Disabled People: Independent Living Fund

Lord Bichard Excerpts

Monday 31st March 2014 Grand Committee

[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.

Pensions Bill

Lord Bichard Excerpts

Monday 13th January 2014 Grand Committee

Debate on whether Clause 25 should stand part of the Bill.

[The Deputy Chairman of Committees (Lord Bichard)]

I should point out that this debate has been de-grouped from subsequent Amendments 52 to 58.

Welfare Reform Bill

Lord Bichard Excerpts

Wednesday 25th January 2012 Lords Chamber

[Baroness Hollis of Heigham]

My Lords, we should be grateful to the noble Baroness, Lady Hollins, for raising this issue, which comes at a point at which existing recipients of benefit may be experiencing real pressure. I hope that the Minister will be able to illuminate more fully than he has so far the Government’s intentions in this field. We are exceedingly grateful to the noble Baroness.

I think we all accept that one of the big problems with our current benefits system, which I strongly hope and believe universal credit will help to rectify, is that the complexity of benefits—the fact that they overlap and there is no simple, clear or obvious way of ensuring the appropriate entitlement—has been a great cause of error by both officials and claimants, and of fraud. These are built into the system in the present way in which it is organised. One of the reasons why I welcome universal credit is that the simplicity of a single benefit—with its clarity, its monthly paper trail and so on—should, I hope, allow us to overcome some of those difficulties.

Overpayments will still happen, and there must be a presumption, as with banks, that if there has been an overpayment one should seek to recover it because it properly belongs to the taxpayer. However, many benefit claimants cannot afford it and that should be one consideration; it may in that case properly be wiped out. Secondly, the benefit claimant may be under great stress, perhaps suffering from terminal illness or caring for someone with terminal illness, which has been overlooked and it is not now possible for them to repay; or the claimant may be in a mire of debts, including for utilities or rent, and if one sought to have a speedy recovery of any overpayment one could end up leaving that claimant homeless.

I am happy to leave it to the discretion of the local offices as to whether any overpayment should be pursued, deferred or patterned slowly for repayment, only if the Minister can give us full assurances about how that discretion will be used wisely and decently. Perhaps we could, in conjunction with the relevant voluntary organisations, go over the code of practice again in the light of its need to be clarified, given universal credit, and ensure that that code of practice has a statutory basis and that, if local decision-makers do not follow it, that would be a basis for appeal to a tribunal.

As I have said, I believe that if someone can afford to repay an overpayment and it is reasonable and decent to seek to get that repayment, we should do so, but for many people on benefits that will not be the case. It would be very helpful if the Minister could explain exactly how he will ensure that local discretion is exercised wisely and decently.

[Lord Bichard]

I support this amendment as someone who used to be responsible for delivering the benefits system. When I was in that position, I remember railing against the complexity of the system and am therefore delighted that we are doing something about that. I also railed against the complexity of some of the bureaucratic communications that were sent out. Since I am now more often on the receiving end of those kinds of communications, I fear that my railing had little impact because they are still excessively complicated and I find it quite difficult to understand some of the letters that I receive.

It is placing a very heavy burden on benefit recipients to expect them to understand fully all the communications that they receive and therefore fully to appreciate sometimes when an overpayment has been made. For those of us who had an overpayment of, say, an occupational pension that we have to repay, irritating though it is, we can probably afford to do that over a period of time. It is a very different issue for a benefit recipient to repay a large sum of money in their circumstances. Therefore, I support the amendment. It is really important to get some clarification of the situation as we move forward.

[Baroness Hayter of Kentish Town]

My Lords, it seems that the HMRC’s position on tax credits is to say, “If we fail to meet our responsibilities but you meet all yours, we won’t ask you to pay back all of an overpayment caused by our failure”. That is quite a strong statement of their side of the bargain and recognition of an error made by HMRC. Its own code of practice and guidance sets out the limitations of payments where a claimant is experiencing hardship and the circumstances in which an overpayment will be written off.

Given that we will now have a new and unfamiliar system of universal credit, once it is clear both that there has been an official error and that the recipient could not possibly have known about it, if all those overpayments were to be clawed back in those circumstances the officials would have precious little incentive to get the system right, despite the hardship that that could later cost claimants who, through no fault of their own, were overpaid.

In Committee, the noble Lord, Lord Freud, said:

“Although the starting point for overpayment recoverability will be that almost all overpayments of working-age benefits … will be recoverable … DWP will consider a claimant’s means, income or expenditure if the debtor”—

I do not like that word because it suggests that the claimant in some way invited this—

“considers that they are in hardship”.

However, that means that repayment is essentially means-tested in that the DWP will have the discretion to write off an overpayment based, in the Minister’s words, “on their individual merits”.

The Minister promised the Committee that the DWP,

“will ensure that deductions from benefit or earnings to repay an overpayment should not lead a debtor”—

a claimant—

“to suffer undue hardship”.—[Official Report, 23/11/11; col. GC 468.]

However, it seems to me that this has two problems. First, it is discretionary and possibly means-tested but without anyone knowing the rules. HMRC’s draft code, which was sent to us in December, as the noble Baroness, Lady Hollins, has said, says only that it might decide in exceptional circumstances not to seek recovery of an overpayment or part of it and that there are no prescribed circumstances for a discretionary write-off, although it hints that it would do so only in cases of immediate significant family hardship or a threat to their health, and emphasises that hardship is taken to be “other than financial hardship”.

Secondly, the code relies on claimants knowing that they can appeal against a required repayment without having been informed about that. The draft leaflet really does not make it very clear, nor does it explain how to appeal. If I have understood it correctly, it says only that you can consider the amount that is being asked for, but not the fact that you have to pay it because of your own circumstances. The Minister said in Committee,

“that if the debtor considers they are in hardship, they can say that and then there is a process built on that”,—[Official Report, 23/11/11; col. GC 469.]

but it is not clear how that would work. If this amendment falls and the system proceeds, will the Minister assure us, first, that anyone asked to repay to cover for official error will be told of their right to appeal; secondly, that they will be given rather more guidance than that given in the draft leaflet as to the circumstances in which any write-off will be allowed; and, thirdly, where the repayment is sought from landlords, which in certain cases it would be, that they will also have the right of appeal against a loss of income over which they will have no control?

The Minister knows that the IT problems caused significant headaches and hardship for many claimants in the early days of tax credits. Getting the position right on overpayments and ensuring that claimants do not feel that they have been unjustly made to pay for the errors of government officials will be essential to building confidence in universal credit. We look forward to the Minister’s response to these and the other queries raised, and emphasise that this amendment is about the consequences of official error, not of claimant mistakes.