Association of Directors of Adult Social Services and the Local Government Association:

“As ILF recipients transfer into the LA system in 2015, and are subsequently reviewed against”,

the local authority assessment criteria,

“the value of the personal budget calculated through the Resource Allocation System … will generally be at a lower level than the initial ILF/LA budget”.

Disabled people and their families are acutely aware of this prediction. They see their autonomy, independence and well-being slipping away. It is not surprising that they want to save the ILF because they mistrust local authorities’ ability to deliver independent living outcomes—outcomes which enable them to live in the community and not simply survive, the latter now being described by many as “clean and feed” provision.

Scope’s recent research evidence also indicates that local authority social care eligibility criteria and assessment based on personal care needs cannot hope to replicate ILF outcomes. It is true that equivalent funding is being transferred to local authorities, on a formula based on ILF estimates of what it would have paid recipients in each authority. However, the Government and local authorities are adamantly opposed to protecting this money via ring-fencing, so there is no guarantee that the funds will be used to support those transferring from the ILF. I can see the temptation to plunder the fund now: for mending potholes, funding crisis care or simply balancing the books. Let us not forget that the sum involved is a tiny fraction of further cuts planned in local government funding.

The Government giveth and the Government taketh away. For better or worse, the Government have decided to close the ILF. My concern now is that without proper protection and monitoring, the new process and procedures for delivery will fail to meet the 21st-century rights of disabled people to independent living, as articulated in Articles 19, 24 and 27 of the UN Convention on the Rights of Persons with Disabilities. It is clear that the courts share this concern.

Policy responsibility for future support for ILF users now passes to the Health Secretary and implementation falls within the framework set out in the Care Bill. I am a little bewildered that the Health and Social Care Minister is not responding to this debate: surely we are here to debate the future of independent living support, not the past. Along with my fellow Peers, I have worked closely with the Government to ensure that disabled people’s rights and responsibilities are embedded in the Care Bill: Inclusion London, Disability Rights UK and Scope have all produced constructive research evidence and practical ideas, shaping the continuity of care provisions, assessment procedures and much more. I want to see this model of collaboration throughout the ILF transition. In addition, regulations and detailed statutory guidance on the assessment of needs being prepared under the Bill must specifically address the needs of those transferring from the fund. Can the Minister confirm whether this is happening?

We have only 15 months to get the new structure for delivering independent living support fit for purpose. I am therefore asking the DWP, DCLG and the Department of Health Ministers for two immediate actions. The first is to initiate a reference group to oversee and monitor the effects of the ILF transition for two years. This group should work along the same lines as the current continuity of care group which involves disabled people, including myself, Government officials and local authority practitioners. Secondly, the Ministers for Social Care and Local Government should develop statutory regulation and guidance to ensure that the current principles and resources secured for independent living purposes continue after the transfer.

Without that twofold plan the Government are in jeopardy of undoing 30 years of independent living development, which has brought the most severely disabled people out from the shadows of dependency services. Let us ensure that they do not return to the back room, watching TV, or end up in 21st-century “gilded cages”. I look forward to hearing the Minister’s response, and very much look forward to this debate.

Enterprise and Regulatory Reform Bill

Baroness Campbell of Surbiton Excerpts

Wednesday 24th April 2013 Lords Chamber

[Baroness Stowell of Beeston]

My Lords, I will also speak to Motion B. We return to discussion of the equality provisions of the Enterprise and Regulatory Reform Bill. The House debated these issues on Monday and strong views were expressed, on which the Government have reflected very carefully. On Monday, as on other occasions, the noble Baroness, Lady Campbell, spoke eloquently and with passion about the importance of the commission’s general duty. I very much respect the knowledge that she and others contributed during the passage of the Bill.

The Government want the commission to be a strong equality and human rights body: our national expert whose opinion is respected and valued. This is what our legislative proposals, alongside our non-legislative work, are intended to achieve. We recognise that the general duty is important to many people as a symbolic statement of the Equality and Human Rights Commission’s overarching purpose. After the debate and Division in the House on Monday, the Government reflected further and decided to no longer press for its removal from the Equality Act 2006. However, as I argued on Monday, the general duty has a practical effect, as Section 12 of the Equality Act 2006 requires the commission to monitor and report on society’s progress against the aims set out in the general duty. We continue to believe that the commission will be more effective if the monitoring and reporting that it is required to do focuses clearly on its core equality, diversity and human rights duties.

The Motion we are considering today enables the commission’s general duty at Section 3 to remain in the Equality Act 2006. It also proposes that the commission should monitor progress against the duties specified in Sections 8 and 9 of the Equality Act 2006 —equality, diversity and human rights—the very areas where the commission can make a difference in society as our national equality body and national human rights institution. I should make clear that the commission will continue to be required to monitor and report every five years on changes in society in areas that it is uniquely placed to influence and change: in other words, those specified in Sections 8 and 9.

I come now to some technical amendments and beg the patience of noble Lords. Retaining the general duty at Section 3 also requires a consequential amendment to ensure that the word “groups” in the general duty is defined effectively. Amendment 36C, agreed by the other place, reinserts the parts of Section 10 that define “groups” for the purposes of the Act. Amendments 36D and 36E are technical and consequential amendments.

These proposals, which were fully supported yesterday in the other place, address the concerns raised during debates in this House. They build on the good progress already made. The Equality and Human Rights Commission is now well placed to go from strength to strength. I beg to move.

[Baroness Campbell of Surbiton]

My Lords, I am greatly relieved and so appreciative that the Government have listened and conceded to the opinions of this House on the importance of the general duty. I and countless others who fought for and benefited from the Equality and Human Rights Commission slept a lot more happily last night in the knowledge that the body will continue to give overarching direction on equality and human rights in Britain in all its manifestations.

I am also reassured that the EHRC will continue independently to monitor and report on equality and human rights nationally, as required by EU law and the Paris principles. Such monitoring will not deflect its focus but will enhance its ability to protect and promote equality and human rights in an ever-changing world. The journey of this amendment has been a tough one, but I for one have learnt once again how collegiately and intelligently this House can shine. My thanks go to all those who took part, and of course to the Government for their generous concession.

[Lord Cormack]

I briefly follow the noble Baroness, first in thanking my noble friend the Minister for responding as she did to that very powerful vote on Monday, which was not the first powerful vote on this subject. Most of all, I hope and believe that I speak for everyone in this House in congratulating the noble Baroness, Lady Campbell, on her tenacity, her courage and her articulate presentation of a case that has been both powerful and moving. She has not only proved herself to be an invaluable Member of your Lordships’ House, but she has enabled us to demonstrate how important this House can be on issues that are not necessarily enormous in the general scheme of things but that are terribly important.

The Bill will be all the better for the acceptance of the amendment introduced by the noble Baroness, and for the response given by my noble friend the Minister. This is a happy note on which to end these particular deliberations, and we really are all very much in the debt of the two noble Baronesses, particularly the noble Baroness, Lady Campbell.

Enterprise and Regulatory Reform Bill

Baroness Campbell of Surbiton Excerpts

Monday 22nd April 2013 Lords Chamber

Moved by

[Baroness Campbell of Surbiton]

As an amendment to Motion A, leave out from “House” to end and insert “do insist on its Amendment 35”.

[Baroness Campbell of Surbiton]

My Lords, it is with great sorrow that I find myself here at ping pong, seeking to reinstate Section 3 of the Equality Act 2006. I really do not do this lightly. I know that a challenge to the Government at this stage should be made only when it is absolutely necessary and all other routes have been exhausted. I had hoped that the Government would listen to the many and exceptionally well considered arguments made by all but two noble Lords on Report. I expected something more than a blanket no. That is why, having explained my reasons to the Minister last week, I have retabled the amendments that were overturned in the other place.

We have yet to hear of a single example of how the commission’s capacity to act as the guardian of equality and human rights in Britain will be improved by repealing the general duty in Section 3, a duty which gives a holistic direction to the commission based on principles of dignity, respect and fairness, and takes it to, but not beyond, legal enforcement in helping society change for the better. The Equality and Human Rights Commission itself has said that it now has sufficient focus and, in the absence of robust reasons for removing it, Section 3 should remain.

