Chronically Sick and Disabled Persons Act (Hansard, 26 April 1982)

§ Mr. Alfred Morris (Manchester, Wythenshawe)

I know that the Minister will agree with me that the subject of this debate is of the first importance to disabled people and their families and to the organisations that exist to represent their interests. In a recent book about the Chronically Sick and Disabled Persons Act, entitled "A Charter for the Disabled", my respected former parliamentary colleague Bryan Gould says that the late Richard Crossman, then Secretary of State for Social Services, was anything but enthusiastic about the Act's provisions when they were first proposed in 1969. On that occasion, the victory went to disabled people and to Parliament.

More than 12 years later, the Act still has opponents, including a number of some subtlety, and the House must remain vigilant to ensure that it is the claims of disabled people and the will of Parliament that prevail. The supporters of my Bill were not, at any stage, all of one political party. They were drawn from both sides of both Houses of Parliament. Beyond Westminster, we had the backing and advice of many distinguished people in local government and the voluntary sector. I believe that we succeeded in turning our precepts into law because our sole concern was to improve both the well-being and status of disabled people. That concern is now much more widely shared in Parliament and the country and those who, for whatever reason try to frustrate the Act's purpose, must be warned that they will not be allowed to succeed.

Lack of time prevents me from detailing tonight the transformation that has taken place in the lives of disabled people since 1970 when the Bill became law. Millions have been helped directly as disabled people by its provisions and millions more indirectly by the support it gives to their families. Some local authorities were slow off the mark, but the majority have attempted full and humane implementation of the Act; and many councils are continuing to do so despite the devastating effects of the Government's policies on local government. Some authorities have recently been shown to be in clear breach of the law, however, and in this regard a recent statement by the Secretary of State for the Environment was especially disquieting.

In reply to an intervention of mine on 16 February about the statutory duties of local authorities under the Chronically Sick and Disabled Persons Act, in the debate on the Rate Support Grant (Increase) Order 1982, the Secretary of State said that the arrangement of priorities within each authority is a matter for that authority. We have made it clear that where the cuts should come is a matter for the individual authority's choice and discretion."—[Official Report, 16 February 1982; Vol. 18, c. 153.]

That statement gave the impression that local authorities could pick and choose whether to fulfil their legal duties. As the Minister replying to the debate tonight has the advantage of being a lawyer, I hope that he will make it clear to his ministerial colleague that local authorities have no choice or discretion about whether to meet their statutory duties. To "house train" the Secretary 699 of State for the Environment in this matter will not be easy, but it is essential that he should no longer be allowed to mislead local public representatives about their legal duties, and the hon. Gentleman should at least make the attempt.

The requirements of the law are not in dispute. In the first place, the local authority has a duty to assess the needs of any permanently and substantially disabled person in its area for any or all of the services listed in section 2 of the Act. If, after making an assessment, the local authority believes that the disabled person needs a service, it has a duty to make arrangements for provision within a reasonable time. The corollary of this duty, as I made clear more than once when I was the Minister, is that no local authority may lawfully withdraw a service from a disabled person if his need for the service has not diminished. Nor is it lawful for a local authority to plead lack of funds as an excuse for not providing a service. Again, although it may recover charges for any of the services, a local authority may not refuse or withdraw a service if the disabled person is unable to pay.

The Minister has never challenged these statements of the effect of the law; indeed, he has confirmed them on several occasions. The problem arises when a local authority fails to fulfil its duties. Following a decision of the Court of Appeal in 1978, the only recourse is to the Secretary of State for Social Services; and it is on the manner in which the Secretary of State has acted as the ultimate court of appeal that I shall be concentrating this evening.

Eighteen months ago, 15 charities, led by the Royal Association for Disability and Rehabilitation (RADAR), joined forces in a project to ensure full enforcement of the Act. The other charities were the Spastics Society, the Multiple Sclerosis Society of Great Britain and Northern Ireland, the Muscular Dystrophy Group of Great Britain, the National Society for Mentally Handicapped Children and Adults, Age Concern, Arthritis Care, the Association for Spina Bifida and Hydrocephalus, the Disabled Drivers' Motor Club Limited, Outset, the British Polio Fellowship, the Leonard Cheshire Foundation, the Royal National Institute for the Deaf, the Spinal Injuries Association and the Child Poverty Action Group.

