Welfare Reform Bill

Baroness Morgan of Drefelin Excerpts

Wednesday 14th December 2011 Lords Chamber

Moved by

[Baroness Morgan of Drefelin]

24: Clause 19, page 9, line 16, at end insert—
“(e) the claimant is receiving specified treatment for cancer, is recovering from that treatment or is likely to receive such treatment within 6 months”

[Baroness Morgan of Drefelin]

I shall speak also to Amendment 47. First, I want to declare an interest as chief executive of Breast Cancer Campaign. I am grateful to have the opportunity to speak to these amendments that aim to ensure that cancer patients awaiting, receiving or recovering from chemotherapy or radiotherapy will automatically qualify for the employment and support allowance support group without having to undergo an assessment. I have to admit to being disappointed that we have had to come to the point where it is necessary even to lay these amendments now. This is a debate that we should have had in Committee, but we were unable to do so because at the time the outcome of the Harrington review and the Government’s response to it were not known. That is why we are having what is probably a Committee stage debate now—although obviously within the correct procedure for Report.

While I am sure the Minister will be able to highlight technical flaws in the wording of the amendments, I hope that the discussion today on these amendments will focus on the intention behind them, which I believe is clear. I am sure that if there are technical flaws that need to be addressed, they can be looked at for Third Reading.

Over several months, we have heard a number of seemingly very reassuring statements from the Government in relation to employment and support allowance and supporting people with cancer. I note, for example, the response by Chris Grayling MP, the Minister for Employment, on 18 October to a Written Question, in which he said:

“Ministers have had a number of discussions with Macmillan Cancer Support since the spending review announcement, as we are determined that the benefits system should support people who are diagnosed with cancer in the most sensitive, fair and appropriate way. The Department has no interest in making it harder for those who cannot work to claim benefits and is committed to an ongoing process of review and improvement”.—[Official Report, Commons, 18/10/11; col. 930W.]

That was a very reassuring statement.

Unfortunately, the recent publication of the Harrington review and the Government’s response to it resulted in anxiety across the cancer community. I have listened to the views expressed by organisations such as Macmillan Cancer Support and others and am sorry to say that I am not reassured by the news that the Government are considering withdrawing automatic qualification for the support group of ESA to those on non-oral chemotherapy—commonly referred to as IV chemotherapy—instead of extending the exemption to cancer patients receiving oral chemotherapy. In effect, that is going in exactly the opposite direction of that pointed to by the Minister for Employment.

We know that Macmillan Cancer Support undertook an expert consultation on this matter for the Harrington review. It did an enormous amount of work and I pay tribute to it for it. There is no doubt that the recommendations produced by it through consultation with an expert group of clinicians have not been adopted. Macmillan has been very clear on this point. I have had a look at the government response and it seems that Macmillan is making a fair point.

The Minister will no doubt suggest, as he has done previously, that the Government’s response is not contrary to Macmillan’s conclusions. However, it is my understanding that while the clinicians consulted provided the charity with a range of views—Macmillan has been totally transparent about all the views that it has received—a clear consensus was reached by experts that certain groups of cancer patients undergoing treatment should qualify for the support group automatically. As was stated by the charity, this is because those patients are more likely than not to be debilitated by their treatment and should not be made to go through an assessment while undergoing this debilitating treatment.

While I am not suggesting that it was the intention of the Minister and his colleagues to add to the struggles and difficulties that cancer patients experience, I fear that what is currently being proposed would do just that. In the Sunday Times this week, the journalist Jenni Russell shared her experiences of chemotherapy very movingly and said:

“I read these proposals with incredulity. I have been seriously ill at times in my life … but I have never felt as appalling as I did on chemo … I had assumed I would overcome it with a bit of willpower. Instead I had vomiting, nausea, headaches, muscle weakness and an inability to tolerate bright lights. For the first four days in every fortnight’s treatment, I couldn’t eat, speak, read, listen to the radio or get out of bed. My white blood cell count sank so low that I needed injections to boost my bone marrow production. For the next six days I was too weak to want to walk upstairs. There was no fight left in my body; every cell was being affected and it seemed every cell was losing the will to live. Then for three days I would feel almost normal until the cycle began again”.

