|Improving payment of the
Disability Living Allowance
This speech was given as part of an Adjournment Debate on the case of a constituent, held on 9 September 2003.
Mr. Richard Bacon (South Norfolk): I am pleased to have the opportunity to introduce this short debate on disability living allowance, a benefit that is of value to many disabled people. Disability living allowance is paid to those who need help to look after themselves. The allowance has a care component, which is paid to someone who needs to be looked after, and a mobility component, which is paid to someone who needs help to get around. It is paid at different rates depending on how someone is affected by his or her disability.
To help answer the question whether one can get disability living allowance, the website of the Department for Work and Pensions asks potential applicants:
"Have you needed help for 3 months because of a severe physical or mental illness or disability, and are you likely to need it for at least another six months?"
That seems clear enough. However, all has not been plain sailing with the allowance and the Social Security Committee has commented on problems caused partly by court decisions changing the basis for eligibility but also by flawed administrative procedures which, it observed, fail
"in terms of simplicity and workability".
That is an understatement, and, what is more, it is not clear that things have improved since the Select Committee made that comment.
I should like to draw attention to the case of my constituent, Mr. Douglas Gowan, who lives in Hethersett in south Norfolk. Unfortunately, his case is complicated. The sequence of events is as follows. Mr. Gowan, who is English, worked in the United States for an American company called Amjet, which planned to buy a division of Vosper Thorneycroft in the UK. The decision to buy the UK business was taken in May 1999. The plan was for Mr. Gowan to return to England and run the newly-acquired UK business. Mr. Gowan duly sold his house in the United States and returned to the UK. By December 1999 he was a UK resident.
On 11 August 2000 Mr. Gowan had a very serious accident at Heathrow terminal 4, when he fell down two flights of steps leading to the Paddington express, sustaining very serious injuries, which led to massive swelling and inflammation. A doctor at the hotel where Mr. Gowan was staying took him in a wheelchair to St. Thomas's hospital, where he was refused treatment. The hospital said, wrongly, as it turned out, that he was not entitled to national health service treatment.
Although Mr. Gowan had a UK address by then, the hospital refused to recognise it because he did not have a current NHS number. Instead, with the help of a friend, Mr. Gowan went to the private Cromwell hospital, but that was cripplingly expensive, costing several thousand pounds a day. Again with the assistance of a friend, Mr. Gowan obtained a wheelchair-assisted flight to Milwaukee in the United States, where he still had some medical insurance. He was in a very serious condition and had to be stretchered off the aircraft. He was taken straight to Columbia hospital in Milwaukee.
Since the accident, Mr. Gowan has received extensive medical treatment and been seen by various specialists. He has been diagnosed with eosinophilic fasciitis with some variations. It is a rare neuromuscular disorder in which cells are activated to attack the immune system and the muscular control of the body. It is said to affect as few as one in 2 million people. There are periods of intense cramps and extreme pain, and sometimes what would be described in layman's terms as paralysis and total immobilisation. However, it is episodic. Mr. Gowan can lose the use of his legs suddenly, and fall down without warning.
It should be emphasised, since it is important with respect to what happened later in one of the disability living allowance appeal tribunal hearings in Norwich - there have been three such hearings so far - that Mr. Gowan had been habitually resident in the United Kingdom from December 1999 and that that fact is not contested by the Department for Work and Pensions or the Benefits Agency. When Mr. Gowan returned to England, he eventually applied for the DLA on 14 June 2001. The application was not recorded until 9 July 2001, but it is not now contested that he applied in June.
On Friday 17 August, Mr. Gowan was telephoned by a Dr. Purves, who said that he represented the Government and needed to make a disability assessment. He asked whether he could visit the following Sunday, 19 August. Mr. Gowan found it strange that a doctor should want to visit on a Sunday, but he agreed. When Dr. Purves arrived, he told Mr. Gowan that he did not have the proper forms with him, but he took notes on a plain paper pad.
