Social Security (Disability Living Allowance, Attendance Allowance and Carer’s Allowance) (Amendment) Regulations 2013

Lord Hardie Excerpts

Monday 24th June 2013 Lords Chamber

Those are my three points: the number of cars that we are talking about, which I judge to be about 180,000; the problem of the length of time to hear appeals, which mean that more cars will be lost which then have to be restored—unless the Minister can calibrate and bring together the two; and, thirdly, the need to ensure that we do not send disabled people and their carers into isolation. That is particularly marked in rural areas. There, disabled people have few options. They cannot afford taxis, they do not have buses, they cannot walk those distances, and they cannot run scooters because the distances are too far. Without their Motability car, they are locked into their home as well as their isolation, as are their partners. For those three reasons, I very much hope that the Minister can give us more satisfactory reasons this evening than we have had so far.

[Lord Hardie]

My Lords, I declare an interest as honorary president of Capability Scotland and share noble Lords’ concern about the changes to the regulatory regime. In that regard, I refer noble Lords to my observations of 13 February at cols. 737-78, which I shall not repeat. The present regulations, among other things, affect claimants who have entered into a Motability agreement and are thereafter hospitalised. The noble Baroness, Lady Thomas of Winchester, derived some comfort from the assurance that Motability will not recover those vehicles if a patient is hospitalised, but if one reads paragraph 7.10 of the Explanatory Notes, one sees that that is not what the Government have said. They say that the Motability scheme has stated that it would aim to avoid recovering vehicles from hospital in-patients affected by that change.

That is not the absolute assurance that hospital patients will not lose their vehicles. Without such an assurance, the reality is that if a person is in hospital for a particularly long period, the payments made by the department to Motability on behalf of the patients will not be made and the vehicle—the car, motorised scooter or motorised wheelchair—may well be recovered. Indeed, the Explanatory Notes recognise that if it has to be recovered, Motability will give some allowance, depending on the condition of the vehicle when it is recovered.

These are concerns, because the present system means that payments direct to Motability continue to be made after the hospitalisation of a claimant. That is recognised as an exception to the rule that social security benefits are affected after hospitalisation. In my view there is a good reason for that, because these payments are payments of a capital nature to enable people to have the necessary facilities to give them the independence that they need. They are different from revenue paid direct to the person for their maintenance.

Regulations 10 and 11 remove this exemption for no good reason. It is no answer to say that it is intended to bring Motability users into line with other recipients of DLA or PIP. As I have sought to explain, they are in a different position to the other claimants. Moreover, the consequences of this change are draconian. There is a real risk of the repossession of necessary equipment, resulting in the inability of such claimants to lead independent lives after they leave hospital until they are able to renegotiate other Motability contracts. The noble Baroness, Lady Hollis, explained the complexities of that. There will be a delay in obtaining necessary equipment, during which period these people will not be able to live the independent lives that they have enjoyed previously. Can the Minister advise the House what timescale is involved between the order and delivery of a purpose-built powered wheelchair, scooter or modified vehicle?

I also ask the Minister what is the urgency in promoting this change, particularly in view of the announcement by the DWP on 17 June, already mentioned, of a further consultation on the mobility component of PIP? Would it not make sense to have an integrated approach and to leave these changes to form part of the consultation process? Has there been any consultation with interested parties or the public at large about this significant change? If the Government are not willing to await the outcome of the consultation, can the Minister tell the House how many people will be affected by this proposed change?

The loss of a wheelchair or car may have greater implications in different parts of the country. I have been anxious to assess the whole issue of Motability payments and their geographical distribution because I suspect that the impact of the loss of a vehicle might have greater impact in rural areas than in cities where there are probably better—although not ideal—transport facilities for wheelchair users. On 4 June, I tabled four Questions for Written Answer about the Motability scheme and received a reply dated 13 June. I refer noble Lords to Hansard cols. WA 255-56. I commend the Minister and his officials for the speed of the reply but it did not answer all my questions. My Questions HL594 and HL595 sought data for three years—2010, 2011 and 2012—but the answer provided data only for the last year, preventing me from undertaking any effective analysis.

Moreover, in relation to Questions HL596 and HL597 seeking information about participants in the Motability scheme, the Minister replied:

“The Department does not hold information on the numbers of Motability customers in each local authority district or area of Great Britain”. [Official Report, 13/6/13; col. WA 256.]