I ask your Lordships to recall where the duty came from and to consider where its repeal may take us in the future. Twenty years ago today, Stephen Lawrence was murdered by a group of young men for no reason other than the colour of his skin. The Metropolitan Police made a catalogue of errors in the investigation into his murder. Our criminal justice system failed Stephen Lawrence, and it failed his family in their quest for justice. It is a sad truth that it took this tragedy to create a moment of enlightenment. The inquiry, led by Sir William Macpherson, identified that racial discrimination could not be seen as the lone action of a few bad apples. It was part of the institutional culture of the Metropolitan Police.

That insight led to the sea-change in our approach to equality law and the structural support to promote and enforce it. The general duty embodies this shift in thinking. The role of the commission is not simply to seek compensation for those who experience discrimination. As Age UK has noted, it is to pursue cultural change to prevent such discrimination from occurring in the first place. This is not only about racial discrimination. It is about institutional discrimination and violations of human rights in all their guises and across society—for example, in parts of the NHS and our care system, as the EHRC demonstrated in its inquiry into older people’s treatment at home. It is also widespread in the criminal justice system and local authority practice, as the disability hate crime inquiry revealed. It is rife in the exploitation of migrant workers, exposed by the inquiry into the meat processing industry.

Ministers have argued that the general duty is symbolic and aspirational, as if this were enough to dismiss it out of hand. The general duty symbolises our commitment to preventing the kind of injustice faced by the Lawrence family, or the routine abuse of disabled young people in institutions because of indifference and cruelty. It aspires to a society founded on dignity, respect and equality—notoriously absent in these cases. However, contrary to what Ministers claim, the general duty is not, in fact, merely symbolic. Its repeal could have major implications for the commission’s role in monitoring equality and human rights. In the other place last week, the Minister told MPs:

“We are also changing the commission’s monitoring duty to ensure that it reports on its core functions, rather than on the state of society generally”.—[Official Report, Commons, 16/4/13; col. 217.]

At present the commission is required to monitor Britain’s progress towards the aims of the general duty. In so doing it holds up a mirror to society, as it did in its seminal report, How fair is Britain?. As the Minister indicated, if the general duty is repealed, the monitoring duty will be fundamentally changed—it will be limited to holding up a mirror to itself and asking only, “How effective is the commission?”. This is why Amendment 35 relating to Section 3 and Amendment 36 relating to Section 12 of the Equality Act 2006 are inseparable and must be considered as one.

The Minister went on to say that changing the monitoring duty,

“will also enable the EHRC to gain the respect hon. Members want it to have as our equality body and national human rights institution”.—[Official Report, 16/4/13; Commons, col. 217.]

This suggests a dangerous misunderstanding by the Government of the requirements of European Union law and the United Nations standards on the status and mandate of national human rights institutions. The likely effect of these proposals would be to prevent the commission, and therefore the UK, from complying with the requirement for equality and human rights bodies independently to monitor the national situation.

This could have very serious consequences. In the light of the Government’s package of reforms the international accreditation committee for national human rights institutions has announced that it will re-examine the commission’s status next month. I do not need to spell out to my noble friends the impact on the UK’s moral authority abroad if, as a direct consequence of these reforms, the commission were to lose its present A-accredited status. Such a development would no doubt be seized on by countries such as Zimbabwe and Iran. At a time when the UK is seeking a seat on the Human Rights Council that is not a risk we should be taking. I am sure noble Lords would agree that we must practise what we preach and lead by example.

The commission’s role as an agent of change matters to millions of people in this country, whether they are an elderly person in hospital, a woman fleeing a violent partner or a black teenager and his friend waiting for a bus. In a civilised society such as ours people in these vulnerable situations should feel confident that our institutions will accord them dignified and fair treatment as equal citizens. Justice is poorly served if our commitment to equality and human rights extends only to offering compensation after an event. For many, it is simply too late.

Today, of all days, we should remember why we put these measures in place and not be so foolish as to believe that it could never happen again. That is why, for the second time, I feel we must send these urgent messages to the other place that the general duty and the duty to monitor its aims must be taken very seriously and must stay. I beg to move.

[Lord Low of Dalston]

My Lords, I was sorry not to be here for Report stage of the Bill but I have read the debate carefully. It left no room for doubt as to the strength of support right across your Lordships’ House for retaining Section 3. In addition to the powerful and principled advocacy of the noble Baroness, Lady Campbell, and others, I attach particular importance to the comprehensive demolition of the Government’s case in legal terms by my noble and learned friend Lord Lloyd of Berwick.

Your Lordships will be pleased to hear that I do not propose to go over again all the substantive arguments again, which have been so comprehensively crawled over in Committee and on Report, about the value of duties that cannot be enforced in a court, for example, whether there is a place for the declaratory in legislation, the value of a unifying link between equality and other fundamental human rights—I was rather surprised that the Minister sought to deny that one in her wind-up—the fact that there is nothing in Section 3 that suggests or implies that the commission is to be solely or uniquely responsible for encouraging and supporting the goal of an equal society, the negative message sent by removing the general duty and so on. I think that these arguments have been comprehensively won.

--- Later in debate ---

[Baroness Stowell of Beeston]

My Lords, I am grateful for all contributions to this debate, and I mean that quite sincerely. As I respond, I am very conscious of the strength of opinion that has been expressed in your Lordships’ House this evening.

I will start by responding to a point raised by the noble Baroness, Lady Campbell of Surbiton, in response to my remark about us all wanting the commission to be as effective as it can be so that it is respected by everyone. I want to clarify what I mean by that because I think there are two separate issues here. One concerns the ICC’s status, or the commission’s A status being conferred on it by the ICC, and any suggestion that that is at risk. I reassure the House that the Government have had ongoing discussions with the ICC. I know that the chairman of the commission—the noble Baroness, Lady O’Neill—is continuing her dialogue with the ICC. The non-legislative changes that we have made around the budget and the framework document all strengthen the situation with regard to its status. I do not think that that is at risk. In talking about respect, I was trying to get at a slightly different point in that I want the Equality and Human Rights Commission to be respected not just by those of us who automatically take very seriously equality and human rights but also by those who do not. In order for us to create the kind of society that we are talking about in this context, we need the commission to be supported by everyone.

That takes me to another point that the noble Baroness, Lady Campbell, raised, and was echoed by my noble friend Lady Hussein-Ece, on the origins of Section 3 and the general duty. Today marks 20 years since the tragic murder of Stephen Lawrence. I cannot express to the House how much respect I have for Doreen Lawrence, who had to suffer the murder of her son for progress to be made in this country on some equality issues. That is beyond words. I pay tribute to everything that she has achieved and wish that she had not had to suffer in the way that she did in order to achieve what she has. However, I say with the greatest respect to the noble Baroness, Lady Campbell, and others who referred to the death of Stephen Lawrence in the context of the general duty, that that tragedy resulted in the introduction of the public sector equality duties in the Equality Act 2010. That terrible event did not result specifically in Section 3 and it is important to be clear on that point.

The noble Baroness, Lady Campbell, referred to reporting and monitoring. It is clear that the general duty then becomes a practical issue because the Act states that the commission is required to monitor that general duty and report on it. The noble Baroness suggested that by changing the monitoring requirements the commission would no longer be able to hold up a mirror to society and would be able only to hold up a mirror to itself in terms of what was happening when it produced its reports. I absolutely disagree with that. In my opening remarks, I made it clear that the new monitoring requirements would allow the commission to continue to hold up a mirror to society. It is our view that the new monitoring requirements will lead to a much more focused report, which we hope will have greater value for Parliament and other bodies that may want to refer to it.

The noble Lord, Lord Low, asked whether, in the absence of Section 3, the commission might be more open to judicial review as regards its work under Sections 8 and 9. The commission has never raised this concern in its briefings on the duty. We have no reason to think that the detailed and clear duties in Sections 8 and 9 would be made any more vulnerable by the removal of the general duty.

