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Attendance Allowance

Volume 961: debated on Tuesday 23 January 1979

The text on this page has been created from Hansard archive content, it may contain typographical errors.

I beg to move amendment No. 1, in page 1, line 18, at end insert:

'in respect of both a re-award of the attendance allowance and an award of a higher rate allowance to a person already in receipt of an attendance allowance at the lower rate'.
Though I shall not take up too much of the time of the House, the amendment is important in that it allows us to take a further look at a problem that causes grave concern to the Disablement Income Group and other disablement organisations. We are here dealing with the qualification conditions for the attendance allowance, especially as they apply to the disabled person who is already in receipt of a lower rate attendance allowance but whose condition deteriorates to such an extent that he or she therefore becomes eligible for the higher rate allowance.

In Committee the Minister gave an unequivocal answer to the question whether the seriously disabled person of whom we are talking would have to wait a further six months before becoming eligible for the higher rate of allowance, whatever the circumstances. His arguments then, I believe, were the ones expressed by his right hon. Friend the Minister with special responsibility for the disabled in letters and correspondence with Peter Large and the Disablement Income Group. Those arguments amount to the requirement by Government of a six months' qualifying period in order to be sure that the deterioration in the condition of the disabled person or patient is reasonably long-term or permanent.

I accept that there are temporary illnesses, such as influenza, which could make a disabled person appear to have deteriorated suddenly for a very short period, but in Committee the hon. Member for Chorley (Mr. Rodgers) said that the waiting period was undoubtedly formidable and very frustrating. It is in that context that I move the amendment. We are seeking to achieve a more humane approach to the problem of the waiting period. Instances have been reported of unfortunate people who have died before the second six months' qualifying period for the higher rate allowance has been completed. We can understand how that can happen.

A particular case quoted by the Disablement Income Group, which came to the group through a social worker, was that of a lady in receipt of the lower rate allowance who had had two strokes and was partially disabled and in need of attendance. She suffered two further strokes, having already become entitled to the lower rate allowance, but had to wait a whole six months more before she could receive the higher rate of allowance.

The husband, who had a job and would have continued working under normal circumstances, had to give up his work to look after his wife because of that six months' delay. It seems somewhat harsh to hold up that financial help for the six months after deterioration has taken place when the increase in disability has clearly taken place.

There are also those disablement diseases such as multiple sclerosis and arthritis, where the condition is often expected to deteriorate. The problem can arise quite often. It seems to me that if the first six months' qualifying period has been completed, and if such worsening of condition takes place, at least the payment of the higher rate allowance should be backdated to start from the day when the deterioration is assessed as having taken place, and not some six months later.

I do not believe that a temporary illness, such as influenza, which has been quoted as being one of the problems that may arise in determining deterioration, cannot be distinguished by the medical experts from the real deterioration in disability with which I am dealing.

I hope, therefore, in moving this amendment, that this will give the Government a chance to accept the genuine purpose behind it and to look sympathetically at it.

The effect of the amendment that the hon. Member proposes would be that anyone already receiving the lower rate of attendance allowance whose attendance needs increased, for whatever reason, would immediately qualify for the higher rate of the allowance, notwithstanding that the conditions to be satisfied for that rate are different.

I can see that on the face of it this might seem a desirable amendment—indeed, there was some support for it in Committee—but I think it would produce effects quite contrary to those which the hon. Member and his hon. Friend have in mind. For example, as he acknowledged, someone may receive the lower rate because, as a result of his chronic disablement, he needs attendance by day. Should he, however, have an attack of influenza or some other acute but short illness and as a result have quite different attendance needs at night for a short while, he could, by reason of this amendment, qualify for the higher rate of the allowance for that period. In that event he would be receiving the higher rate for attendance needs that were neither established nor long-term.

The position of someone receiving the lower rate of the allowance is no different from that of someone claiming the allowance for the first time, where there is a need to establish that the particular attendance needs that are spelt out in the Act, for whatever rate of allowance is to be paid, are settled and long-term. I think that these are the two key factors.

The purpose of the allowance has always been to provide a measure of financial assistance to those severely chronically disabled people with settled long-term attendance needs, who, arising out of those needs, have established commitments above the normal. It would be impracticable and, we feel, wrong to alter the purpose of the allowance to meet short-term attendance needs—I think that the hon. Gentleman accepts this—or to vary it to meet what in many instances would be short-term fluctuations in those needs. If account were to be taken of temporary changes it would have to cut both ways and the allowance would have to be stopped if there were improvement, or reduced if somebody were on the higher rate. I am sure that hon. Members would not want a position to arise in which disabled people were put into a state of uncertainty about their continuing right to the allowance.

Moreover—this, too, came up in Committee—the amendment would impose an impracticable and heavy burden on the doctors charged with deciding whether the attendance needs are satisfied. Those needs can well vary from person to person even where they are suffering from similar conditions, and their necessity and extent can be satisfactorily established only over a reasonable period of time.