Jenni Russell then provided her view on how cancer patients might interpret what was being proposed by the Government in this Welfare Reform Bill. She said:

“What people in treatment are hearing is that they will be assumed to be guilty of skiving unless they can prove otherwise. Nothing could be more demoralising to the individuals who are already having to cope with being cut open, poisoned or burnt in the hope of saving their lives”.

These are very hard-hitting comments in the Sunday Times and very difficult to read. While there are hundreds of thousands of other people who do not have the opportunity to share their experiences in the House today, I feel sure that the views expressed by Jenni would be endorsed by many cancer patients around the country.

I noted the Minister’s comments on Monday—I was disappointed that I was not here for the Question—that part of the rationale for not allowing automatic qualification for benefit is that it is important for many cancer patients to stay in work. I do not disagree with that at all. However, it seems far fetched to suggest that qualifying for the support component would stop cancer patients who wish to continue working for as long as they can from doing so. I do not understand how that holds up.

The Minister may also argue that the automatic support group status encourages the wrong kind of behaviour in cancer patients. The Minister shakes his head; I am sure he will put me right in a moment in his very clear way. I would welcome hearing from him whether he really believes that cancer patients would decide to leave work just because they are automatically eligible for this benefit. What picture does that paint of the motivations behind cancer patients’ behaviour? It is my understanding that automatic entitlement to ESA support group status would not prevent patients who wish to remain in work for as long as they are able from continuing to do so. If the Minister has any evidence that the existing exemption for cancer patients on IV chemotherapy, for example, has been or is being abused by cancer patients who are clearly capable of working, it would be very useful to hear about it. The House would welcome that.

Nor will becoming eligible for the support component of the ESA while receiving chemotherapy lead to people spending a lifetime on benefits. I know the Government are very concerned about ensuring that we do not leave people to languish on benefits for a lifetime. I totally support that. We know that work is good for people. Even if that is what people wanted—which they do not—they are reassessed for eligibility for benefit after their treatment. This would mean that when they are no longer in need of the support on offer from the support group, it would be withdrawn. There were many personal examples given in Committee. When I was talking about PIP, I used the example of my niece who was in the process of being treated for Hodgkin’s lymphoma. She is in hospital having her second transplant at the moment. Throughout her 18 months of treatment she has been reassessed three times for ESA to check whether or not she should still be receiving it in the support group. So there is no danger of her going on indefinitely in the support group.

The amendments will ensure that the added burdens associated with seeking financial support during the most difficult of times are minimised as much as possible. This would help to remove the anxiety experienced when people have to wait for the results of a decision-maker. With 40 per cent of appeals currently successful, we should not forget that these decision-makers are clearly frequently making the wrong decisions. It is feasible that, without the guarantee of receiving the support component of the benefit, cancer patients who are in the middle of treatment could be forced to attend back-to-work interviews or even be found fit for work.

I remain hopeful that the Minister will respond to the growing concern on this issue, which has been even more apparent over the past week. I hope he will be able to say that all patients receiving, due to receive or recovering from chemotherapy will automatically qualify for the support element of ESA. It would also be useful if the Minister could explain at this stage what further documentation and processes cancer patients receiving IV chemotherapy will have to provide and undergo in future as this would be extremely helpful in informing the debate at this point.

I hope very much that the Minister can give me reassurances that it will not become more difficult for those who are currently automatically put into the support group because of their cancer treatment to claim ESA. I hope very much that the Minister will be able to give undertakings about the consultation process, which I believe is due to be taken forward just before Christmas—Christmas holiday time—and that the consultation period will seek the views of many on a range of options. It looks a little like the Harrington review has asked Macmillan to do some work for it, does not like what has come back, and is going to ask some different people to see whether it can find some more opinions that it does like. I am sure—absolutely sure—that this is not what the Minister is proposing at all.

I hope that if there is to be a consultation over Christmas it will be done in a fair, open, transparent and timely way that looks at more than just one option and talks to patients, charities and a range of experts too. I beg to move.

[Baroness Hayter of Kentish Town]

My Lords, like the noble Baroness, Lady Morgan, I think the fact that this amendment is necessary comes as a surprise. When we started discussions of the Bill, it seemed that the issue of whether recipients of debilitating cancer treatment in the form of oral chemotherapy should be automatically exempted from requirements to look for work was being dealt with in a sensible manner by discussions between the cancer charities, cancer specialists and the Government. It is extremely disappointing to find that these discussions appear to have broken down. Disappointing for us, but extremely worrying for the many cancer patients anxious about what support they will be able to claim and how they will qualify for it when their main focus is living through and coping with some pretty debilitating—as we have heard—albeit wonderful, lifesaving treatments. The Government’s response to the second Harrington review states that its new proposals to ask everyone experiencing cancer treatment to go through the work capability assessment process,

“would increase the number of individuals being treated for cancer going into the Support Group”.