The noble and learned Lord, Lord Lloyd of Berwick, mentioned the advice given by Sir Bob Hepple and the Government’s response to his view. I say two things to the noble and learned Lord. First, at earlier stages of the Bill, we heard from the noble Lord, Lord Lester, a contrary view to that expressed by Sir Bob Hepple about the role of Section 3. Further, in our view, there is no indication that Section 3 has any interpretative value in relation to any other legislation, including the Equality Act 2010 and the Human Rights Act 1998.

The noble Baroness, Lady Thornton, and others pointed to the commission’s recent briefing and its statement that it supports maintaining the position established by the Lords for retaining its general duty. In response, I acknowledge that that is what the commission has said publicly and I understand and respect that view. However, in the same briefing paper it has also made it clear that removing the general duty would not affect the commission’s ability to do its work. On those matters, it is worth making it clear again that by removing the general duty we are not preventing the commission doing any of its very important and good work. It will not lose any of its vital powers of promoting equality, tackling discrimination and promoting human rights. As I have already said, when it comes to monitoring, producing quinquennial reviews in future should lead to it providing something more analytical and of greater value to those who want to use it as reference.

As I said when I first stood up, I am very aware of the strength of views expressed around this House. This is an issue where the noble Baroness, Lady Campbell, supported by all those who spoke tonight, feels differently from the Government. I have tried to set out again why the Government feel that this change will lead to a stronger Equality and Human Rights Commission, which is what we really want. When we come on to the next discussion about caste discrimination I will be able to reflect how important the role of the Equality and Human Rights Commission is. I ask your Lordships to agree with the Commons in their disagreement of the Lords amendment and the noble Baroness to withdraw her Motion

[Baroness Campbell of Surbiton]

My Lords, I would like to thank the Minister for her reply and to thank noble Lords who have contributed to this debate, the last debate, the one before it and the one before that. I have never worked so hard to protect a piece of legislation which the majority of people want and about which so many noble Lords from all sides of the House have spoken in favour. I find it quite incredible that something so symbolic and so important to the proper functioning of the Equality and Human Rights Commission has been such hard work.

I do understand that there has been improved mutual respect between the Government and the commission and the quality of the work has been enhanced. That is to be celebrated, but I still believe it is critical to retain the general duty and the monitoring duty for all the reasons that we have given in these debates since last year. I would like to thank the noble Lord, Lord Low, and the noble and learned Lord, Lord Lloyd, for helping me tonight to expand the arguments for the general duty. It would be wrong to rehearse them again now: we have exhausted them. I was particularly pleased to hear the noble Lord, Lord Cormack, express his passion and his very clear understanding of why the general duty is necessary to the work of the Equality and Human Rights Commission and also to the messages that we send out to the Lawrence family, to disabled people who are undergoing considerable difficulties in situations where, without a culture change, they will continue to be abused in institutions, and to others that we have mentioned throughout these debates. For them, I ask your Lordships to agree with my amendment tonight and to send it back to the Commons saying, “Please consider these arguments”, because they were only looked at in a very cursory way during the Commons debate. In fact, I believe the debate suffered a guillotine in the winding-up speech only three minutes after the Minister stood up. I ask the House to send this amendment back so that a proper debate can be had and the arguments examined properly. I ask your Lordships to agree to this Motion. I wish to test the opinion of the House.

--- Later in debate ---

Moved by

[Baroness Campbell of Surbiton]

As an amendment to Motion B, leave out from “House” to end and insert “do insist on its Amendment 36”.

Motion B1 agreed.

Enterprise and Regulatory Reform Bill

Baroness Campbell of Surbiton Excerpts

Monday 4th March 2013 Lords Chamber

Moved by

[Baroness Campbell of Surbiton]

71: Clause 57, page 57, line 9, leave out paragraph (a)

[Baroness Campbell of Surbiton]

My Lords, the purpose of my amendment is to retain Section 3 of the Equality Act. It is of critical importance. It articulates the fundamental principles that we as a society should be aiming for and clarifies the nature of the contribution that the Equality and Human Rights Commission should make towards those aims.

From the banking crisis to phone hacking, to the horrific abuse of people with learning disabilities, recent times have reminded us that culture, ethics and principles are at least as important as the law in securing a prosperous, safe, cohesive and healthy society. As Hector Sants, former chief executive of the Financial Services Authority, succinctly put it in 2010, until the issue of culture and ethics,

“is addressed we will not be able to prevent another crisis of this magnitude from occurring again”.

Section 3 explicitly imports the cultural and ethical principles of equality and human rights into the remit of the commission. It reinforces the notion that its role is more than promoting and enforcing the law. That is essential if it is to help bring about a society in which prejudice and discrimination are eliminated, human rights routinely respected and everyone can achieve their full potential.

Section 3 requires the commission to discharge its functions,

“with a view to encouraging and supporting the development of a society”,

in which specific aims are realised. This is what distinguishes it from other bodies. As Age UK notes in its briefing, it,

“makes clear that the job of the EHRC is to change culture, not just to enforce rules”.

The commission did exactly that in its widely praised inquiry into the human rights of older people receiving care at home. It identified an emerging problem and brought it to the attention of wider society with extensive media coverage. It looked beyond strict legal compliance to whether the principles of dignity, respect and autonomy were being upheld and made proposals including legislative reform. Is that the type of activity that the Minister associated with Section 3 when she said in Committee that the commission,

“should not be an impassioned lobbyist leading emotive campaigns”.—[Official Report, 9/1/13; col. GC60.]

or is it the role we want it to play—not simply a law enforcer but a body that uncovers scandals and working with others points the way forward?

--- Later in debate ---

[Baroness Campbell of Surbiton]

My Lords, I thank all the supporters of my amendment because they have expanded the argument by bringing forward evidence with brilliance and accuracy. I also thank the Minister. She is right to say that we have spent honest time together discussing this issue in great detail and she has tried hard to understand and reflect upon the arguments, but I have to say that I am disappointed with her reply. As the noble Lord, Lord Cormack, suggested, I thought that perhaps we could come back at a later stage to discuss an alternative that would meet the requirements of noble Lords who have participated in this debate. Like many organisations—I would say all of them—we feel that this is an area of enormous significance in terms of culture change in this country. I do not feel that Section 3 hindered in any way the difficulties faced by the commission when it came to merge.

When three major commissions at different stages of their growth and liberation are merged and, at the same time, another three strands are added, people are brought together to work on a totally new concept. I am not surprised that the commission had a difficult few years. I have merged two organisations and it took me five years to get them to work together successfully and well, so I do not think that that is a good argument. I do not agree with the arguments around wideness and ambivalence or on the fact that Section 3 somehow takes the rudder away from the Equality and Human Rights Commission. It does not; it just puts some passion into those sometimes very dusty legal arguments.

I have reflected deeply on this and worked hard to understand all the arguments for and against, but at this time we need to listen to and test the House to see what it has to say.

Enterprise and Regulatory Reform Bill

Baroness Campbell of Surbiton Excerpts

Wednesday 9th January 2013 Grand Committee

Moved by

[Baroness Campbell of Surbiton]

27: Clause 56, page 54, line 40, leave out paragraph (a)

[Baroness Campbell of Surbiton]

My Lords, I must declare an interest, having been a founding commissioner of the Equality and Human Rights Commission and its predecessor, the Disability Rights Commission.

The Government say that the objective of their commission reforms is to focus on the areas where it can add value because of its unique role and functions. I fear that the Government have yet to articulate what they consider this unique role and functions are and the basis for concluding that. Further, I fear that they have failed to explain why a commission with fewer powers and tools at its disposal will be more effective than one with the role and powers bestowed upon it by Parliament only six years ago. Today we are being asked to debate the commission’s role without clarity as to what the Government believe its functions to be. I hope that the Minister can explain this further to allay our concerns.

The Government have described Section 3 as a mission statement and have argued that its breadth has hindered rather than helped the organisation to define its purpose. We must assume from this that the aim of repealing Section 3 is to leave the commission with a narrower and more manageable role. A narrower role may be rightly achieved in two ways—by reducing the scope and issues with which the commission might engage or by reducing the scope of opportunities for the commission to engage with those issues. I see no evidence that the repeal of Section 3 would help to achieve the former.