A report of the first year's work, entitled "Putting Teeth in the Act", was published last month and I pay tribute tonight to Peter Mitchell and Mrs. Jane Cook whose work on the project has rightly been very highly praised by the all-party disablement group in the House. Mrs. Ursula Keeble preceded Mrs. Jane Cook and she, too, deserves the highest praise for her work on the enforcement project. By now, nearly 1,000 individual cases have been examined. Thirteen authorities have been referred to the Secretary of State for Social Services and two to the Secretary of State for Wales. Five of the 13 referrals were about failure to assess need, five about failure to provide a service after acceptance of need, and three about withdrawal of a service where the disabled person's need for it had not diminished.

Four of the cases relating to failure to assess need concerned a blanket refusal by the local authority to assist with holidays. These have been the least successful referrals to the Secretary of State; and I shall return to the individual cases in a moment. The fifth concerned failure to assess need for aids. A reply on this was received by RADAR earlier this month; and I shall be referring to it later in my speech.

700 Four of the five cases concerning failure to provide a service after acceptance of need related to the provision of telephones and one to failure to provide an adaptation to a disabled person's home. I shall be referring in detail to two of the telephone cases, in Wandsworth and Liverpool, and to the case about home adaptations in Barking, since they illustrate important facets of the use of the Secretary of State's default powers.

The third form of unlawful action was withdrawal of a service. RADAR, on behalf of the 15 charities, referred two authorities to the Secretary of State for the withdrawal of home helps and one for withdrawing assistance with telephone rentals and advising disabled people to ask for their telephone to be disconnected if they could no longer afford it. Happily, the last case was resolved by the council elections last May.

In March of last year two authorities, Richmond and Wiltshire, were referred to the Secretary of State on the grounds that they refused point blank to consider assisting disabled people with holidays. The individuals who had complained to RADAR wished to remain anonymous. Two months later, however, the DHSS replied to the effect that the Secretary of State could only initiate an inquiry into a complaint on behalf of a named disabled person. RADAR was advised by the project's lawyers that, In reaching this decision, the Secretary of State had misdirected himself as to his duties under the Act, but the Attorney-General refused the charities leave to challenge his ministerial colleague's decision in the courts. I shall also be returning to this crucial issue as I proceed.

Even when an individual was named, the Secretary of State showed little sense of urgency in ensuring that justice was done. The third referral to him was of two people in Oxfordshire who had been illegally refused assessment for a holiday on the grounds that the authority was not providing any. The case was referred on 16 March 1981 and the Secretary of State did not reply to RADAR until almost a year later, on 3 March 1982. Last November, I had already been convinced that the delay by the Secretary of State constituted gross maladministration, causing manifest injustice to the disabled people involved, and I referred the matter to the Ombudsman.

The Secretary of State's eventual reply about the Oxfordshire cases was revealing. The two relevant paragraphs read: We have been informed by the Chief Executive of Oxfordshire that the authority has agreed to make provision for holidays for disabled people. The Director of Social Services is now considering arrangements whereby a local voluntary organisation will undertake both the assessment of need and arrangements for the provision of such holidays on an agency basis for the local authority. We are assured that in the particular cases of Mrs. P and Mrs. C their needs will be assessed when the revised scheme is finalised. In view of these assurances, it is apparent that Oxfordshire County Council are now fulfilling their statutory duties in this matter. The question of a default order does not, therefore, arise.

I emphasise the word "now" in the last paragraph quoted. The Secretary of State clearly accepts that, for a whole year, the council was in breach of the law. Yet there is not one word of criticism of the council or of regret for the two disabled women concerned. In my opinion, the Secretary of State was gravely failing in his duties by not making a default order last summer and so ensuring that disabled people in Oxfordshire obtained their holidays then.

701 The final sentence is also incorrect since the letter states only that the Director of Social Services is "considering" arrangements, not putting the Act into effect. Can the Minister give the House more information tonight? My information is that Oxfordshire is making a token gesture and providing only a very limited number of holidays for the more persistent disabled people. Will the Minister now remind the council of its duty under section 1 of the Act to inform all disabled people in Oxfordshire of their right for their need for a holiday to be assessed?

