Public Bodies (Abolition of the Disability Living Allowance Advisory Board) Order 2013

Lord McKenzie of Luton Excerpts

Tuesday 29th January 2013 Grand Committee

[Baroness Stowell of Beeston]

My Lords, this order was laid before Parliament on 15 October last year under the powers of the Public Bodies Act 2011. It provides for the abolition of the Disability Living Allowance Advisory Board.

The board provides independent advice to the Secretary of State on matters relating to disability living allowance and attendance allowance. It cannot provide advice unless specifically asked to do so and cannot be asked to provide advice on issues other than those relating to DLA or AA. It is not a representative body for disabled people and plays no role in the decision-making process for benefits.

The Disability Living Allowance Advisory Board Regulations 1991 specified that the board’s function was,

“to give advice to the Secretary of State on such matters as he may refer to them for consideration”.

The Secretary of State usually commissioned work on medical matters relating to specific conditions or illnesses. For example, the board undertook a study of cases where the highest rates of benefit had been awarded under special provisions for people who were terminally ill and not expected to live beyond six months, yet a number of such awards had been in payment for more than seven years. The board was supportive of the fact that special rules exist and should continue to exist but nevertheless it recommended that such cases should be reviewed after three years.

Clearly, the board provided some excellent advice in its time. However, the defined scope and membership of the board means that there is a limit to the type of advice it can provide. In fact, the last time the board was commissioned to do any work was in 2008, two years before the end of the previous Government. Since coming into government, we have found that using time-limited, tailored advisory groups and targeted professional advice—as we did with the Harrington reviews of the work capability assessment—is better than the prescriptive approach of a standing board.

We have used this more dynamic approach in relation to the design and development of the personal independence payment, involving experts and consulting disabled people and their organisations. The Secondary Legislation Scrutiny Committee commended the department for its extensive consultation on PIP, including our work with voluntary organisations that represent the interests of disabled people. I will return to this in a moment.

In its 15th Report of Session 2012-13, the Secondary Legislation Scrutiny Committee made a number of points that need to be answered in this debate, particularly on the tests laid down in the Public Bodies Act. I will address the points in turn. The report is clear that it expects me to use this forum to answer some of the points. I hope that noble Lords will forgive me if it takes me a little while to go through them systematically.

I will start with our decision not to consult on the proposal to close the board. The Secondary Legislation Scrutiny Committee accepted the department’s explanation of why there was no legal obligation for us to consult but it did not consider this to be in keeping with the spirit of the consultation requirements. I should restate that the board was not outward facing and did not have free rein to examine the policy, operation or administration of DLA, being able to respond only to concerns expressed by the Secretary of State. In our view, to offer a consultation to groups with no ability to influence the work of the board would not be in the spirit of meaningful consultation.

Moreover, disability organisations have shown little interest in the board over the years. Back in 2007 when it was reviewed as part of the normal process of reviewing non-departmental public bodies, more than 100 organisations of and for disabled people were contacted, but only 11 responded. Out of those, three reported that they could not spare the time to comment and the remainder had little to say about the functions of the board.

During the design of the personal independence payment, which as noble Lords know will replace disability living allowance, we undertook three consultation exercises. I acknowledge absolutely that no specific questions were asked about the board during those consultations, but the respondents had the opportunity to raise anything they wanted to about the reform of DLA. We received more than 5,500 responses, and again not one of them mentioned the board. We also discussed the board in both Houses during the passage of the Public Bodies Act, and the department has not received any correspondence or parliamentary Questions on the subject. There have been several meetings between disability organisations and Ministers and officials, and again the future of the board has never been an issue.

Perhaps I may turn to the issue of efficiency and effectiveness, which is another one of the tests under the Public Bodies Act. The department has an existing medical policy team covering a wide range of policy areas who can provide medical opinion or who can commission work by others, if needed. This is a more flexible resource than that provided by a standing board. The team also produces guidance for operational staff, advice on operational issues and audits the quality of outsourced medical advice. It is our view that short-life working groups can be set up quickly when work is needed, which is more efficient and effective than retaining a standing collection of eminent people whose expertise is not necessarily being put to good use consistently. For instance, during the development of PIP, we set up a group to help develop the assessment criteria. The group encompassed a wide range of expertise across health, social care and disability, including from occupational therapy, social work and a representative from Disability Rights UK. Very importantly, we also sought the views of user-led organisations and disabled people themselves through our implementation stakeholder forum. This group involves more than 60 user-led, grass-roots and national organisations working with us to get the design and delivery arrangements right.