That reply echoes his statement on 13 February at cols. 741-42.

I have some difficulty with these statements. As I understand the system, if a claimant elects to use the Motability scheme, payments on his or her behalf are made by the department directly to Motability. If my understanding is correct, the department must know how much it is paying to Motability and on whose behalf payments are being made. This information will identify the local authority, district or area of each claimant on whose behalf payments are made. I have written to the Minister seeking a full answer to my Questions and I look forward to receiving that in due course.

If it is truly the case that payments are made by the department to Motability without it knowing the identity of the beneficiaries, it is a matter of concern that the department cannot account for these payments. Such a failure may be of interest to the Comptroller and Auditor-General, the Public Accounts Commission and perhaps even the Treasury. Until the department provides the House with the information about such payments, I invite the Minister to amend these regulations by deleting this particular change.

[Lord Wigley]

My Lords, I am grateful for the opportunity to speak in this debate and to congratulate the noble Lord, Lord Alton, on bringing it forward. I should declare an interest as president of Mencap in Wales and a number of other disability organisations. The matter that we are discussing is of immense concern to countless thousands of disabled people who are dependent on the vehicles they get for their mobility. This is true generally; it is a particular problem in rural areas, to which I will come in a moment. Perhaps I might pick up the points as they have been made in turn.

First, on consultation, may we please have an assurance from the Minister that all relevant disability organisations will have a full opportunity not just to submit evidence but to engage in meaningful two-way discussion on this matter, and that the process will not be truncated and time-limited?

Secondly, on the more than 600,000 Motability vehicles, the Government must know how many people stand to lose their adapted vehicles, so why will they not come clean with the statistics? As the noble and learned Lord, Lord Hardie, mentioned a moment ago, they must know those statistics. I congratulate him on the Questions that he has tabled and the statistics that he has obtained, which bring this matter into sharp focus.

Thirdly, I draw the attention of this House to the disproportionate geographical impact. I obviously have concern with Wales. With 5% of the population, it has 7.4% of the total casework and 8.4% of the higher rate caseload. This is for an amalgam of historic industrial reasons, which we will not go into now. Those people stand to lose, and many are in areas with the lowest incomes per head in these islands—places such as Blaenau Gwent and Merthyr Tydfil, where I used to live, and where almost 13% of the population have a dependency on the mobility component. In my next-door area of Anglesey, which has one of the lowest GVAs per head of anywhere in the United Kingdom, at just 55% of the UK average, there is a caseload of 7.2%. That is in a rural area where they do not have alternative means of transport and taking away vehicles will deprive disabled people of the ability to get around.

The changes we are talking about will compound the disability and poverty suffered by these people. It will be made infinitely worse if they cannot have their mobility. They will be very badly impacted by these changes.

Enterprise and Regulatory Reform Bill

Lord Hardie Excerpts

Monday 22nd April 2013 Lords Chamber

[Lord Hardie]

My Lords, before addressing the main issue I should indicate that I have no objection to the amendments that the Commons introduced to reinstate the amendments that were agreed in Grand Committee, if the decision of the House is to refuse this amendment.

The main issue relates to Clause 61, which amends the existing law by removing a right of action that has existed for almost 150 years, permitting employees and their dependants to claim damages for injuries caused by an employer’s breach of statutory duties, which is designed to protect employees from serious injury or death. It is a separate common-law right of action and is distinct from the common-law action based upon negligence.

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[Viscount Younger of Leckie]

I reiterate that the balance is not right. We have been much helped by the report from my noble friend Lord Young and Professor Löfstedt, who have provided this perception and provided the evidence to allow us to act. This is the right approach for the Government to take.

[Lord Hardie]

Does the Minister accept that regulations that have the qualification of reasonable practicability afford an employer the opportunity of defending himself against a breach?

[Viscount Younger of Leckie]

The noble and learned Lord makes a fair point. Employers will continue to need to have to defend themselves. The issue depends entirely on the particular case in hand but this government action redresses a balance that is long overdue.

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[Viscount Younger of Leckie]

I believe that I covered in Committee and on Report all the aspects that I need to.

[Lord Hardie]

I am grateful to noble Lords for their contributions to this short debate. I note that the Minister and the noble Lord, Lord Faulks, accept that there are a number of regulations which have the qualification of reasonable practicability. Those regulations afford the employer the opportunity of defending his actions by saying, “I complied with these regulations so far as was reasonably practical”. If he proves that to the satisfaction of the court then he will avoid liability.