Section 3 is to all intents and purposes an extrapolation of the duties in Sections 8, 9 and 10 of the Act, relating to equality, human rights and good relations. It plays an important role in binding and focusing the commission’s various duties, but it does not enlarge the canvas on which the commission is to operate. If the Government believe otherwise, I would be very interested to know from the Minister with which equality and human rights issues the commission would no longer be expected to engage.

From Section 3 it is also clear that Parliament did not foresee the task of achieving this vision as one for the commission alone. It envisaged the commission using its powers to provide leadership and to motivate others. The capacity of the commission to identify and agree priorities rests on internal leadership and external expectations, not on the law. So it seems more likely that alongside the wider legislative and non-legislative reforms, the repeal of Section 3 will concern the question of what the commission is empowered to do about equality and human rights. I wholly accept that the commission should improve its strategic focus, but it does not follow that it will be more effective by having fewer tools at its disposal. As Abraham Maslow said, if the only tool you have is a hammer you will see every problem as a nail.

The proposals before us are not simply legislative tidying. Rather, they sit alongside a range of other reforms that would fundamentally change what the commission is able to do. Already, the Government have taken away the commission’s helpline and ceased funding it to provide grants and to arrange conciliation. They have said they do not believe that the commission should provide guidance on the law to dutyholders because its promotional role prevents it doing so impartially.

The Bill proposes to change the frequency of the commission’s reporting on the state of equality and human rights from every three years to every five. It proposes to remove its good-relations duty—the only power that enables it to engage directly in relations between citizens. Separately, the Government have launched a review of the public sector equality duty. The views of the Prime Minister and the Justice Secretary on the Human Rights Act are well known.

We did not wish to create an enforcement factory in 2006, and I would guess that we do not wish to do so now, especially in a Bill to reduce the regulatory burdens on business. However, there is a risk that this is precisely what this package of reforms, including the repeal of Section 3, will result in.

In 2003, the Joint Committee on Human Rights, in its report on the case for a human rights commission, recommended:

“The commission we propose should not be seen as another inspectorate, advisory body, regulatory authority or enforcement agency. Nor should it be a body with an adversarial or litigious approach to its mission”.

Section 3 embodies this idea, placing the emphasis on promotion by requiring the commission to discharge its functions in a way that encourages and supports change—something of which I am very much in favour.

This approach also marked the convergence of thinking from the social model of disability, the Macpherson inquiry into the investigation of the murder of Stephen Lawrence—today’s headlines in the Daily Mail are a potent reminder of its continuing relevance—and the concept behind the Human Rights Act: namely, that if as a society we wish to hold these values, we have to take proactive steps to make them a reality. It confirms the function of the organisation as an agent of social change, empowered to work with others and not tasked simply with answering complaints from those who feel that their rights have been violated—normally the most articulate. As Conservative MP James Brokenshire said in a debate in the other place, one function of the commission is to try to stop litigation and to encourage a culture in which there is not always a need for a litigious approach. I recall that this was one of the DRC’s most effective ways of working. It resulted in a seismic shift away from discriminatory practice towards disabled people, making it less necessary to go down the expensive litigious route.

The EHRC’s more celebrated initiatives derive from its ability to act beyond legal enforcement and to make recommendations on how society should take forward equality and human rights—for example, in its inquiries into the human rights of elderly people receiving care in their own homes, into disability healthcare and into the exploitation of workers in the meat-processing sector. In each case, the commission has identified the problem, investigated it thoroughly, convened the relevant parties to explore what needs to be done and made recommendations for policy and legislative reform.

Uncovering scandals in society that we would not otherwise know about and need to put right is the hallmark of a modern commission. Do the Government view such activity as campaigning? Is it not right that the commission should support progressive legal cases such as that of Sharon Coleman, which secured protection from discrimination for 6 million carers in the UK? Is the Minister suggesting that the commission should not have a role as an adviser to Parliament on equality and human rights implications of public policy and legislation? Should the commission not draw our attention to rights, risks, violations, discrimination or inequality, or propose to us how these might be remedied?

How do we imagine the commission will perform its role as the independent mechanism required by the United Nations Convention on the Rights of Persons with Disabilities, promoting, protecting and monitoring implementation of the convention, if it cannot recommend policy and legislative reform? I look forward to the Minister’s response to all these questions.

The fundamental distinction between a campaigning organisation and the proper role of a body such as the commission is that the latter must act consistently within its statutory authority as mandated by Parliament and in the public interest. Section 3 of the Equality Act exemplifies the values which made me a keen supporter of the commission, and I felt that it was the right time for the DRC to be part of a wider, united enterprise. Those values lie at the heart of what others, too, respect it for.

In their summary of responses to the consultation on reform of the commission, the Government noted:

“The majority of respondents were opposed to repeal and were concerned about losing the guiding principles and values set out in the general duty, which had been debated in Parliament during the passage of the Equality Act 2006”.

In a nutshell, Section 3 says to us, “We are all in this together”. By bringing together equality and human rights, it departed from the idea of people being defined only by their differences—their gender, disability, age or race, for example—to that of people being defined by their common humanity. As the Joint Committee on Human Rights noted, Section 3 echoes the Universal Declaration of Human Rights, which states clearly that,

“recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.

The inclusion of dignity in the commission’s general duty provides the glue to bind together anti-discrimination and human rights. This is not about equality as sameness and uniformity, but the pursuit of dignity and substantive freedom for each and every individual based on recognising and accommodating difference. The values set out in Section 3 are not new; they are not even contested. As the noble Lord, Lord Boswell, a great campaigner for disability rights, said of Section 3 during the passage of the Equality Act:

“From a one-nation viewpoint, I have no difficulty at all with the general duty in clause 3—that is what most of us are in politics for”.—[Official Report, Commons, 21/11/05; col. 1331.]

They are enduring but adaptable values which help us navigate a path through our modern, open and plural society while staying true to our traditions of family, community, liberty, tolerance and fair play. In these most difficult times, it is more important than ever that we do not cast such values to the wind. My amendment is very simple: it would put Section 3 of the Equality Act back where it belongs. I beg to move.

--- Later in debate ---

[Baroness Stowell of Beeston]

They are separate because the public sector equality duty review, which we will debate when we come to the noble Baroness’s amendment about the equality impact assessment, is about whether the public sector duty is operating in the way in which it was designed. Is it achieving its purpose and its aims? We are reviewing how that operates. We are saying that the core function of the Equality and Human Rights Commission is very much rooted in its responsibilities for equality and human rights. The removal of Section 3 does not weaken its ability to do what it exists to do. Its removal is because we believe that it is a statement which should not sit on its own as a responsibility for the commission but as a responsibility for a wider set of public bodies, including Parliament.

[Baroness Campbell of Surbiton]

My Lords, I thank the Minister for her genuine attempt to understand and respond to all our arguments against removal of the general duty. I mean that; we have spent time together discussing this in detail. I also thank all noble Lords who have supported the amendment and I hope that they will forgive me if I do not respond to them by name. I am sure that they would want me to save my breath for my response.

I wish that I felt more assured—I really do. For myself and dozens of other people and organisations around the country, the significance of the general duty is quite apparent. I still struggle to understand how the repeal of Section 3 will assist the commission’s future. I do not feel that we have had tangible evidence or examples of what it does now that it would do better if the duty were removed.

We have talked a lot today about perception and mission statements. I was sorry that the noble Lord, Lord Lester, was not with us when I made my contribution. He asked someone to explain to him what is added by Section 3. Perhaps the noble Lord does not believe that the power of perception is as strong as the hand of the law. I say to all noble Lords that in my experience perception, not the law, has been the main liberator and discriminator all my life. I am positive that I am not alone in this.