As I said, we think it would be wrong to change the entire character of the allowance in the way this amendment would achieve. The six months' qualifying period makes it possible to decide with reasonable certainty that attendance needs are established and settled, and I think that is the main purpose of section 35 of the principal Act.

Although I am sympathetic to the points that the hon. Gentleman is making, I hope that in view of what I have said he will ask leave to withdraw the amendment.

I accept the point—I think I made it clear in my own speech—about the short-term nature of the provision. I agree that we do not want to change the rules to deal with short-term deterioration. The point that I was making, which I do not think has been dealt with, is where one has the expected deterioration in such diseases as sclerosis, or with strokes and heart conditions, where in fact the six months' delay still has to take place. Is it not possible for the Minister to look again at this whole question of whether, when the deterioration is judged to be of a permanent nature, the higher rate allowance can be made payable from the date when the deterioration is assessed to have taken place?

I shall consider that matter and write to the hon. Gentleman as soon as I can.

In view of the Minister's sympathetic response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 2, in page 2, line 19, at end insert—

"(7) For the purposes of determining the entitlement to attendance allowance of any person who
  • (a) has been refused payment of an allowance, or
  • (b) has had an allowance withdrawn,
  • Section 35 of the principal Act shall be deemed always to have had effect as amended by this section, but payment shall be made at the appropriate rate out of the National Insurance Fund.".
    The amendment refers to a part of the attendance allowance that was dealt with at some length in Committee. At the end of that debate a number of us still felt unhappy about the manner in which the Government had chosen to make back payments of attendance allowance for kidney dialysis patients who dialyse at home.

    Many patients had the full facilities of the National Health Service and were dialysing in our hospitals. They were in receipt of the attendance allowance. As a result of changes in the rule by the Attendance Allowance Board, those persons who had been dialysing three times a week at home, and who, through modern methodology, were permitted to dialyse for longer periods but on fewer occasions per week, had the attendance allowance withdrawn. That was done in a way which I think every hon. Member regretted. A decision was made and it took effect during a parliamentary recess. That happened last summer, during the previous Session.

    My hon. Friend the Member for Ealing, Acton (Sir G. Young) introduced a Private Member's Bill in which he sought to rectify the anomaly whereby those who were in receipt of the facilities of the NHS and dialysed in hospital to cope with their renal failure were in receipt of the allowance and those who through modern methodology were dialysing at home and having to pay somebody to prepare their renal dialysis machines and complete the operation after their periods of dialysis were denied the attendance allowance.

    It will always remain a regret to me that we did not solve the problem in the summer. However, as a result of the work of the British Kidney Patients Association and many other interested bodies which felt that an unfair state of affairs existed, we reached a position in which the Government felt that they could no longer resist what seemed such a sensible and right solution to a problem that had, through a quirk in our law, become a matter of concern and dispute.

    When the Government moved the Second Reading of the Bill on 21 November 1978, they did so with the intention of rectifying the law and ensuring that in future those who dialysed at home would receive the attendance allowance and that those who dialysed in a hospital with the attendance of Health Service staff would not qualify for the allowance because they would not be paying for someone to prepare their renal dialysis machines and complete the operation after the period of dialysis.

    We thoroughly applaud what the Government have done in the Bill. We wish that they had taken similar action when my hon. Friend the Member for Ealing, Acton introduced his Bill last year. Never mind; the Government saw sense in the end. At various stages we have concerned ourselves with the manner in which the Government have sought to make retrospective payments to about 100 persons who we know lost their attendance allowance because they were becoming home dialysis patients. We concerned ourselves with how we could rectify what had become an unfair state of affairs.

    10.15 p.m.

    In Committee, in response to a question from my hon. Friend the Member for Ealing, Acton, the Minister said:
    "I know that the Opposition, not least the right hon. Member for Wanstead and Woodford (Mr. Jenkin), are highly intrigued to know how the Government have the power to do this. 'Extraordinary payments' as is made clear by their title, have no statutory basis."
    This relates to the back payment of those who had been denied benefit. The Minister continued:
    "In essence, they are payments which the responsible Minister regards as being within the broad intention of the relevant statute, but outside a strict interpretation of its terms. Such payments are in general not disputed, but as they are not strictly proper in a legal sense they need to be noted in the appropriation account when that is laid before Parliament for approval."
    Something which is "not strictly proper in a legal sense" worries me. The Minister went on:
    "Responsibility for such payments rests with the departmental Minister, but, given the Treasury position under the Exchequer and Audit Departments Acts of 1866 and 1921, they may not be charged to a Vote without Treasury approval. The Treasury's position was set out in a Treasury minute of April 1868, which has been reproduced on pages 20 and 21 of the report for 1868 printed in the 'Epitome of reports of the Public Accounts Committees 1857–1937'".—[Official Report, Standing Committee D, 5 December 1978; c. 25.]
    That is a really interesting little snippet from the Official Report of the Committee, but what has concerned us for a very long while is not only that payment should be made as speedily as possible—I fully accept that that has been the Government's wish as well—but that we should not be using some rather antiquated Act to rectify a mistake of Government but, rather, that we should make clear once and for all that if a change in the rules was made by somebody—such as, in this case, the Attendance Allowance Board—we had a better way of dealing with it.