Dr. Purves made no physical examination whatever, but sat in an armchair while Mr. Gowan was on a sofa opposite. Dr. Purves asked questions, made notes and commented at some length on the inadequacies of the US medical system.
On 21 September 2001, Mr. Gowan was informed that he was "not entitled" to the DLA. Dr. Purves's report was enclosed with the letter. For the first time, Mr. Gowan saw what Dr. Purves had written. Let it be remembered that Dr. Purves had not brought the proper forms with him and had said as much to Mr. Gowan when he arrived. Immediately on receiving the form, Mr. Gowan could see that his name was misspelt, the entry for his date of birth was incorrect and the report said that he could walk
"800 metres in 5 minutes",
whereas in fact he had said
"80 metres once a day and it could take 5 to 10 minutes".
There were some 32 factual inaccuracies in the form.
There was a tick in the box that stated that Mr. Gowan had read the form, although of course he had not even seen the form before, let alone ticked any box. Even more seriously, there was a signature purporting to be Mr. Gowan's, although it was in printed, separated letters and was not in fact his signature.
Although I am jumping ahead in the narrative, it may help to explain that following complaints by Mr. Gowan about Dr. Purves's behaviour, including to the General Medical Council, the medical services division of SchlumbergerSema - the contractor that is responsible to the Government for undertaking medical assessments - launched a serious complaint investigation team on the case.
In a letter to Mr. Gowan on 17 July 2002, SchlumbergerSema stated:
"Medical Services has reviewed the performance of Dr Purves and will now be making a request to the Chief Medical Adviser within the Department for Work and Pensions to remove him from the list of doctors approved to undertake disability assessments".
In short, Dr. Purves was removed for cause.
Dr. Purves does not accept the very serious allegation that he forged Mr. Gowan's signature on the form. However, he does admit ticking the box stating that Mr. Gowan had read the DLA140 form, which of course he had not done.
A letter to the GMC from the Medical Protection Society on behalf of Dr. Purves, dated 18 October 2002, stated:
"Dr. Purves accepts that, while there was no guidance to state he should do otherwise at the time, it was nevertheless an inappropriate shortcut to tick the box indicating that the person under assessment had read DLA140".
That is a fact; it is not in dispute.
It is also not in dispute - I am jumping ahead slightly once again, but it is worth stressing this - that the Appeals Service accepts that Mr. Gowan did not sign the form. The chairman of the tribunal, Mr. McDonald, stated at the most recent hearing, on 14 July 2003:
"You may take it that we accept that you did not sign the DLA140 form".
To return to the sequence of events, after having been told on 21 September 2001 that he was "not entitled" to the DLA, Mr. Gowan filed for reconsideration on 2 October 2001. His request for reconsideration was denied on 3 November 2001, but no reasons were given.
On 4 December 2001, Mr. Gowan filed an appeal, which was heard in Norwich on 18 February 2002. His appeal was denied. However, at the hearing he was denied a chance to present witnesses or even to offer documentary evidence to the tribunal.
As the right to a fair hearing is one of the most basic rules of natural justice, and the denial of a fair hearing was plainly unjust, Mr. Gowan accordingly applied to the regional chairman of the Appeals Service, Mr. Robert Martin, who is based in Nottingham, for the decision to be set aside.
On 12 April, Mr. Martin set the decision aside, and gave his reasons for doing so. He said:
"It appears to me just to set aside the tribunal decision because of the non-receipt of these documents, which are likely to be relevant to the issues under appeal, especially as much of Mr Gowan's argument in the appeal itself turned upon the question of the adequacy of the medical evidence that was actually given before the tribunal."
A new hearing for the tribunal was arranged. Mr. Gowan was informed in a memo some two months beforehand that it would take place on 18 February 2003, by coincidence a year to the day later than the first hearing. He then received a letter of 29 January 2003, which stated:
"Your appeal has been allocated a hearing date for 18 March 2003."