The Minister also tells us that it is wrong for a statutory body to campaign for law or policy reform and that it should focus on promoting the enforcement of laws agreed by Parliament. I agree but—there is a but—there is so much more to a viable equality and human rights commission that would not, if it lost the general duty, have a mandate sufficient to comply either with the Paris principles regarding the status of national human rights institutions or with EU law regarding the mandate of national equality bodies. The Government need to think about this very carefully. Their view of us is really important in this area. I feel that we need more compelling examples of what will be improved by repealing Section 3 as I have heard none so far.

Although I will withdraw the amendment, I fear that if we do not have anything more convincing we will be back at Report, probably saying the very same powerful things we said today. The noble Lord, Lord Ouseley, rightly said, that this is not just about lawyers and the law; it is about people. It is wrong to say that Section 3 is a political statement. It does not imply to me or others that this is a unique role for the commission. I dare say that all the voluntary organisations in this country would be very hurt by that statement because they take Section 3, the guidance and the authority of the commission and run with it. If it is gone, we will be back to fragmentation. As I said, we are all in this together. Without it I will not feel that I am together with anyone. I beg leave to withdraw the amendment.

[The Deputy Chairman of Committees (Lord Geddes)]

My Lords, before putting the Question for withdrawal, it may be helpful to the Grand Committee if I say that I have received advice that in order to take part in discussion on an amendment, a noble Lord must be in his place throughout debate on an amendment, most particularly while the proposer of the amendment is making his or her speech. Thus, with great respect to the noble Lord, Lord Lester, his intervention, although out of order, is, nevertheless, on the record and will remain on the record.

Welfare Reform Bill

Baroness Campbell of Surbiton Excerpts

Tuesday 17th January 2012 Lords Chamber

Tabled by

[Baroness Campbell of Surbiton]

50ZE: Clause 76, page 56, line 8, leave out “personal independence payment” and insert “personal disability costs payment”

Welfare Reform Bill

Baroness Campbell of Surbiton Excerpts

Monday 12th December 2011 Lords Chamber

I would like the Minister to respond to the points I have raised as so far I am not convinced of the arguments for the Government’s reform. Indeed, I think it will damage thousands of families who rely on this support for their disabled child who does not quite meet the threshold of severity to keep the benefit level they once had. I beg to move.

[Baroness Campbell of Surbiton]

My Lords, I am happy to put my name to the amendment of the noble Baroness, Lady Grey-Thompson. Losing 50 per cent of the support currently provided by the disability element of child tax credit will be extremely difficult for many families who face considerable extra costs as a result of having a disabled child who may not meet the severe disability threshold.

The severity of one’s disability should not be the overall defining factor for eligibility to this financial entitlement. The impairment severity is a highly unreliable measure for financial support needed by families to offset the extra costs of raising these children. All manner of disabled children face the extra costs associated with overcoming socioeconomic and environmental barriers. Medical textbook impairment measures are only part of the picture. For example, according to the textbooks, as a child I was considered to be at the most severe end of the scale—very severe. This is still the case today. A person with moderate autism or cystic fibrosis, however, is deemed much less severe. But if you ask my mother who, in my school class, needed financial support the greatest, she would say without a doubt, “Lorna, Mark and Peter”. All would be deemed to have moderate impairments today. We all came from similar economic backgrounds; working class and money was extremely tight. So why were their needs greater than mine?

My mother explains much better than me—as always. Lorna, because she had a hole in the heart and needed expensive extra warmth, good nutrition and babysitting, as both parents needed to work to survive and no family friend or family members felt confident enough to care for her. They were scared: she had a hole in the heart; she was going to die at any moment. Actually she was not, but that was the assumption. Mark, because he had moderate autism, whose particular behaviours could not be financially accommodated by his disabled mother, who herself needed support financially to raise his other two brothers as well. Finally, Peter, whose asthma meant several emergency admissions to hospital per month making it almost impossible for his single parent mother, with two other young siblings, financially to bear the cost of transportation to the hospital and childminders for the other siblings. None of these children is considered to be textbook severe, yet compared to my family their disability-related financial need was much greater.

I believe the Government’s obsession with aligning certain benefits to be really hazardous—unintentional, of course. Such assumptions are not based on practical evidence, as we realised when the Government attempted to align hospitals with residential care homes when looking for areas to cut the significant DLA budget. Please do not let us make the same mistake again.

The noble Baroness, Lady Grey-Thompson, has given reams of evidence from various notable NGOs and charities which I do not need to repeat. Before finishing, I did contact the eminent Dame Philippa Russell for advice as to what to highlight today. Noble Lords will know of Dame Philippa. She is famous for advising successive Governments for nearly 40 years on disabled children, and she ran the Council for Disabled Children for 30 of those years. She is currently the chair of the Prime Minister's Standing Commission on Carers. She said to me:

“I am very keen (with my two sector hat on) to stress the need to move away from this categorisation of people as having severe, moderate, low needs. None of those categories make sense without screeds of explanation that tax credit assessors simply will not have. They completely negate the idea of prevention and support”.

Let us listen to the experts and accept the amendment, which I feel makes sense.

[Baroness Thomas of Winchester]

My Lords, I spoke to a similar amendment to this in Grand Committee, but it was grouped with various other amendments and the debate was therefore not as clearly focused on disabled children as it might have been. In this amendment, the focus is simply on ensuring that disabled children do not receive less support in universal credit than they did under the benefit and tax credit system. The two noble Baronesses from whom we have just heard said it all and I shall not repeat what they said. However, it may be worth reinforcing how this works.

The disability elements of child tax credit will be replaced under universal credit with either a disability addition if the child is on the lower rate of the care component of DLA, or a higher addition if the child is in the middle or top rate of the care component. Children who are registered as blind will now qualify for the higher addition. The difference in rates is significant. As the noble Baroness, Lady Grey-Thompson, said, the lower addition will be worth about £27 instead of the current £54. We know that children will still receive DLA, even after other disabled people have transferred to the personal independence payment, and there are three rates of care component within DLA—lower, middle and higher. In the benefits system, the middle and higher rates usually go together, but under universal credit the middle rate will be aligned with the lower rate. This means, as we have heard, that children with significant impairments, such as those with Down’s syndrome or who are profoundly deaf and who now receive the middle rate, will in future be entitled to only the lower rate. Thus, their families will lose out.

The bar is set pretty high for children to qualify for the highest rate of the care component. They either have to be visually impaired or need not only frequent care or continual supervision by day but prolonged or repeated care during the night. This means that children who are, say, registered as blind will be entitled to £77 a week, while children with Down’s syndrome or who are profoundly deaf will receive about £26 a week.

The rationale for the change is, as we have heard, supposedly to align the rates of support for adults and children and to simplify the additions—as well as to target those in greatest need. However, the gateways for children and adults are so different that the alignment is not really relevant. As for targeting those in greatest need, it is a matter of judgment as to whether it is better to help a greater number of families with disabled children or to give fewer families greater help. What worries me most is that families with disabled children are disproportionately more likely to live in poverty, as many studies have demonstrated, and as the noble Baroness, Lady Campbell, said. Parents of disabled children are less likely to be in work, so the so-called tidying-up and aligning exercise is likely to push already poor families deeper into poverty.

I would very much welcome some help regarding the transitional arrangements, which I failed to grasp when my noble friend described them in Committee. Perhaps he can tell us about them in his reply. We are having to cope with a difficult question.

Welfare Reform Bill

Baroness Campbell of Surbiton Excerpts

Wednesday 16th November 2011 Grand Committee

Moved by

[Baroness Campbell of Surbiton]

86ZZZV: Clause 78, page 57, line 2, at end insert—
“( ) must provide for a minimum one year trial period for the assessment process to be implemented on new applicants and a formal independent review of the trial period before the assessment process is used to transfer existing DLA recipients; ( ) must provide for disabled people’s organisations to be involved in the assessment process; and( ) must provide for people with significant costs of living as a result of an impairment or health condition or both, who are unlikely to experience a change in any or all of the health conditioning impairment or costs of living over a five year period, to not undergo more than five yearly assessments.”

[Baroness Campbell of Surbiton]

My Lords, the amendment seeks to enhance disabled people’s confidence in the new testing system and to ensure that limited government resources are not wasted on an ineffective or inappropriate assessment system. It dovetails well with the group of amendments we have just debated.