Legislatively maintaining the status quo for the board places a burden on the department because the regulations require that the membership contains specifically qualified personnel. Therefore, if a member leaves the board either by choice or because their tenure has ended, the department is required to recruit even though there may be no actual work to do. The recruitment process is expensive, resource intensive and, in my view, verges on being disrespectful to those people who apply for the post. We consider that using time-limited groups is more effective than maintaining a standing body. We continue to use the expertise of other disability groups, and our recently launched Disability Action Alliance has convened a wide range of disabled people and their organisations who will work alongside the department to deliver results in a less prescriptive manner.

I shall move on now to the test of economy. As the Secondary Legislation Scrutiny Committee acknowledges, it is cheaper to run one NDPB rather than two, while Equality 2025 is a body representing disabled people that helps the Government to understand their needs and wishes. It has been in existence since 2006 and there have been no additional costs to that body since the DLA board has not been used. In addition, I can assure noble Lords that the medical policy team has absorbed some of the work previously undertaken by the board at no extra cost. Commissioning independent advice on an ad hoc basis is more economical than commissioning it from board members because they were paid fees for attending meetings and for contributing to reports, whereas the individuals and organisations who advised the department on the development of the PIP assessment did not receive a fee.

The Department of Work and Pensions considers that the use of time-limited groups will increase accountability. The scrutiny committee is of the opinion that accountability remains the same, as the Minister will commission time-limited groups, much in the same way as the board could meet only at the Minister’s direct request; it disagrees with our view that accountability will be enhanced. However, the board’s composition was laid down in statute. It is required to have members with professional knowledge or experience of physiotherapy, occupational therapy, social work, nursing people with disabilities and medical practice, as well as six or more members who are themselves disabled and at least one carer. Now we can target individuals with the specialist knowledge that we require. For instance, if the department wants up-to-date information on people with mental health conditions, it can specifically target mental health professionals who may be better placed to provide that advice.

In addition, the board could report only to Ministers and only at their request. Time-limited groups have the flexibility to engage with and report to a range of parties. For example, in his independent reviews of the work capability assessment, Professor Harrington took evidence from hundreds of organisations and individuals and ultimately presented his report to Parliament.

On safeguards, I do not consider that the abolition of the board will remove any necessary protection or prevent any person continuing to exercise any right of freedom. I say that because, as I have already mentioned, there is a range of ways in which Ministers receive and seek advice, and consult. There have been scores of stakeholders meetings with Ministers and officials. These will clearly continue.

This is a good and sensible reform, formally closing a body which, although of considerable help to the department in its time, has not been asked to give any advice since 2008. Before I close, I pay tribute and offer sincere thanks on behalf of all current Ministers at DWP to the current chair, Anne Speight, her predecessors and all members who have served on the DLA board over the years.

I hope that I have been able to give the Committee the information necessary to demonstrate that, in abolishing the DLA advisory board, we are in no way diminishing the way in which we will consult properly with experts and ensure that all ranges of advice are taken properly into account. I beg to move.

[Lord McKenzie of Luton]

My Lords, I thank the noble Baroness for her introduction to this order which, as has been described, abolishes the DLA advisory board. I join the noble Baroness in paying tribute to those who have served on the board over the years and all the work that they have done. We acknowledge the extensive consultation that has taken place on the creation of PIP. The extent to which it was always spot on is something we will have the chance to discuss when we discuss the regulations quite shortly. However, we acknowledge that that has been an extensive process.

We have of course debated the proposition of the board being abolished when we considered it during the passage of the Public Bodies Act. Since then, we have had time to reflect on those discussions and the Minister will be aware of the debate at the other end, particularly the strong points made by my right honourable friend Anne McGuire, former Minister for the disabled.

Paragraph 4.6 of the Explanatory Memorandum makes it clear that the board satisfied the three tests of performing a technical function whose activities require political impartiality and needing to act independently to establish facts. Can the Minister say a little more about the assessment that was undertaken to make the judgment that the DWP is better suited to the in-house team of medical advisers? Can we have an update on the size of that in-house team and the range of skills which it encompasses? Paragraph 7.2 of the Explanatory Note refers to “a larger resource”, but how does the range of skills match that which is available to the board? The Minister ranged over the skills that the board has. Paragraph 4.4, on the constitution of the board, sets out the range of skills which the board should have. It should include people from the fields of,

“physiotherapy, occupational therapy, social work, nursing disabled persons, medical practice, and at least one member with experience of caring for a disabled person”.