One consistent feature of the Secretary of State's inquiries has been their inordinate delay. The second consistent feature has been the efforts he has taken to do no more than he has persuaded himself is required by his minimal interpretation of the law. Take the case of West Sussex. There the council withdrew home helps from people who could not afford the charges they were imposing. Three individual cases were referred to the Secretary of State and, five months later, he replied saying that their home helps had been restored. But what about other disabled people in West Sussex? What action has the Secretary of State taken on the issues of principle and of law to protect disabled people as a whole in the county?

Three disabled people in Brent complained last year to RADAR to the effect that they had received a circular letter stating that the council was not providing assistance in response to their request for help with a holiday. The cases were sent to the Secretary of State in May 1981 and, at the end of August, he replied to the effect that the council was still running its own holiday scheme and, if the people concerned had asked to be included, they would have been considered. I remind the Secretary of State that section 1 of the 1970 Act places a clear statutory duty on local authorities to inform disabled people about the services it provides. Yet no information about the council's holiday scheme was included in the letter of refusal sent to the three disabled people who had complained. How does the Minister react to that?

In Barking, an elderly woman who had been waiting for over a year for a simple adaptation she needed to her home, was admitted by the Director of Social Services to be only one of many. Following an inquiry, the Secretary of State wrote back to RADAR to say that the adaptation had been done. The Secretary of State showed no sign of being concerned about other cases in the borough, but I am happy to say that the council has cleared the backlog.

The pattern was now becoming clear to the 15 charities. After considerable expense by them, by the Department and by the councils, the referral procedure was, except in the case of holidays, resulting in belated provision or restoration of a service for the individuals whose names were referred to the Secretary of State. That pattern was, however, broken by the London borough of Wandsworth. There the Secretary of State put pressure on the council to supply a telephone for the one person named by RADAR. But the Director of Social Services refused to allow her to jump the queue when many people in greater need had been waiting for a telephone much longer. Much to his credit, he put it to his council that it must provide money to clear the entire waiting list for telephones; and that is what was done.

Matters took a rather different turn in Liverpool, although the position there had been much the same as in Wandsworth. One individual had enlisted RADAR's help 702 to obtain a telephone from a waiting list of several hundred. The case was that of a woman who had been discharged from hospital after a double amputation. She had been told that she was a priority case for provision of a telephone but would have to wait two years for it to be installed. She was also very urgently in need of adaptations to her home. In fact, she ws homebound because of access difficulties and was consequently at severe risk in case of fire, which should remind everyone that the Act is not about trivialities but one whose purpose is to help some of the most hard-pressed and needful people in Britain today.

Following RADAR's complaint and the Secretary of State's intervention, the disabled woman obtained her telephone, but both the council and the Secretary of State were happy to let matters rest there, notwithstanding reports, including one by Pat Healy in The Times on 24 December 1981, that many hundreds more disabled people were being herded on to Liverpool's waiting list.

Fortunately, RADAR was not prepared to let maters rest and wrote again to the Secretary of State asking for an inquiry to be made into the circumstances of the other people on the waiting list, even although their names were unknown.

This time RADAR struck gold. On 17 March the DHSS wrote again to Liverpool asking for its comments on RADAR's letter so that the Secretary of State might consider what action he should take under section 36. On the same day, the city council was writing to a number of Liverpool's Members of Parliament informing them that the council had made a further £20,000 available for the provision of telephones.

For the purposes of tonight's debate the Department's letter is of greater significance than Liverpool's belated acceptance of its legal duties, because, as I said earlier, the Secretary of State had hitherto been arguing that he could conduct inquiries only into complaints relating to named individuals. There is said to be more joy in Heaven at one sinner who repenteth than at 99 just persons, and I know that the 15 charities would want me to acknowledge tonight the importance of the Government's volte face.

I know that those charities would also like me to place on the parliamentary record the implications of the decision to act on RADAR's letter without quoting the cases of named individuals. The Minister has now accepted that he has a duty under section 36 of the National Assistance Act 1948 to institute inquiries where there is evidence submitted to him that local authorities are in breach of their statutory duties towards disabled people under section 2 of the Chronically Sick and Disabled Persons Act 1970, even if it is not possible to supply the names of all or any of the disabled people who are suffering as a result.

The Minister's acceptance of this duty is deeply important to disabled people throughout the country. What I hope he will now do—and what many people outside this House will expect him to do tonight—is to announce in clear terms that he will henceforth take all steps necessary to ensure that disabled people, irrespective of whether they are able to complain, are informed of, and in fact receive, all the services that Parliament intended them to have.

