Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-Related Activity) (Amendment) Regulations 2011

Baroness Browning Excerpts

Wednesday 16th March 2011 Lords Chamber

[Baroness Browning]

My Lords, I begin by declaring an interest as the named carer of an adult in receipt of severe disablement allowance. I also associate myself with the words of my noble friend Lord Kirkwood of Kirkhope. I concur both with his concerns and with his support for the need to enable as many people with a disability as possible who have not worked or have not worked for a long time to be assisted into appropriate work through an appropriate process that takes account not just of what they cannot do but of what they can do.

Among the many disability charities which consider this statutory instrument to be premature due to the as yet incomplete recommendations of the Harrington report is, as the noble Lord, Lord McKenzie of Luton, has mentioned, the National Autistic Society, of which I am a vice-president. I would like to focus on the concerns for people on the autistic spectrum. In order to qualify for the ESA in a work-related activity group, people have to be assessed to have gained more than 15 points. The way in which it is currently proposed to change the descriptors, as we have already heard, has a detrimental impact on people on the autistic spectrum. I remind the Minister that it was only last Thursday at Oral Questions that I asked him to confirm that the Government accept that autism is a communication disorder.

The descriptors take no account of communication difficulties, verbal or non-verbal, due to mental impairment. This is a major omission. Communication and comprehension are essential in the workplace, and it is a critical area of impairment for people with autism. Making oneself understood is covered only by a physical descriptor, descriptor 6. Unless guidance clearly states that this covers people who find it difficult to communicate due to a non-physical disability such as autism or a learning disability, these needs will not be recognised in the assessment. Noble Lords will understand my concern that already I am looking at areas where autistic people should be given a point on that descriptor scale, but getting them to reach the 15 points, if appropriate, is already excluding those areas where they will be in some considerable difficulty. Understanding and comprehension impairments are covered only due to a sensory impairment under descriptor 7, where the emphasis is on aids used by those with hearing or visual impairment.

The wording of the descriptor itself is vague; it is based on an ability to complete “two sequential personal actions” in the context of planning, organisation, and problem-solving. People on the autistic spectrum—even those with honours degrees and high IQs—always struggle with planning, organisation and problem-solving. It is too broad to be meaningful and leaves too much scope for interpretation to accompanying guidance. For people with autism, this may vary from turning on the tap and wetting their hands within the process of washing their hands, or getting ready for work and then making their own way to the workplace. For many, doing that unassisted will be a major challenge.

The National Autistic Society is also very concerned about changes to descriptor 17. It has been simplified to make the wording clearer, but it has become overly simplistic. Someone who frequently has uncontrollable episodes of aggressive or disinhibited behaviour, particularly when under pressure or in an environment with which they are really not familiar—that sort of behaviour would be unreasonable in any workplace due to cognitive impairment or mental disorder—cannot realistically be assessed as not having limited capability for work. As the proposals stand, we do not believe that employers would accept as employees people who the descriptors would deem as capable for work, but showed those sorts of behavioural problems in the workplace.

People with autism may exhibit behaviour which does not meet the minimum criteria set out in this new descriptor 17, but which would cause disruption in the workplace. For example, people will flap, hum or spin. I know of one person who, in a stressful situation in the workplace, would make cat noises as a sort of comforter in order to exclude the distress going around him. There is a limit to how long those working with people like that will put up with somebody making cat noises on a continuous basis in a busy office. These are all regarded as individual or rather quirky, but they are very real parts of their disability.

I say to my noble friend that there is genuine concern about the speed with which these changes are being brought in, ahead of what Professor Harrington is saying.

I mentioned that I am the named carer for a person on severe disablement allowance. This allowance, which comes within this legislation, is a very old disability benefit; it was something often given to young adults and adolescents who, having come out of full-time education, were at that time assessed and deemed not able to apply for paid employment. I would not even want to exclude them from the new opportunities for employment as disabled people, but—and I particularly refer to learning disability, mental health and autism—many of them are now getting on a bit because they were awarded this some years ago. Some of them will be in their 30s and 40s or even older and for many of them, getting the support they have been given to date to enable them to live as independently as possible or to be as socially integrated as possible has not been an easy journey. It has been a long journey and there has been a lot of input to get these people where they are today. But their situation is always going to be fragile, and there is nothing that I can see in the way these assessments are made to take account of what is at the moment a sustainable situation, as far as independent living is concerned. We must not put too many demands on them, however, and ensure that the process associated with it does not give them some form of detriment as a result. As my noble friend Lord Kirkwood mentioned, they might lose money, which is a very important part of their life and allows them to be able to plan and be secure with their finances.