It also states that:

“They would also reduce the number of face-to-face assessments for people being treated for cancer as most assessments could be done on a paper basis, based on evidence presented by a GP or treating healthcare professional”.

While we welcome the acceptance of medical evidence, this proposal still puts cancer patients undergoing treatment through the uncertainty and stress of not knowing whether they will qualify for essential financial support or whether they will be expected to prepare for work while undergoing their treatment. With the proposals to time limit employment and support allowance for those in the work-related activity group, these assessments take on an added importance, since for many people they will determine when the clock starts ticking to the point when they will lose this contributory support altogether.

We do not think that anybody should be written off because they have cancer. We certainly do not think that no one with cancer will ever be able to work again. A brief glance behind me in your Lordships’ House is great testimony. This is not, however, what automatic entry into the support group means. We know that those in the support group can volunteer for access to the work programme and the support there to help them get back into employment. We imagine that the vast majority of those who have overcome their cancer will want to do just that. But for the Government to suggest that those receiving chemotherapy need to be tested to see whether they are really ill enough to avoid a conditionality regime, which we will remind the House was intended to put pressure on people to return to work, suggests that the Government somehow view all cancer patients as potentially taking advantage of the state. We are sure that that is not the Minister’s view and therefore hope that he will be able to accept the amendment.

[Lord Freud]

My Lords, this is obviously a very sensitive issue, and I want to start by saying that we are determined that the benefit system should support in a sensitive, fair and appropriate way people who are diagnosed with cancer and coping with it. I shall try to go through the argumentation here in as simple a way as I can.

First, we know that cancer and cancer treatment affects individuals very differently. That was one thing that the Macmillan evidence demonstrated. It shows that some people can continue working straight through their treatment, are capable of doing so and want to do so. On that evidence, we believe that automatically putting everyone undergoing certain cancer treatments into the support group is not the right way forward. Clearly, there is the example that the noble Baroness raised, the one in the Sunday Times, of Jenni Murray, who had a bad reaction, and one can only sympathise with that. Everyone in this Chamber will have friends or relatives who have gone through this experience and had a bad reaction. It is always painful. We are all thinking exactly the same thing; we are all thinking of someone we know who has gone through hell on this process. But when you talk to the experts, you get examples of someone—let us take a man—who has had testicular cancer and has recovered well from curative surgery and is now being treated with radiotherapy without any significant side effects. On this ruling, he would be automatically placed in the support group. That is a kind of counter-example, which half of us should be so lucky to have.

[Baroness Morgan of Drefelin]

When we look at the Macmillan recommendations, we can see that they take into account that people respond in a range of ways. In the recommendations that the charity made to the Harrington review, they came up with a lot of detail, and I could read it all out. No—I will not read it all out, but I could.

The point that I want to make is that a consensus process was gone through at the request of a government review. We could all pick out little bits of that wide range of opinion that we do not want to promote, but that was not what the charity did. It published it all, which now allows the Government to pick bits out that suit the argument. But the overall conclusion by the experts and the consensus statement was that, for the majority of cancer patients going through specific cancer treatments—and it is not all chemotherapy; we are not talking about long-term oral chemotherapy here—it is more likely than not that they would experience debilitating effects.

[Lord Freud]

Let me go through the argument and I will pause just before I sit down to let the noble Baroness come back on the process. We asked Professor Harrington and Macmillan to review the current descriptors to provide evidence as to whether they could be improved, and we are committed to acting on the evidence that they put forward. The evidence provided by Macmillan showed clearly that there is no longer a basis for differentiating between certain types of cancer treatment in the way that current regulations do. The evidence showed that all types of chemotherapy, including oral chemotherapy and certain radiotherapy, can be debilitating but it also showed that there can be considerable individual variation in the impact of the treatment on each person, and that work can be very important for some individuals with cancer.