In this regard, I shall be grateful if the Minister can comment tonight on a recent reply to RADAR about inquiries by his Department into a case in Lewisham. In July 1981, RADAR referred the case to the Secretary of State because of a delay in assessing the needs of a named 703 disabled person. In correspondence with RADAR, the council had said that several people were in a similar position because of the shortage of staff. I understand that the Department wrote to the council in August 1981 and that the chief executive replied in September. Yet the Department did not write again to RADAR until this April, following parliamentary questions by my hon. Friend the Member for Lewisham, West (Mr. Price).

There are two matters of concern to RADAR and the other charities. First, the Secretary of State declared himself happy that the needs of the complainant had been adequately assessed, although no visit was made. The charities want the Minister now to say, therefore, whether he stands by the advice given by the DHSS in 1970, when the present Secretary of State for Education and Science was Secretary of State for Social Services, that assessments should be complete and not partial and should consider all relevant needs. They also want him to explain how assessments for adaptations to somebody's home can be done from the town hall.

Equally important to the 15 charities is the fact that, in the reply that the DHSS received from Lewisham's chief executive, it was stated that 1,355 disabled people were on the waiting list for aids and adaptations of whom 542 were classified as priority, housebound, severely disabled or with degenerative diseases". Yet this information was not even mentioned in the Department's reply to RADAR. It was provided by the chief executive to my hon. Friend the Member for Lewisham, West.

There is not the time now to go through all the cases investigated by RADAR, many of which are very disturbing and indeed heart-rending. As I said, my principal purpose tonight is to subject to parliamentary examination the way in which the Secretary of State has been performing his duties under the law.

The Minister should answer four questions. First, does he accept that section 2 of the 1970 Act lays a duty on local authorities to help all disabled people in need in their areas and not just the odd individual who contacts RADAR? Secondly, does he accept that Parliament has laid a duty on the Secretary of State to ensure that the law is obeyed? Thirdly, will he assure the House that from now on he will conduct urgent and comprehensive inquiries into any evidence submitted to him that local authorities are not fulfilling their statutory duties? Fourthly, will he make it pikestaff plain that he will have no hesitation in using his default powers whenever it is necessary to ensure that disabled people receive the services that Parliament intended for them?

As well as placing on the parliamentary record his answers to those four questions, I hope that the Minister will join me in paying tribute tonight to the 15 charities for their leadership in having mounted the enforcement project and for providing so much help since to so many disabled people.

§ The Minister for Social Security (Mr. Hugh Rossi)

Firstly, may I take this opportunity of thanking the right hon. Member for Manchester, Wythenshawe (Mr. Morris) for raising this difficult matter. His concern for the well-being of disabled people is well known and appreciated.

For many years it has been the practice in this House not to regard policies for disabled people as being a matter 704 of contention between the parties. The policies that I now pursue on behalf of disabled people, including the matters we are now discussing, do not differ markedly from those of the right hon. Gentleman when he was in office.

We all want to achieve for disabled people full and dignified lives, where possible within the community. To achieve that, many disabled people need some degree of support from the community whether in terms of financial benefits or services and facilities. Much of the progress along that road has been assisted by the Chronically Sick and Disabled Persons Act 1970 which was passed with all-party support and sponsorship and of which the right hon. Gentleman had the singular honour to be principal author. That Act was of its time. It gave legislative form to the increased awareness then of the needs, and also the rights, of our fellow citizens who happen to experience disabilities.

I think I am right in saying that that awareness which led directly to this Act has increased steadily since 1970, with the process being greatly assisted by the International Year of Disabled People, and has been matched by a continuing increase of expenditure upon personal social services by local authorities. From 1970 to now there has been a startling increase in expenditure in real terms upon services and benefits for disabled people. Yet as awareness has increased so, too, has pressure for further progress.

That brings me more specifically to the question of the enforcement of the duty imposed upon local authorities by section 2 of the 1970 Act. My answer to the right hon. Gentleman is that that is a legal duty imposed on all local authorities that have a responsibility for personal social services. In the vast majority of cases—these must be numbered annually by tens of thousands—there is no need for any enforcement. Local authorities are well aware of the duties imposed by section 2 and, in the main, they carry them out quickly, effectively and willingly.