We are well aware now—as the Minister has recognised —that there have been enormous inadequacies in the work capability assessment approach to incapacity benefit reform, which has seen thousands of disabled people unhappy and inappropriately found fully fit for work when they were not. The system wastes considerable public resources, and appeals alone cost £19.8 million last year. It is deeply worrying that the DWP estimates higher costs for correcting procedural or assessment failures this year. This is despite the assessment having run for three years already at an annual running cost of £100 million for the assessment alone and ignoring DWP costs. I am sure that the Government wish to avoid introducing another assessment system which invites such public controversy and which seems to represent such poor value for money.

Trialling is absolutely necessary. It is somewhat ironic to suggest to disabled people receiving DLA that their needs are no longer affordable but that £675 million is available to pay for the new PIP assessment. As we have heard, this benefit helps with the basic essentials of living, including illness and impairment-related diets, heating and help with personal care and equipment. My amendment would ensure that money is not wasted on an ineffective test by providing an appropriate trial period for new claimants and a report to Parliament on the implementation of the new testing system. This approach offers a better chance to improve the process before disabled people currently receiving DLA are transferred to the new system. Let me explain in more detail what I propose.

--- Later in debate ---

[Lord Freud]

My Lords, I am very sympathetic to the thrust of the noble Lord’s point. Noble Lords will be aware that when we designed the universal credit we did it on a trajectory. It is really important that we get the right trajectory on all these introductions. In that context, rather than having a formal trial which has some very specific implications around that process, I take the point about a trajectory of introduction. Indeed, we are looking very hard at the optimum trajectory of introduction.

[Baroness Campbell of Surbiton]

I thank the Minister for his response. There is a lot in it, so I will deal with each part in turn. I thank other noble Lords for their contribution to this amendment. They have expanded it and given it colour, depth and breadth, and I am very grateful to them for that. I was particularly grateful to the noble Lord, Lord Boswell, for saying that this is a process of discovery. It is a process of discovery, not just for the assessor but for the disabled person.

Noble Lords will understand that this is a very old, tried and tested benefit which has enormously benefited disabled people in making them more emancipated and independent. For me, as an old researcher, not to trial this seems absolutely crazy. I was heartened to hear the Minister’s comments with regard to the testing that went on over the summer. I am aware of it and I have tried to get as much information about it as I can. It is still a bit secretive, but I will do my best to get hold of more information. However, it is not a trial. It is not the real thing. The 900 test assessments are just testing out questions and testing the ground, not the life that a person will have to lead after they have been given their award. I still believe that a proper controlled trial is very important for this incredibly complex benefit. It seems simple but what it gives people is complicated.

That takes me to the contribution of the noble Baroness, Lady Howe, who pointed out that the reliance on judgment in relation to people with learning difficulties and people with mental health problems would itself be tested. Again, I am in a bit of a conundrum here as the Government have stated again and again that one of the reasons for reforming this benefit is so that they can better target people with mental health problems and people with learning difficulties, who are not necessarily seen as recipients of disability living allowance as they can walk, talk, leave the house without a wheelchair and move around. I am afraid that the assessors will still see disabled people in terms of their medical condition. Independence will be seen in terms of whether someone can give an affirmative answer to the questions: Can you walk? Can you see? Can you pick up a cup? Can you go down the road? If we are to target a significant group who have probably not benefited from DLA in the way that people with physical impairments have done in the past, that is another reason to hold a trial.

I know that the Minister and the Government are very keen to involve disabled people in the process and have done their best to co-produce, but the few people who have been involved are the very people who have come back to me to say, “Jane, we must have a trial, because this is a very big step for both the assessors and disabled people”.

For all those reasons, I am keen that we return to the issue of a trial. The trajectory might be a way to slow the process down. The reason why we decided to table the amendment just for first-time claimants, not for those going for their reassessment, was because that would be manageable. There would be another year for those of us who are awaiting this change to look at what is going on and how it would affect current recipients. So it was a practical issue.

For all those reasons, we will need to return to the issue of trialling, analysis and evaluation. In the mean time, I will do my best to get hold of all those testing papers in the depths of the DWP and then, we hope, we will not feel that it is so necessary to have a trial. For now, I beg to withdraw the amendment.

Amendment 86ZZZV withdrawn.

--- Later in debate ---

[Baroness Wilkins]

My Lords, I support this amendment. The range of people who will need aids and adaptations is enormous. One of the groups who are not highlighted in the new criteria is those people who need communication aids, which can be extremely expensive and of which there is, at the moment, a very erratic supply. Whereas a child might be given a communication aid and be able to communicate with the world by using it, after the age when education finishes it becomes a very dodgy business. We are talking about a huge range of people. In the area of mobility, the cost of special shoes is £100. It is such a complicated area that the Government would be extremely wise to think again.

[Baroness Campbell of Surbiton]

My Lords, I am also extremely supportive of this amendment. It is a government misuse of the social model to withdraw support by saying that if you have a decent wheelchair-adapted house and car your disability goes away. That was quoted to me by a DWP civil servant as a social model assessment. That is exactly why I tabled an amendment on social model assessment—so that we can teach assessors what the social model really means.

The noble Baroness, Lady Thomas, is absolutely right. If I were assessed today, I would probably be taken off DLA. I have my wheelchair, my adapted house, my car and some personal assistance. However the cost of maintaining that is absolutely phenomenal. My disability has gone away; it is away today. I feel equal to all who are here but tonight it might be different. Therefore, I am absolutely in favour of placing this in the Bill. It is a perverse incentive to account for aids by means-testing. It means that people might stop using their electric wheelchairs and adapted cars to get the benefit. They might hide them in the garage or swimming pool. Apparently people put their cars there to hide them from the taxman. As noble Lords can see, I am very supportive of this amendment.

[Baroness Grey-Thompson]

My Lords, I also support the noble Baroness, Lady Thomas of Winchester. When I first looked at this area, I found it quite confusing and some of it not very simple to understand. Some aids and adaptations are taken into account for the assessment. For example, for the mobility component, any aid that the person can use to assist them in walking is taken into account. However, someone who can self-propel a wheelchair will qualify because they are still unable, or virtually unable, to walk.

I declare an interest as a wheelchair user and someone who spends considerable time making sure that I can get the right aids and equipment for me to live as normal a life as possible. As the noble Baroness, Lady Campbell of Surbiton, has said, you try to get as much independence as possible. For me, it is about getting a small chair that means I can fit into every lift in this building, which is a challenge when they are all built into the various chimney stacks; and one that is light enough to push for more than 50 metres, which does not get you very far in your Lordships’ House on the very expensive carpet that we have here. I also need to get it in and out of my car. I spend a lot of time making sure that equipment is right for me but I could easily buy a chair with wheels that are 16 inches in diameter, rather than 11 inches, and that weighs 30 kilos instead of four and a half. That would change my impairment considerably but I want to be as independent as possible. Those aids and adaptations make my life easier but they do not stop the patronising attitude that is out there. They do not stop the barriers.

I also want to encourage disabled people to be as fit and healthy as possible but we could be in a situation where we prevent people exercising and doing physical activity because they are penalised for doing so. Again, in my case, I spend several hundred pounds on the right cushion to sit on to ensure that I do not get a pressure sore. A cushion cover for that cushion is around £120. This costs the National Health Service considerably more than it would if I sat on a piece of old, tatty foam. However, if I sit on a piece of old, tatty foam, I might be in a better position to be considered for DLA in the future. It is the same with adaptable housing, and lifts and ramps. We are getting into a very difficult situation here, where the things that should be making disabled people’s lives easier, to enable them to contribute, will actually encourage them to think about things in a very different way.

It is very important we get this right. We do not want to push disabled people back into their houses, or ghettoise them. We are in a real danger of doing that if we do not find the right balance, and make sure that disabled people have access to the right equipment to enable them to live as independent lives as possible, and to contribute towards society.

--- Later in debate ---

[Baroness Lister of Burtersett]

My Lords, I support the amendments which seek to revert to the existing qualifying period of three months. The noble Baroness, Lady Thomas of Winchester, said that six months is a long time to wait for extra resources, and we have heard from a number of noble Lords about the significant additional costs which can be incurred during this period.

