§ "(3) Without prejudice to any remedy prescribed by this Act or by any other statutory provision, it shall be the right of any person to make application to the appropriate court;
- (a) in the case of a person to whom subsection (1) of this section applies, where a local authority:
- (i) has failed to make reasonable provision for any of the needs of that person in respect of which arrangements are to be made under subsections (1) hereof; or
- (ii) refuses to assess any or all of the needs of that person in order to determine whether those needs are matters in respect of which arrangements have to be made under subsection (1) of this section;
- (b) in the case of any other person, where a local authority has determined that that person is not a person to whom section 1(1) applies.
§ (4) An application under subsection (3) may be made by any person in respect of whom it is claimed that subsection (1) applies provided that, where (an appointment has been made in accordance with section 1 of the Disabled Persons (Services, Consultation and Representation) Act, the application may be made by the person so appointed.
§ (5) On an application made under subsection (3), without prejudice to any other powers of the court, the appropriate court may:
- (a) make a declaration as to whether any arrangements made in accordance with subsection (1) of this section are reasonable to meet the needs of the person by or on behalf of whom the application is made;
- (b) make a declaration that the needs of any person by or on behalf of whom the application is made are needs in respect of which arrangements have to be made under subsection (1) of this section;
- (c) make a declaration that a person is a person to whom subsection 1(1) of this Act applies;
- (d) make a declaration as to the arrangements which it is necessary for a local authority to make under subsection (1) of this section for any person by or on behalf of whom application is made;
- (e) award damages to any person by or on behalf of whom application is made where a declaration is made under paragraphs (a), (b) or (c) of this subsection in respect of any period during which:
- (i) the local authority has failed to make reasonable provision in accordance with subsection (1) for any of the needs of a person to whom that subsection applies;
- (ii) the local authority has refused to assess any need of a person to whom subsection (1) applies to determine whether it is a need in respect of which arrangements would have to be made under that subsection, provided that the court shall only award damages for any need in respect of which arrangements would have had to have been made;
- (iii) the local authority has determined that a person is not a person to whom subsection (1) applies and the court has granted a declaration in accordance with paragraph (c) hereof, provided that the court is satisfied that arrangements should have been made under subsection (1) in respect of any needs of that person and no such arrangements were made.
§ (6) The appropriate court for the purposes of subsections (3) and (5) is:
- (a) the county court except in a case falling within paragraph (b) hereof;
- (b) the High Court in accordance with the provisions of section 31 of the Supreme Court Act 1981 where the relief sought includes an order of mandamus.".'.—[Mr. Cohen.]
§ Brought up, and read the First time.
§ Mr. Deputy Speaker (Sir Paul Dean)
With this it will be convenient to take Government amendment No. 8.
§ Mr. Cohen
I should like to give my congratulations to my hon. Friend the Member for Monklands, West (Mr. Clarke) on his excellent Bill. I am aware that time is short, and as I wish to see the Bill make progress, I shall be as brief as possible.
The new clause strengthens the Bill by providing better legal rights for the disabled. It comes via NETWORK, the law and advisory centre for the handicapped and their families, which does valuable work in supplying desperately needed legal assistance to many of the disabled and their families, including some of my constituents. Indeed, I welcome the decision announced this week to award it a central Government grant.
The new clause is the opposite of Government amendment No. 8, which continues the current restrictions on a disabled person making an application to the court under section 2 of the Chronically Sick and Disabled Persons Act. My new clause gives any person a direct right to make an application to the court. It also gives the court power to make declarations on whether existing arrangements are reasonable in order to meet the needs of the disabled person, and on what arrangements the local authority should make for him.
The court will also have the power to award damages if the local authority has failed to make reasonable provision and if it has refused to assess a disabled person's need. The new clause ensures that local authorities carry out their duties to the disabled as, if they do not do so, they could face the sanctions of the court. It is clearly not right that Parliament's stated aim to achieve better conditions for the disabled should not be fully accessible, through the courts, to disabled individuals. Yet that is the case now, particularly as under the Chronically Sick and Disabled Persons Act, long delays in exercising ministerial or local authority powers to take a case to court can deny rights.
The new clause seeks to tackle that, and to provide full access to the court. As my right hon. Friend the Member for Manchester, Wythenshawe (Mr. Morris) said in Committee, we are not seeking new rights but the better enforcement of existing rights. Indeed, as I know that he wants to say a word on this important issue, I shall sit down.
§ Mr. Alfred Morris
My hon. Friend the Member for Leyton (Mr. Cohen) was eminently correct to say that we 532 are seeking not new rights for disabled people but the better enforcement of existing rights for which Parliament has already given its sanction and made provision. It will be argued that at present disabled people can go to the Secretary of State for Social Services with a request that he should use his default powers if they believe that they are being unjustly treated by local authorities. Yet there has been unconscionable delay in the handling of complaints from the Royal Association for Disability and Rehabilitation, as from other organisations. It is now widely felt that procedures could be speeded up in a way that would help more disabled people to achieve the benefits made for them by the House of Commons.
In this regard, I must make it clear that a mandatory duty already exists under the 1970 Act to assess the needs of disabled people. Financial factors are legally an irrelevant criterion in the assessment of needs; if need is accepted there is a mandatory duty to make the arrangements required. It may still come as a surprise to some, in both town and county halls, that the rights of disabled people are that strong under the law as it now stands.
I know that my hon. Friend the Member for Leyton does not wish to press his amendment to a division. He is extremely conscious, as I am, of the need to proceed quickly to Third reading. However, I hope that the Minister, in replying, will accept that there is now a compelling need to speed up the process of dealing with the complaints of disabled people, more especially when they are supported by organisations that Members on both sides of the House respect.
§ Mr. Newton
In the light of what has been said by the hon. Member for Leyton (Mr. Cohen) and the right hon. Member for Manchester, Wythenshawe (Mr. Morris), I hope it will not be discourteous if I do not rehearse at length the details of the Government's argument that led us to wish to delete present clause 8, thus leading us to resist new clause 13. I will comment briefly on what the right hon. Member for Wythenshawe said about default inquiries under section 36 of the National Assistance Act 1948. I undertake to consider at greater length than the two minutes I have had so far what he has said. He will know that a number of applications have been made under that section of the 1948 Act and inquiries made, but as yet no default order has been made by a Secretary of State of any political colour. It is important to recognise that in several cases the inquiries that have been initiated by the relevant Minister and the Department have led to a change of policy, at least for the individual concerned, even though in other cases it has been found that the authority had in fact met its duty.
I realise that sometimes criticism is made of the time taken to make such inquiries, but I have to recognise that the first stage in such an inquiry is necessarily to seek the comments and response of the local authority concerned. In itself, that can often take some time. I certainly hope that these matters will be dealt with expeditiously. I note the criticism that the right hon. Gentleman has made and I shall certainly take it into account in considering whether there is any action I can take at present that would help to ease anxieties.
§ Motion and clause, by leave, withdrawn.