That brings me back to a point that I sought to make earlier. Why should a right of action be excluded from those regulations? If the intention of the Government is that employers should not be blamed for something that they have not done and should have an opportunity to defend themselves, then the qualified regulations do precisely that. There is no justification in law or in logic for removing the right of action in those regulations, which, as I have said, comprise the majority of the regulations.

I am grateful to the noble Viscount for researching the cases mentioned in the other place by Mr McDonald. I accept what the Minister said—that two of the cases would have succeeded at common law, contrary to what Mr McDonald said. However, according to the Official Report, there was a specific finding by the court that there was no common-law liability in the case of the roofer and slater, Mr Hill, who,

“fell from scaffolding during the course of his work and suffered very serious injuries resulting in incomplete tetraplegia. The accident occurred as he came down the scaffolding on a portable ladder that was not fixed or in any way secured; he fell to the ground, causing the injury. His injuries were so severe that damages were agreed at just under £2 million. The court held that there was no liability at common law, but there was liability under the Work at Height Regulations”.—[Official Report, Commons, 16/4/13; col. 236.]

That is a specific example of a case where common-law liability was unsuccessful but the plaintiff managed to secure damages because the employer had failed to comply with regulations designed for the safety of his employees and that failure was the cause of the accident. If Clause 61 had been in force, Mr Hill would have received no damages because he would have failed to have established his common-law claim for negligence.

The issues have been well canvassed and I feel strongly that this clause interferes with a fundamental right. No justification has been put forward for it and the Commons has not really considered the Lords’ discussions on this matter and has given no reasons for disagreeing with Amendment 38. I would welcome the opinion of the House.

Social Security (Personal Independence Payment) Regulations 2013

Lord Hardie Excerpts

Wednesday 13th February 2013 Lords Chamber

[Lord Hardie]

In rising to speak in support of the amendment moved by the noble Lord, Lord McKenzie of Luton, I have to declare an interest as honorary president of Capability Scotland. Capability Scotland is a charity which provides services, education and accommodation for people with disabilities, both mental and physical, of varying degrees of complexity and severity. It provides services at more than 25 locations in Scotland for 1,000 people who are afflicted in one way or another. It is in that capacity that I became aware of these regulations and of the concerns of people who use the services of Capability Scotland. Those concerns have already been alluded to by the noble Lords, Lord McKenzie of Luton and Lord Alton of Liverpool, the noble Baroness, Lady Grey-Thompson, and other noble Lords in eloquent speeches highlighting the difficulties surrounding these regulations. I cannot improve upon the points they made. I simply look forward to the Minister’s response to the detailed questions posed by noble Lords who were seeking the justification for the reduction of the distance from 50 metres to 20 metres.

A Question on the personal independence payment was asked in the House on 24 January. In reply to an intervention by the noble Baroness, Lady Grey-Thompson, about the 20-metre point, the Minister referred, at col. 1181 of the Official Report, to the various groups mentioned by the noble Lord, Lord McKenzie. I was surprised to see them mentioned because the implication I took from it, wrongly, was that they had suggested that the distance of 20 metres was appropriate.

The other thing I noted from the Minister’s reply was that there is no effective change in the number of people receiving higher rate mobility allowance because of this change. I challenge that statement. I am sure that the Minister did not intentionally mislead the House in making it, but I shall cite an example from Capability Scotland’s experience. A 41-year-old lady who suffers from cerebral palsy is in employment in the National Health Service and currently receives higher rate DLA at £54.05 per week. She uses that to cover the cost of her Motability vehicle, which is essential for her to get from home to work. She can walk with a frame a distance slightly in excess of 20 metres, but she cannot walk 50 metres, and that is why she gets her current benefit. If this regulation passes with the 20-metre limit, she will receive the basic mobility award, not the enhanced mobility award. The effect of that is that she will get £21 a week, losing £33.05 a week, or £132.20 a month. She will not have enough money to replace her car or to take taxis to work, and she will be unable to remain in employment. How is that compatible with the Government’s policy of encouraging people back to work and encouraging people with disabilities into work? This lady has done that, and yet because of this regulation, she will lose that independence.