    Unfortunately, within the terms of the money resolution attached to the Bill it is simply not possible to do the job as we would wish. Therefore, in raising this issue with another of our "myth" amendments tonight—our national insurance fund amendments—we are seeking to make sure of what has happened and also to ensure for the future that we devise a better way of rectifying mistakes on the part of Government where they are quite genuinely agreed between all Members of the House.

    The further question I would put to the Minister in proposing this amendment tonight is this. I know it is early days since 5 December, but what progress has the Department made in trying to find those cases, of which the Minister spoke at column 30 of the report of the Standing Committee, of persons who should have received the attendance allowance, and particularly those cases where the person to whom the attendance allowance is being awarded is now regrettably deceased, and where the relatives of that person have a claim in law? If this is to be considered, as the Minister seemed to indicate, how far have we got in sorting out this very unfortunate situation which we allowed to occur within our legislation?

    We know that it is early days but we believe that we should seek to rectify this as speedily as possible, and this amendment will give the Minister who is to reply an opportunity to explain just how far he has proceeded with his extra-statutory payments and just how far the Department has been able to track down the relatives of deceased persons who should be claiming back attendance allowance for those who have since died but should have received it whilst they were home dialysing, once the entitlement had been removed. I do not believe that we need prolong this debate, but for the sake of the record I feel we should rectify something that has been regretted by everybody but which really lies in the hands of the Government for rectification.

    This matter has already had considerable discussion both on Second Reading and in Committee. It is common ground to both sides of the House that benefit should be restored to persons dialysing at home and that arrears of benefit should be paid as soon as possible for the interval between cessation and resumption. The Bill as we introduced it allowed for the restoration of benefit. Also, as I announced on Second Reading, the Government decided to identify the persons involved forthwith and to make payments in arrears immediately. I said that the payments would be made extra-statutorily, and in Committee my right hon. Friend explained at considerable length what that meant.

    The hon. Member for Wallasey (Mrs. Chalker) asked me for figures. The Government have honoured their pledge, and 40 payments of arrears have already been made. The remainder will be paid as quickly as possible.

    There is no need for this amendment to enable such payments to be made. Indeed, I am advised that the amendment, if approved, would cause considerable confusion and could harm some of the people we are all concerned to help. First, in the case of those who have already been paid their arrears, the amendment would give entitlement to a second payment of arrears. It would not simply validate the existing payment but would enable the independent statutory authorities to make a new award. Hon. Gentlemen opposite presumably do not wish to make duplicate payments from public funds.

    Secondly, the amendment would put in question the payments made since 1972 to persons dialysing as hospital outpatients, because it applies to section 2(6) as fell as the other parts of clause 2. Finally, the national insurance fund is not the appropriate source for attendance allowance payments as the hon. Lady acknowledged.

    We should pay a tribute to Mr. Peter Large, who in drafting amendments to Bills first adopted the stratagem of making recourse to the national insurance fund. His idea has been widely followed by hon. Members on both sides of the House.

    The hon. Lady referred to the British Kidney Patients Association. She may wish to know that Elizabeth Ward, of the association, wrote to me appreciatively about our solution to this difficult problem. She clearly appreciated that we wanted to help and sought the most expeditious way to do so.

    Many of those involved are already receiving their payments. The amendment is not necessary on that count. Moreover, it would create confusion and might act against the interest of claimants. Therefore, I hope that the hon. Lady will ask leave withdraw the amendment.

    The Minister knows why the amendment was so worded. We have, as a result of this device, received from him the good news that 40 people have so far had their back payments. However, it still behoves us to realise that we are using an ancient statute to do something which, because of administrative difficulties, we may find ourselves required to do on other occasions.

    We always hope that these things will not happen, but those of us who have been concerned with social security measures for a number of years in this House know that we are always amending and reamending provisions and bringing them up to date.

    We also know that in the nature of a developing system of assistance for the disabled and those in need we shall come across cases which in the original drafting have not been fully explained or understood. Therefore, although I accept that the amendment is defective, I believe that it has at least enabled the Minister to tell the House what is going on. It has put down a marker to the effect that in future we must look to a better way of making the extra-statutory payment for the payment which should have been owing but for the device which took place when Parliament was not in session, which meant that we could not rectify the matter by other means. I am wrong to say that we could not have rectified the situation. However, the Government did not see fit to give the Bill introduced by my hon. Friend the Member for Ealing, Acton (Sir G. Young) a fair wind. Had they done so, our amendment would not have been necessary.

    I beg to ask leave to withdraw the amendment.

    Amendment, by leave, withdrawn.