However, there is a further twist in the tale—the benefit cap—which we will be discussing next week. PIP exempts people from the benefit cap but, of course, if you cannot qualify for PIP for six months then you would not only have to wait for additional resources but could find that your own resources are being significantly depleted during this period. This is very worrying. Can the Minister say whether any estimate has been made of the number of people who may be caught in this way? I suspect that it is not a large number, but one person is one person too many. It could be potentially very frightening for people to find that they might have to face this horrible benefit cap.

I hope that the Minister will accept the amendment. If not, and the six-month period goes ahead, a perhaps minimalist way of addressing the question—although it does not really address it—is that someone who qualifies after six months should have the money backdated to cover what they lost through the benefit cap.

[Baroness Campbell of Surbiton]

My Lords, I support the amendment. I hate the term “alignment”. I worried about it enormously when it was used by the Government in connection with the proposal that mobility allowance should be removed from people in residential care homes because they wanted to align it with hospitals. We are now back to “alignment” again.

One of the major problems that nurses and doctors in specialist units face in trying to discharge their patients with brain injury or the onset of MS, which causes vast deterioration, is getting their support sorted out so that they can leave the hospital. DLA with a time limit of three months is cited as being difficult to get into now, so raising it to six months is wrong. We forget that people do not on day one think of their long-term disability—whether that be a spinal injury, a brain injury or something that is sudden and quick—and say, “Ah, I must put in my DLA request now so that I will get it in six months’ time”. That just does not happen.

This is another delay for people who find themselves in an appalling situation, in a crisis, and having to face even further barriers to the support that can give them some independence, enable them to get back into the community and return to their families as soon as possible. The three-month eligibility period should remain. The six-month period will cause more problems. Hospitals will despair about discharging people and it could mean that disabled people will have to leave work earlier than they would have because they are not getting the support that they require quickly to keep them mobile and to enable them to stay in work. It is a lose-lose situation.

Welfare Reform Bill

Baroness Campbell of Surbiton Excerpts

Monday 14th November 2011 Grand Committee

Moved by

[Baroness Campbell of Surbiton]

86ZZZG: Clause 75, page 55, line 5, leave out “personal independence payment” and insert “disability living costs allowance”

--- Later in debate ---

[Baroness Campbell of Surbiton]

My Lords, I shall speak also to the other amendments in my name in this group. First, I should like to take a moment to explain that due to the number of amendments I have tabled for this Sitting, I will not have the lung capacity to give the detailed explanation that is required for all three. I have naturally called on an Olympian to help me out with such an Olympian feat. My noble friend Lady Grey-Thompson has kindly offered her voice for this afternoon but, as permitted by the usual channels, she will also be allowed to speak separately on the amendments if she chooses.

I am really pleased to be kicking off the amendments on personal independence payments, which are known and valued as disability living allowance. I also declare an interest as a very long-term user of DLA and its predecessor, attendance allowance. This is a holy-grail area for disabled people and we should proceed with great caution. I feel an enormous sense of responsibility in proposing the first group of amendments as I know how very important this benefit is and has been to millions of disabled people in the UK.

So where better to start than with the entitlement intention, starting with its name. Naming ceremonies are very important because, as the noble Lord, Lord Kirkwood, rightly said on day 1 in Grand Committee,

“the name is very important because it sends a signal about what the benefit is for. I am not seriously suggesting at this stage that we change the name, because I am sure that thousands of pounds have been paid to consultants to craft the artwork around universal credit”.

However, I am suggesting a name change, even if the artwork is outstanding.

Getting the name right for a state benefit is crucial for targeting and clarity purposes. Those disabled people who need to take advantage of its intent must clearly understand what it is for and who is entitled to it. The name should also prevent any media or general public misunderstanding about its purpose. I think that we have had quite enough of that over the weekend— I certainly have.

This amendment intends to do both of those things. The noble Lord, Lord Kirkwood, suggested:

“It … occurred to me that ‘universal credit’ does not mean anything very much”.—[Official Report, 4/10/11; col. GC 326-27.]

However, the phrase “personal independence payments” does suggest something. Unfortunately, it does not suggest what the Government intend. Indeed, the term will create greater confusion than currently exists about disability living allowance. I attempt in this amendment to explain the conundrum and the complexities of the definition and intent.

At this point, Baroness Grey-Thompson continued the speech for Baroness Campbell of Surbiton.

Changing the name of disability living allowance to personal independence payment, I am sure, was a well-intentioned idea. It may have arisen from the Government’s independent living strategy 2008 or at least the principles that underpin it. The strategy sets out the aim that policies and services should enable disabled people to have choice and control over the support that they need to go about their daily lives. It is this definition of independent living or having choice and control over support that then informed the entire strategy.

While it must have seemed logical to use the term “independence” when reforming DLA, personal independence does not mean the same as independent living. If you ask the proverbial man in the street what “independence” means, he would say that it is doing things for yourself and not having to rely on others or on the state.

[The Deputy Chairman of Committees (Baroness Fookes)]

My Lords, we have not heard the Division Bells but a Division is taking place in the Chamber. The Committee stands adjourned for 10 minutes.

--- Later in debate ---

[Baroness Campbell of Surbiton]

My Lords, my noble friend will continue.

At this point, Baroness Grey-Thompson continued the speech for Baroness Campbell of Surbiton.

--- Later in debate ---

[Lord Freud]

My Lords, I cannot agree more. It has not been properly delivered. It has not been a proper gateway. It needs a new benefit and that is what we are trying to introduce.

Let me just get those figures correctly for you— it is £600 million overpayment and £190 million underpayment. I, like the noble Lord, Lord Touhig, am as concerned about the underpayment as the overpayment.

[Baroness Campbell of Surbiton]

My Lords, I thank the Minister and all noble Lords who have contributed to this debate. In fact, I am quite overwhelmed—I did not expect such enthusiasm for this first amendment, although it is a very important one. I have to say again that this is not about a name; it is about intent. I believed, and I stand by it, the noble Lord, Lord Newton—who is now in this Room—when he said back in 1990 that the DLA was better assistance with the extra cost of being disabled. The DLA helps deliver that cost. I think it applied then and I am sorry it applies now. There is intent and it is important to get this name right.

I am so pleased that so many noble Lords have given their personal experiences and examples of the use of the DLA and that other noble Lords have talked about their experience of understanding the needs of other disabled people who may not be in this Room, such as people with hidden impairments and mental health conditions. Yes, we must reform the DLA so it meets the extra costs of all disabled people in this country not just those with physical impairments.

I do not know what focus groups the Minister was at when the name was discussed but it certainly was not with the disabled people that I have been talking to over the last couple of months. I do not want to boast, but I know rather a lot of disabled people. I have been working alongside disabled people for 30 years and I am tapped in to some of the biggest organisations for disabled people in this country which have a long history and authority in this area. So I trump the noble Lord when it comes to knowing what disabled people think about this amendment and its intent.

I am of course pleased that we might think of looking at the name again and I am thrilled that the Minister will be going back to the Minister for Disabled People in another place to discuss this. But I have to say that I rather like the proposal of the noble Lord, Lord Skelmersdale, of the “personal disability costs payment”. I am not crazy about the word “allowance” either, so I am happy to discard it and go with what disabled people feel comfortable with. Let us remember that it is what disabled people are most comfortable with that is most important. They have suffered from the most awful six months of media vitriol on disability allowance, and I know that for most of the people who use it, it is not about them. I feel really depressed when I open the Daily Mail in my mother’s house—I want to make that point—and I have to say that I feel a bit got at. But if I feel a bit depressed, think of what it is doing to hundreds of other disabled people.

I am glad that we have kicked off with a debate about the name because it has got all of us in the Room really focused on the issue, but having heard the debate, for now I beg leave to withdraw the amendment.

Amendment 86ZZZG withdrawn.