To hear some people talk one would think that local authorities did not want to provide the necessary support for disabled people. Of course they do. It is one of their functions and they wish to carry it out to the best of their abilities. Moreover, each local authority is far better placed to know exactly what it is necessary for them to provide than I or my Department, sitting in isolation at the Elephant and Castle, possibly can.

The problem then, to the extent that there is one, is at the margins. Some disabled people, quite naturally, do not think that their local authority is doing for them what the statutory duty demands they should. In a few cases it is possible that from time to time they are right. How can the duty be enforced in those few cases?

The right hon. Gentleman has been critical of the way in which my Department has dealt with applications to my right hon. Friend the Secretary of State to exercise his powers under section 36 of the National Assistance Act 1948. He said that the Department takes too long to deal with these default applications. They do, indeed, take an inordinate length of time, but the right hon. Gentleman will know from his own experience of these cases when in office that the sensitive issues involved do not readily lend themselves to this sort of procedure.

These default applications are tremendously time consuming for both the Department and the local authorities concerned—often ludicrously out of proportion to the actual services in question. However, we think it more important to encourage a local authority to reappraise its policies where it may be mistaken, and to give it an 705 opportunity to do so, than it is to invoke formal proceedings against it. That is my policy, and that was the right hon. Gentleman's policy. Getting an outcome favourable to a disabled client, where this is justified, is what matters most.

In view of the questions posed by the right hon. Gentleman, perhaps I should outline what I am advised is the legal position. Section 2 of the Act is about the provision of certain services by a local authority for an individual. That is all that it is about, and the duty is caught by the provisions of section 29 of National Assistance Act 1948. In consequence, the default powers in section 36 of the 1948 Act bite on that duty.

When asked to exercise his section 36 powers in the sort of cases with which we are concerned, the Secretary of State has to consider whether the local authority is performing its functions under section 2 of the 1970 Act. As I have said, that section concerns only local authority provision for individuals and, therefore, that is what the Secretary of State must look at. There is nothing else that he can properly consider.

The right hon. Gentleman and others may find that unsatisfactory. So do I, but that is what the Acts provide. A number of alternatives have been proposed in the House from time to time, but no one has come up with an alternative that is satisfactory to all.

The right hon. Gentleman referred to a number of specific cases and puts me in a difficulty, because they are all instances in which my right hon. Friend has to act in a quasi-judicial manner. It would not be proper for me to discuss how he comes to his conclusion in such cases, especially since some are before him at present. The right hon. Gentleman referred to one or two of those cases.

However, I can talk in general terms about whether the recent action of the Liverpool council demonstrates a change of policy. I must disabuse the right hon. Gentleman, because there has been no change of policy. In that case, as in all others that come before the Secretary of State, the local authority concerned has responded positively to the preliminary inquiries that are always made before the default powers can be exercised. That reinforces my basic premise that local authorities are responsible and well-intentioned.

706 I am prepared to reaffirm and to stress, because the right hon. Gentleman asked me to do so, that the Secretary of State will continue to consider any case put to him in which there is evidence that a local authority may be failing to meet its duty, and he will take appropriate action if necessary.

The right hon. Gentleman made much of the report by RADAR and the 14 charities which came together in a campaign for the absolute implementation of section 2. Much of the report was critical of the Department and of the Secretary of State. However, may I take the opportunity to praise the campaigners on at least part of their activities? I appreciate their intent and commend their effort. I also, of course, dispute their criticism and regret the unnecessarily antagonistic stance that they have sometimes adopted towards local authorities, but the fact remains that they have performed the function of eloquent and tireless advocates for disabled people, many of whom may tire easily or may have difficulty in expressing themselves.

RADAR and the other charities have performed the function of intermediary and trouble-shooter in many individual cases, clearing up misunderstandings. I praise them for that, as I know that many disabled people have cause to be grateful to them. The fact that that is so is in no sense a criticism of local authorities which have patently reacted constructively when approached in the same spirit.

At the end of the day, only a very small fraction of the cases that the RADAR campaign considered—the right hon. Gentleman mentioned the figure of 13 or 14—resulted in an application to the Secretary of State to exercise his default powers under section 36 of the 1948 Act. Those cases must be seen in the context of the tens of thousands of cases in which local authorities readily, quickly and effectively give help to disabled people.

Perhaps RADAR has proved itself to be the solution to the problem that it sought to solve.