There is another form of detriment. People may find that their self-confidence is shattered after it has taken years to build up; they may find that they can no longer cope with independent living of one sort of another as a result of being put through a process which undermines that stability. You cannot put a price on that detriment. I say cautiously to my noble friend who I know is sympathetic to these issues, please do not let this Government cause detriment to those vulnerable people.

[Baroness Hollins]

My Lords, I am very pleased to follow the noble Baroness, Lady Browning. I, too, will begin by declaring a personal interest. My 38 year-old son, who has a learning disability, was well described by the noble Baroness towards the end of her speech. He is always being assessed for what he cannot do and not for what he can do, which is incredibly demoralising for him. We his family spend our time trying to help him succeed and he would really like a job.

Some years ago, when I was consulted as president of the Royal College of Psychiatrists on the development of a work capability test, I suggested that the focus should be on capability, not lack of capability, from the point of view of the person being assessed. Although this is called a work capability assessment, it is an assessment of incapability.

I understand that, as my son is in receipt of severe disablement allowance, he may be required to undergo a work capability assessment. I tried out the online work capability self-assessment to see how he would fare. I will not go into the details but, of the three possible outcomes that we have heard about, he fell into the third category and would not be required, according to my assessment, to undertake any work-related activity. Perhaps that is a relief to me, in that his finances might not change, but I am sure that it would be a huge disappointment to him if that was the case.

So far that might be fine, except that the assessor may come to a different decision, in part perhaps because of my son’s lack of insight or understanding of his difficulties. He might then have to undergo an appeal and not everyone has the stomach for, or the capability for, an appeal. My reaction to trying out the test was that there is some sensitivity in the mental, intellectual and cognitive descriptors but probably insufficient sensitivity in the questions which relate to the type of complex difficulties that my son faces in his wish to be part of the workforce. They are difficulties which would require focused and sustained support to enable him to obtain work-related activity. The last thing that I or any parent in my position wants is for my son to fail yet another assessment, especially one which emphasises what he cannot do.

Another concern is that, if the assessment finds that he is capable, he is then given insufficient support, which would do terrible things to his self-worth and self-esteem. I question whether this assessment has been adequately road-tested and would want to avoid even one disabled person and his or her family having to face unnecessary appeals or loss of income through being unwilling to face yet another appeal. Even participating in the process of this assessment could be detrimental to the person’s mental heath.

My noble friend Lord Rix shares my concerns and has asked me to express his support to the noble Lord, Lord Kirkwood, today and to give his apologies as he is unable to contribute to this debate owing to family illness. He believes that many people with a learning disability will be denied vital support to help get them into work if they are not found eligible for employment and support allowance. That mirrors my concern. My noble friend believes that the crude indicators used in the regulations must be changed to more accurately reflect an individual’s capabilities.

For example, my noble friend is deeply concerned about the merging of the three descriptors—“memory and concentration”, “execution of tasks” and “initiating and sustaining personal action”—into one. They have been replaced with just one descriptor, “Initiating and completing personal action”. According to the regulations, this,

“means planning, organisation, problem solving, prioritising or switching tasks”.

The removal of the descriptor titled “execution of tasks” means that the time taken to complete a task will not be included as part of the assessment. This is particularly relevant to people with a learning disability and is likely to be a significant barrier to employment.

The current system already fails to meet the needs of people with a learning disability. My noble friend Lord Rix suggests that these regulations do not effectively assess limited capability for work, which means that the additional barriers and support needs of people with a learning disability are not being fully recognised in the assessment.

With less than 7 per cent of people with a learning disability who are known to social services being in any form of paid employment, the barriers to finding a job, combined with deep-rooted prejudice and discrimination, are already significant. Is it too much to ask that a coalition Government who claim to put fairness at the heart of their decisions should seek to tackle some of these barriers instead of perhaps making them even more difficult to overcome? For this reason alone, I and my noble friend Lord Rix, call for these regulations to be annulled.