--- Later in debate ---

[The Countess of Mar]

My Lords, I think the noble Lord, Lord Newton, put his finger on the button in his first comments. It is people’s fear of what is going to happen when they have a medical examination. Many of them have already had experience of DWP medicals, and from the correspondence I have had they are extremely distressed about what is going to happen to them in the future. It may be that they are dramatising, in which case we would be very pleased to have our minds put at rest, but on the other hand, if we are making this 20 per cent cut in expenses, they are bound to be frightened because these are people at the bottom who are going to be chopped off, and they do not understand how the process in going to happen.

[Baroness Campbell of Surbiton]

My Lords, I, too, support this amendment. In fact, it was down in my name, but when I saw how many amendments I was going to put down I thought I was being too greedy. My question to the Minister is very short. Has he had discussions with those in the Department of Health responsible for the prevention agenda with regard to closing the basic rate? It will have a massive impact on the prevention agenda, which is very much about giving a little bit of support and keeping people independent for a lot longer with a lot less cost for healthcare and social care services.

[Lord Low of Dalston]

My Lords, my name is on the amendment. I will very briefly make clear my support for it. Most of the things that I intended to say have been said, but I will underscore them. My first point is very much the same as that of the noble Lord, Lord Newton. The proposal to eliminate the lowest rate of DLA care when introducing the daily living component of PIP at only two levels is one of the principal causes of the fear and apprehension on the part of disabled people that we talked about when discussing the earlier amendment of the noble Baroness, Lady Campbell. As we heard, we are not talking about a small number of people but 652,000, or nearly three-quarters of a million. That is a substantial consideration of which the Government should be mindful.

My other point, which I do not think anybody has made, is that the amendment of the noble Baroness, Lady Campbell, allows the Government room in regulations to reduce the number of disabled people receiving the lowest rate of the care component while still ensuring that some of those who currently access this level of help will not be cut adrift at a stroke from support when the new benefit is introduced. Now I come to think of it, this point is the same as that made by the noble Lord, Lord Newton; it is about transition and flexibility. If the Government, for cost considerations or for any other reason, feel it imperative to push ahead in this direction, I urge them to give serious thought to the question of phasing out and showing flexibility on the precise number who will be cut adrift from the benefit at a stroke. If we need to lose some people, perhaps consideration can be given to articulating the benefit in such a way that not all 652,000 people are affected at once.

--- Later in debate ---

Moved by

[Baroness Campbell of Surbiton]

86ZZZL: Clause 76, page 55, line 18, after “condition” insert “and the social, practical and environmental barriers they face as a disabled person living with that condition”

[Baroness Campbell of Surbiton]

My Lords, I tabled this amendment truly in the spirit of modernisation. The Minister and the Government have called for modernising this benefit and I am at one with that. The purpose of the amendment is to ensure that the assessment process used to determine eligibility for PIP will be based on the social model of disability. I was inspired to table this amendment by the document, The Future of PIP: A Social Model Based Approach. It was conducted by Scope and has sign-up from practically all the major disability organisations that you can think of.

I have therefore proposed inserting the words,

“and the social, practical and environmental barriers they face as a disabled person living with that condition”,

after,

“the person’s physical or mental condition’,

thereby changing the assessment originally proposed from purely a medical analysis of the barriers faced by the disabled person to a social model approach. This does not mean that the person’s medical condition will not be considered—quite the opposite.

The social model of disability is about recognising the,

“physical, sensory, intellectual, or psychological variations, which may cause individual functional limitation or impairments, but accepts they do not necessarily lead to disability, if society makes environmental, economic and attitudinal adjustments, which take account of and include people regardless of their individual differences (impairments)”.

That is a quote from Professor Colin Barnes, who has written some of the greatest books on the social model of disability.

This amendment therefore takes a modern approach to the assessment process required if a disabled person wishes to become eligible for PIP, or, I hope, DLCA or PIPO. I feel that the Government will want to welcome this amendment. The Minister will know that they have a robust commitment to the social model of disability by endorsing and adopting the 2005 life chances strategy when taking office. That strategy is entirely informed by the social model approach and the Government have said repeatedly that they want to help disabled people to overcome the barriers that they face to leading full and independent lives. They want to ensure that that support is focused on those with the greatest barriers and to more accurately assess who would benefit most from additional support, which is warmly welcomed. Yet despite these bold commitments, so far civil servants have largely designed a medical model test with a tweak of social model now and then that will not deliver these admirable aims. I have a sneaking feeling that the Minister will assure me and other Members of the Committee that the new draft assessment process has now been redesigned to take more account of the environmental and social barriers that get in the way of disabled people’s inclusion in society.

This is very good news and I particularly welcome the fact that the Government have at last begun the work co-productively with a small number of disabled people, and in particular members of their own advisory group on disability—Equality 2025—to redesign parts of the assessment process. However, I have very briefly read the new draft. I feel that it is only just a start and that in order to ensure the social model approach to assessment is maintained by those eventual assessors, who are unlikely to be steeped in the social model of disability, the Government really need to nail their colours to the mast. Where better than in the Bill?

--- Later in debate ---

I mentioned earlier that considering these wider factors was likely to require longer, more intrusive and more expensive assessments as assessors would need to cover much more ground. They would also be more likely to require more regular reassessments as these external factors could be liable to change more often than the impact of impairments themselves. While we want to review circumstances more frequently in the new benefit, we do not want more assessments than are necessary. Considering that these factors might also lead to an increase in uncertainty around entitlement for individuals and to appeals as people might have very different views about how these external barriers affect them, we are keen to avoid this both for the stress this causes and the cost of handling appeals. Therefore, while I understand the noble Baroness’s position, we do not think that including social factors in the assessment is workable. We want it to be simple, objective and consistent. On that basis, I urge the noble Baroness to withdraw her amendment.

[Baroness Campbell of Surbiton]

I thank the Minister for his comments. I particularly thank all noble Lords who have supported the amendment and teased out some parts of it. The social model sounds so easy but once you start looking into it, it becomes more complex. If the Minister is so confident about this new middle ground called the bio-social-medical model, which I have not heard many disabled people writing songs about recently, why is it not coming up in the guidance or in the Bill? If he is so confident that the social model will be incorporated in the new assessment, why not put it in the Bill alongside the condition? Then the middle ground would be there. It informs and gives intent clearly to all those who are assessing from that legislation.

I wish I had the Minister’s faith that society and the assessors will assess from a social model perspective as well as a medical one. I do not have that faith. Most people when they meet me do not ask, “What can I do to make it easy for you to come around to my house for a gin tonight?”. They ask me what is wrong with me. I get that nearly every week. Everyone wants to know my medical condition before they invite me to their house. The noble Lord, Lord Wigley, clearly talked about that “light bulb moment” when everything became clear. I believe that by putting a social model definition in the Bill, it will help others to have that light bulb moment. I do not accept that a more social model approach or a social model-informed approach will lead to less objectivity.

The points-based descriptor approach such as the work capability assessment, which it should be noted has been continually subjected to widespread criticism and a high level of appeals overturned in favour of the claimant, has sparked off the need for a four-year review. Professor Harrington says that we must take a more holistic, social model approach to assessment. Using a points-based, tick-boxed descriptors approach will not capture enough information about the barriers and costs faced by disabled people on a daily basis.

The Government also seem to have concerns about inconsistency as an excuse to standardise disabled people’s experiences. That is precisely what we are not doing here. My alternative approach recognises the diversity of difficulties faced by disabled people. Difficulties arise from a plethora of barriers, which is why you can have two disabled people with the same condition or impairment but who face different social, practical and environmental barriers as a result of disability. Earlier today, I heard about the disability-related cost assessment of a man called Ali Kashmiri. His costs and needs are entirely different from mine, although we have exactly the same impairment and need for a wheelchair, which again shows a need for a social model approach.

I believe that the Government are working hard to make the assessment process more evenly constructed between a medical and a social model approach. However, there is work to be done and I look forward to discussing further with the Minister the new assessment criteria and to hearing the responses of other disabled people to the criteria. When we look at that, perhaps we will come back to this matter. But, for now, I beg leave to withdraw the amendment.

Amendment 86ZZZL withdrawn.