My Lords, I think we all recognise that taking regulations of this nature in the course of a debate on eight sets of regulations is perhaps not the best way to do business. Given the speeches that we have already heard, especially about the effect on mobility and the allowances that people with disabilities cling to in order to ensure their freedom of movement, these regulations are so crucial that I am surprised that they have not been uncoupled from the others so that we could consider not just the regulations as they stand but the amendment that the Minister referred to earlier, which he intends to lay in due course anyway. It might have been better if they had been uncoupled from the other regulations before us today so that we could have had a separate debate on that question.
All of us will have been moved by my noble friend Lady Grey-Thompson’s powerful speech. Having had the chance to speak to her briefly yesterday, and to my noble friend Lady Campbell of Surbiton, none of us should underestimate the strength of feeling. My noble friend’s remarks about contemplating tabling a fatal amendment to the regulations underlines that, despite the changes that have been made, welcome though they are—as the noble Baroness, Lady Thomas of Winchester, said, the Minister has listened and made some changes—there are deep concerns in many organisations throughout the country. Some of those concerns have been mentioned already, but I shall refer to others.
During a debate on 17 January initiated by the noble Baroness, Lady Hollis of Heigham, I signalled my concern about the impact that the changes to the personal independence payment would have on the mobility of sick and disabled people. During that debate, and again on 24 January when I asked an Oral Question, I drew attention to those two things. The first was the omission of the words,
“reliably, safely, repeatedly and in a timely manner”,
from the text of the regulations setting out the qualifying criteria for the payment and the impact of altering the criteria for the enhanced mobility rate from 50 metres to 20 metres.
During the debate on 17 January, I asked the Minister to,
“confirm the Government's own prediction, made earlier this month, that 27% fewer working-age people will be eligible for the Motability scheme once PIP is fully rolled out? Disability organisations say that the new proposal means that 42% fewer disabled people of working age will be eligible—an average of 200 people in every constituency”,—[Official Report, 17/1/13; col. 817.]
a figure my noble friend referred to a moment ago. I received no answer in the Minister’s reply that day.
When I returned to the question on 24 January, I pressed him once more and asked whether he accepted that,
“with one-third of disabled people living in poverty and an estimated 42% fewer being eligible for mobility support-many fearing that they will become prisoners in their own homes-his admission that under the new regime some disabled people will have their specially adapted vehicles taken away from them or offered to them to buy has caused widespread disbelief and considerable distress?”.—[Official Report, 24/1/13; col. 1180.]
Let us be clear: some existing claimants will face losing as much as £150 a month if they fail to meet the newly tightened criteria. That amounts to an annual loss of £1,800. As the Disability Benefits Consortium, representing over 50 disability rights groups, says, that loss will have calamitous effects, as Motability vehicles, which include adapted cars, powered wheelchairs and scooters, are withdrawn. In its words, Motability vehicles are,
“their means of independence and participation, the lifeline that enables them to get to work, to GP appointments, to the shops, to take their kids to school”.
During the briefing session which the Minister kindly arranged two weeks ago, I returned to the same line of questioning, simply trying to obtain from the Government their estimate of how many people will be affected by the regulations that we are being asked to approve today. Not to know the figures but simply to have guesstimates thrown around like confetti is not a sensible way to proceed when the House is being asked to agree something as important as the regulations.
In a Written Question on 4 February, I asked,
“how many people they estimate will be affected by changes to mobility support for people with disabilities; and how many vehicles are likely to be repatriated or offered for sale”.
The Minister’s reply was, to put it charitably, opaque. He said:
“We are continuing to work closely with Motability to understand what impact personal independence payment might have on its customer numbers and to ensure the smooth introduction of PIP as it relates to users of the Motability scheme”.—[Official Report, 4/2/13; col. WA26.]
That is information that Parliament needs to have before we can in all conscience approve the regulations. The Minister needs to tell us how many vehicles will then be sequestrated or repatriated. What are the best guesstimates that have been made by his officials? He must have had discussions with Motability. What figures has it given him? How many will be offered for sale to their users and at what average price? What assessment has been made of the ability of the current users of those vehicles to find the funds to buy them and then to fully maintain?
Like the noble Lord, Lord McKenzie, and others, I would also like the Minister to say something about companies that have been given responsibility for implementing PIP. Perhaps he can confirm that Atos Healthcare, also mentioned by the noble Lord, Lord Touhig, has been given responsibility for two of the three contracts for PIP. Only last week the Public Accounts Committee reported on the work capability assessment. The committee is damning of the whole process, and particularly stresses that ultimately the Department for Work and Pensions is responsible. One of its main findings was that:
“The Department lacks sufficient rigour in managing the contract with Atos Healthcare. It has adopted a light-touch approach to managing this contract and placed too much reliance upon information provided by the contractor. The Department seems reluctant to challenge Atos Healthcare. It has failed to withhold payment for poor performance and rarely checked that it is being correctly charged for work”.
If after three years of trying with the work capability assessment it has been unable to get that right, goodness knows how much further misery and cost will be incurred with PIP.