I think that there were 16 medical professionals—the oncologists—who were consulted in depth in this evidence. I shall quote just one as an example, who said,

“I am somewhat against the concept of including all chemotherapy”,

in the support group,

“as it will clearly be inappropriate for some patients, risks stigmatising these patients in the workplace and may delay useful reintroduction to the workplace”.

A number of the experts consulted by Macmillan, and indeed Macmillan itself, volunteered evidence of the importance of work to an individual’s rehabilitation and emotional well-being. Indeed, in a recent publication, Macmillan said:

“Many people who are working when they are diagnosed with cancer would prefer to remain in work, or return to their job, during or after treatment”.

From this evidence, it is clear that while many people will not be able to work, some can and do. For them, it is an important part of coping with their diagnosis and treatment.

We want the work capability assessment to effectively reflect this new evidence based on what Macmillan, supported by Professor Harrington, has found. How it would work is that each individual would be assessed on a paper basis. The evidence required might be a note from the claimant’s GP or consultant, and where a claimant is unable to provide information an Atos healthcare professional will contact their GP or consultant to gather the information and ensure that they are not unnecessarily sent on a face-to-face assessment.

We have had a request to look at this evidence more widely, so we are in the process of asking Macmillan whether we can make this document more widely available. At the moment, Macmillan is seeking permission to do that. I hope that that actual evidence becomes more widely available for consideration. We believe that our proposals meet the spirit and intent of Macmillan’s assessment. If that were to be the case and we were to go ahead with those proposals—if your Lordships will bear with me, I will describe the process before we were to go ahead—there would be an increase in the number of people in the support group. About 10 per cent would move from the WRAG group to the support group, while there would be a reduction in the number of face-to-face assessments that individuals suffering from cancer would undergo.

Let me provide another example of how this will better support people by citing a woman who is being treated via oral chemotherapy and who is profoundly fatigued due to the treatment. Her GP confirms her diagnosis and symptoms. Currently, she may be invited for a face-to-face assessment; under the new proposals, she could be placed in the support group on a paper basis.

We are disappointed that Macmillan seems to be unable to support these proposals, which we have based on the evidence that it spent so much energy in collecting, and because we had hoped to introduce the proposals in April 2012. However, since we do not seem to have Macmillan’s support at this particular moment, we will now seek a wider range of views through an informal consultation. As part of this we will seek the views of individuals affected by cancer, their families and carers, healthcare practitioners and cancer specialists, as well as representative groups and other lobby groups. We want to ensure that the benefits system treats individuals with cancer in the most sensitive way.

I recognise the points raised today. We want to get the balance right, which is why, as a result of the evidence presented by Macmillan, we will launch the consultation on these proposals this Friday. It will be informal; it will last 12 weeks, ending on 9 March, and it will follow the advice in the government Code of Practice on Consultation. We will be looking, as I said, for a wide range of evidence, and will consider all the issues, including automatic entitlement, as well as looking at previous experience of cancer assessment in the benefit system.

I hope that that will reassure noble Lords that there will be a proper process which will aim to come out with an answer which gets the general support of this particular community, and I hope that many of them would be a temporary part of that community. The noble Baroness is getting to her feet; I will hover.

--- Later in debate ---

[Baroness Morgan of Drefelin]

I think that the Companion says that the Minister is able to respond on Report, so it is very nice of him to hover, but he can have a rest.

Obviously the automatic entitlement is set out in regulations; I think the powers are in the 2007 Act. It would be really helpful to understand what this paper basis will look like. Will it be possible for us to see what those regulations might look like? I cannot remember whether they are affirmative or not. I guess they probably are, but if they are not, then maybe they should be.

[Lord Freud]

Rather than go into detail now I would like to wait for the proper consultation. The document is coming out in two days; it will lay out the issues, the proposals and the background, and there will be a full opportunity for us to gather all those views and pull them together. With that reassurance that there is a real process going on to get agreement and to take everyone’s views, I hope that the noble Baroness feels that she can withdraw her amendment.

[Baroness Morgan of Drefelin]

My Lords, it is very late and I have only a couple of thousand words to get through. More seriously, the Minister has given me quite a lot to think about. Obviously, as this is only the first time that we have had a proper discussion about this, I will have to look at Hansard very carefully, and think about whether I need to come back to it. However, I appreciate the time that the House has given to this issue at this late hour, and I beg leave to withdraw the amendment.

Amendment 24 withdrawn.