Mr. Gowan naturally thought that that was slightly odd because he had thought that the appeal was going to be on 18 February. He telephoned the Norwich benefits office to check the date as he had his witnesses lined up for the date that he had originally been told. The Norwich office confirmed the date of 18 March 2003, and said that it, too, had received the letter. Mr. Gowan accordingly informed his witnesses, including the medical experts, that the date was now 18 March 2003.
On 3 February 2003, Mr. Gowan received a letter stating that the appeal hearing had been scheduled for 18 February 2003 and not 18 March, as had been stated. The letter concluded:
"I apologise for any inconvenience my error may have caused."
By that time, Mr. Gowan had told his witnesses about the new date and some of them were now unable to attend on 18 February as they had made other plans. The whole point was that the previous year he had not been able to present witnesses at the hearing. That was why the decision was quashed. It now seemed that he would once again be unable to present his witnesses.
Mr. Gowan asked for a postponement. On 12 February 2003, he received a letter that stated:
"The request for a postponement has been refused . . . The tribunal can decide the appeal even if you are not at the hearing. As you have asked for an oral hearing, you may consider it is important you are there."
At that point I decided, as Mr. Gowan's Member of Parliament, that I should attend the hearing with him, as it was looking alarmingly possible that once again there would be an unfair and unjust hearing.
The tribunal met on 18 February 2003 and adjourned the hearing to a later date, having issued directions regarding further evidence that was needed to enable it to reach a decision. I shall describe the directions from the chairman of the tribunal, which I heard myself as I was at the tribunal. Mr. Gowan was asked to provide within 14 days a list of witnesses and any dates that should be avoided, which he did. The Secretary of State was to report within 14 days whether the report by Dr. Purves containing his original assessment of Mr. Gowan's condition was still relied on and, if so, to what extent. To date, there has still been no report from the Secretary of State on whether that report is to be relied on at all.
Another direction was that there should be a complete bundle of appeal papers, prepared as one bundle. On the Friday evening before the third hearing, which eventually took place on Monday 14 July, Mr. Gowan received an incomplete and out-of-sequence bundle at 5.30 pm, and only then after numerous telephone calls and complaints.
Another direction was that the Secretary of State was to produce all documentary evidence relating to the original DLA claim and the new claim, including a report from Mr. Gowan's treating physician, Dr. Naftalin, which entirely rebutted Dr. Purves's diagnosis. Again, that still has not happened, even now.
The hearing was eventually scheduled for 14 July 2003, when the tribunal met again. I also attended that hearing. Strangely, the chairman raised a new point of law at the hearing as to whether Mr. Gowan actually had the right to receive disability living allowance, as it was possible that he did not meet the residency test. As I stressed earlier, the Department did not contest the fact that Mr. Gowan met the habitual residency test.
That point was raised by the chairman at the last minute during the lunch hour. He produced a photocopied page of the relevant regulation, but did not produce a second page on which the text continued to state the exceptions to the residency rule. The appeal was again denied and in July Mr. Gowan asked for the reasons to be given. That has also not been done.
Will the Minister explain why my constituent, Mr. Gowan, is being treated like that? As a matter of law, when a tribunal issues a ruling, is it binding on the Government, the Department and the Benefits Agency as well as on the appellants? The Government have failed to do what they were asked: they have failed to report within 14 days on whether Dr. Purves' report is reliable; they have failed to produce a complete bundle of the documents; and they have refused to produce all the documentary evidence relating to the case. Incidentally, the Department admitted at the hearing on 14 July that it knew about the letter of August 2001 from Dr. Naftalin that rebutted Dr. Purves' diagnosis. If the tribunals are binding, and the Government have to abide by their rulings, in the absence of Government compliance with them, can my constituent possibly present a fair case?
The disability living allowance is a valuable benefit for many people. It is possible that it is abused by some people, and as a member of the Public Accounts Committee, I understand the Government's concern to ensure that abuse does not occur. However, it seems to me that the system is not working - there is systemic failure. My constituent, who is currently suffering, is a genuine case who has been waiting far too long to receive satisfaction after an accident that took place three years ago.
|© Richard Bacon 2010|