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The report also says:
“The Department cannot explain how the contractor's profits reflect the limited risk that it bears. Moreover, in a new contract for the Personal Independence Payment, Atos Healthcare is sub-contracting to the National Health Service for part of its work, suggesting it is transferring risk back to the public sector. The Department should explain how the profitability of the contract reflects the actual transfer of risk for both the Work Capability Assessment and the Personal Independence Payment medical assessment contracts”.
Perhaps today the Government would care to give an answer to the Public Accounts Committee. They should certainly not expect us to proceed with these regulations until those questions, and others to which I want to turn, are answered.
During the exchanges on 24 January, the Minister admitted that the consultation process had been inadequate. That was very straightforward and honest of him, and I thank him for the subsequent decision on removing the four trigger words. Their retention in the regulations at least gives people the opportunity to go to appeals and tribunals. However, he will know that despite his assurance that the change from 50 metres to 20 metres will have little or no impact on the number of people qualifying, disabled people have not unreasonably asked: “Why change it, then?”. The Minister promised to consult more widely before asking us to debate these regulations today. I wonder whether, following that further consultation, he can tell us which disabled people’s organisations support that change.
On my reading of the regulations, the reduction from 50 metres to 20 metres will still have an adverse effect. For instance, if a person can walk 20 metres “reliably”, et cetera, but starts to struggle at 30 metres, they will not qualify for the enhanced mobility component of PIP under the moving around activity, as they would be deemed able to walk more than 20 metres “reliably”, et cetera. The Government have admitted that:
“We do accept that we have not previously consulted on a 20 metres measure—and we did not receive suggestions that we include one. However, we have consulted extensively on the
assessment proposals and received very strong feedback that the ‘Moving around’ activity was unclear. Our changes were made as a direct result of these concerns”.
Having asked disability rights groups, they remain vexed that: first, there was no consultation on 20 metres; secondly, consultation on PIP assessment criteria did not clearly indicate the intention to use a distance of less than 50 metres, which was only implied in the case studies and insufficiently clearly to demonstrate proper consultation on a lower distance; thirdly, 20 metres is a massive reduction from the 50-metre distance established through DLA case law as proxy for being virtually unable to walk; fourthly, none of those responding to the consultation suggested 20 metres and only one mentioned a limit of lower than 50 metres, which has been referred to; fifthly, there is no research or evidence basis for 20 metres; and, sixthly, the 50-metre distance is embedded in guidance that was referred to earlier by the noble Lord, Lord McKenzie, in the Department for Transport’s inclusive mobility guidelines.
I have also seen a barrister’s opinion, which says that,
“it is arguable that the secretary of state has acted unlawfully by adopting eligibility criteria which are fundamentally different from the proposed criteria set out in the consultation process”.
Only today, I received an anxious e-mail about the possibility that the 20-metre distance will be seen by assessors as relating only to indoor mobility. I hope that the Minister will at least be able to lay that one to rest this evening.
Let me also refer to some case studies that were used by the department in its consultation and to the response that they received from Jane Young of We Are Spartacus. At a meeting with an official in April 2012, Ms Young challenged him on the apparent discrepancy between the descriptors and the case studies and was told that the case studies were provided “to make people think”. She responded that they merely served to frighten people and she now adds,
“it’s now clear our fears were entirely justified. They never actually meant 50 metres … and used the phrase ‘up to’ to ensure they could implement their intention to use a shorter distance in practice”.
I find it surprising that the Government can say with great confidence that their analysis is that the number of individuals who receive a score of 12 points or more from activity 12 to be broadly the same, regardless of this change, while saying simultaneously that they are unable to say how many people will be affected by the changes overall.
In conclusion, the financial consequences are very clear and the social consequences will not be far behind. People with significant mobility difficulties will become socially isolated. That in turn will lead to poorer health and well-being, a point made by the noble Baroness, Lady Browning, in her excellent speech. There will therefore be greater demands on the National Health Service and other public services. Mobility is often the only antidote to toxic loneliness, which in many ways is the scourge of the 21st century.
I end by quoting the Joint Committee on Human Rights, which published a report following its inquiry into disabled people’s right to independent living. In paragraph 110, it expressed concern,
“that the UNCRPD, and Article 19 in particular, does not appear to have played a central role in the development of policy.
Inadequate attention has been paid to the impact of relevant policy on the implementation of the UNCRPD, in contravention of Article 4(1) and 4(3)”.
It went on to make other conclusions in paragraphs 146 and 161, which I will not quote this evening.
Before passing these regulations, the Government should share with the House what legal advice they have been given on the susceptibility of this aspect of the regulations to judicial review. They should detail the staff and resources that will be involved in dealing with the many appeals that will be generated. They should also commission a cumulative impact assessment that would include the impact of welfare reform changes on other services, carers and Motability scheme users. Above all, they should not expect us to vote these regulations through without giving us clear answers about the numbers of people who will be affected and the manner in which Motability vehicles will be sequestrated and repatriated from the owners who are deemed no longer to qualify. I know that I am not alone in believing that these wholly underreported and ill-conceived proposals will come to define the Government’s approach to welfare reform, in a way that will undermine those changes that have commanded much more broad-based support.