I do not share the optimism of the noble Baroness, Lady Thomas of Winchester, about the flexibility of the regulations. Regulation 6 sets out the structure and one then has to look at the schedule for the assessment. When one does so, one has the various activities: “Planning and following journeys”, and then “Moving around”. There is then the detail of what is required of “Moving around”. If you:

“Can stand and then move more than 200 metres, either aided or unaided”,

you get no points. If you:

“Can stand and then move more than 50 metres but no more than 200 metres, either aided or unaided”,

you get four points, and so on. These points are maximums. It would not be possible for an assessor to give any more than the points in the table. Therefore, in the case that I have cited, the lady in question will qualify for 10 points. She needs 12, but unless she can get points from “Planning and following journeys”, she will never get 12 points. She is perfectly capable of planning and managing her journeys. I am confident that she is not the only person in this category. Lots of people will lose out because of this change. They deserve an answer to the question: why has this change been introduced? Why has it been reduced to 20 metres? Who suggested it? What is the scientific basis for it? What consultation was there? Did any disability organisation go along with 20 metres? I think not, but I look forward to the Minister’s response.

Another concern I have is that the regulations do not make provision for people who need occasional supervision to prevent them being a danger to themselves. I again cite as an example someone who gets support from the organisation of which I am proud to be honorary president. A 36 year-old man has had schizophrenia for nine years. He receives a low-rate care component of DLA because he has been assessed as requiring occasional supervision to prevent him being a danger to himself. He uses his payment of £20.55 a week for his sister-in-law’s bus fares to and from his home on a daily basis. Seven days a week, she travels by bus there and back to check on him. To give him some structure in his life, she checks that he is up in the morning, and that everything is all right. She knows instinctively if he is not well, and then alerts the mental health team. Take that allowance away, and she will not be able to visit as regularly as she does and the tell-tale signs of his increasing illness will be missed. He may then be a danger to himself and to others.

I am very concerned about these regulations. I hope that the Minister will give me some reassurance about the two matters that I have raised.

[Lord Freud]

Once again, I thank noble Lords very much for their thoughtful and moving contributions to this debate. Clearly, as PIP is being introduced as a new benefit, it is right that it is subject to a very high level of scrutiny. I shall try to address as many questions as I can. The noble Lord, Lord McKenzie, asked about case loads and the steady state, which we estimate will be around 2018. Our current estimate is that the percentage getting the top rate of both elements will rise from 16% in DLA to 23% in PIP. As I have said, the actual number goes up as well, although not by a lot, from 354,000 to 357,000. But the number of people who will get the top rate of the daily living component will go up to 674,000 compared to the 539,000 who currently receive DLA.

My noble friend Lady Thomas wanted me to clarify the meaning of “repeatedly”. Currently, it means as often as the activity being assessed is reasonably required to be completed, which makes the point that it will not be on a daily basis necessarily but will depend on the type of activity that we are talking about. The noble Baroness, Lady Grey-Thompson, referred to what might happen to the 20-metre mobility criterion in the future. Clearly, I am absolutely conscious of the strength of feeling around that criterion and I assure the House that we will keep it under very close review both within and outside the independent review process. In the mean time, we have no plans to make any further changes to this criterion.

My noble friend Lady Browning was concerned, as am I, about groups with autistic spectrum disorder. We have worked to ensure that the PIP assessment will take full and fair account of the complex needs that people with autism face. The noble Lord, Lord Touhig, was concerned about the 30-day time period. We believe that that is sufficient time for providers to conclude the process, including gathering evidence where it is needed. Clearly, this is another area that deserves close monitoring.

My noble friend Lady Thomas was interested in how the Government would monitor Atos and Capita. We have set strict recruitment and training criteria for both providers. We will approve only practitioners who reach high standards. We will have random, independently assured quality checks, which we will undertake on a regular basis. Those assessors will be well versed in our case studies and guidance as part of their training.

As regards the carers’ case load and the steady state figure, the noble Baroness, Lady Lister, was concerned that we were using an interim figure for 2015, going to the steady state in 2018. The figure is a reduction of 9,000 claims out of the total number of claims in payment to carers, which is running at around 600,000. I make that 1.5%. The noble Baroness used a rather larger percentage that I did not recognise. Her figures may be on a different basis but we can talk about that privately.

The noble Lord, Lord McKenzie, was concerned about whether there was the right number of people to conduct these assessments. To one extent, by pushing out the timetable, we have taken away some of the potential overlap with the WCA reassessment bulge, but we are not using any of the same health professionals to carry out the PIP assessments, because PIP is being delivered through sub-contractors.