ASSESSMENT BY LOCAL AUTHORITIES OF NEEDS OF DISABLED PERSONS (Hansard, 4 July 1986)

HC Deb 04 July 1986 vol 100 cc1321-9 1321

§ Lords amendment: No. 11, in page 4, line 15, leave out "On any occasion when" and insert Where—

(a) on any assessment carried out by them in pursuance of any provision of this Act, or
(b) on any other occasion,"

§ Mr. Tom Clarke
I beg to move, That this House cloth agree with the Lords in the said amendment.

§ Mr. Deputy Speaker
With this it will be convenient to take the following Lords amendments: No. 12, in page 4, line 26, leave out from "(1)" to "the" in line 29 and insert , or the period mentioned in that subsection has expired without any such representations being made, and the 1322 authority have reached a decision on the question referred to in that subsection (having taken into account any representations made as mentioned above) No. 13, in page 4, leave out lines 32 to 34 and insert—

"(a) either specifying—

(i) any needs of the disabled person which in the opinion of the authority call for the provision by them of any statutory services, and

(ii) in the case of each such need, the statutory services that they propose to provide to meet that need,

or stating that, in their opinion, the disabled person has no needs calling for the provision by them of any such services; and

(b) giving an explanation of their decision; and

(c) containing particulars of the right of the disabled person or his authorised representative to make representations with respect to the statement under subsection (4)."

No. 14, in page 4, line 40, leave out from "services" to end of line 43.
No. 15, in page 5, line 2, leave out from "matter" to "that" in line 3 and insert included in the statement supplied under subsection (2)". No. 16, in page 5, line 6, leave out "further".
No. 17, in page 4, line 6, leave out the particular need in question and insert "that matter".
No. 18, in page 5, leave out lines 9 to 11 and insert— (a) consider (or, as the case may bc, reconsider) whether any, and (if so) what, statutory services should be provided by them for the disabled person to meet any need identified in the representations; and". No. 19, in page 5, line 15, after "Where" insert "(a)".
No. 20, in page 5, line 17, after "writing" insert (or in each of those ways)". No. 21, in page 5, line 18, after "incapacity," insert "or (b) both of those persons are in that position (whether by reason of the same incapacity or not,". No. 22, in page 5, line 25, at end insert— (6A) In determining whether they are required to provide any services under subsection (6) to meet any need of the disabled person or his authorised representative and (if so) what those services should be, the local authority shall have regard to any views expressed by either of those persons as to the necessity for any such services or (as appropriate) to any views so expressed as to the services which should be so provided.". No. 23, in page 5, line 28, leave out from "both," to end of line 39.
No. 24, after Clause 2 insert the following new Clause—

§ Services under s. 2 of the 1970 Act: duty to consider needs of disabled person . When requested to do so by—

(a) a disabled person,
(b) his authorised representative, or
(c) any person who provides care for him in the circumstances mentioned in section 5,

a local authority shall decide whether the needs of the disabled person call for the provision by the authority of any services in accordance with section 2(1) of the 1970 Act (provision of welfare services).". No. 56, in clause 5, page 9, line 36, at end insert— (2) Where that other person is unable to communicate, or (as the case may be) be communicated with, orally or in writing (or in each of those ways) by reason of any mental or physical incapacity, the local authority shall provide such services as, in their opinion, are necessary to ensure that any such incapacity does not prevent the authority from being properly informed as to the ability of that person to continue to provide care as mentioned in subsection (1). (3) Section 2(6A) shall apply for the purposes of subsection (2) above as it applies for the purposes of section 1323 2(6), but as if any reference to the disabled person or his authorised representative were a reference to the person mentioned in subsection (2).". Lords amendments Nos. 13, 18 and 24 involve privilege.

§ Mr. Clarke
We are now considering a group of amendments to the clauses which are concerned with local authority assessments in general, and in particular those under section 2 of the Chronically Sick and Disabled Persons Act 1970. My right hon. Friend the Member for Manchester, Wythenshawe (Mr. Morris) is rightly remembered for his immense contribution in piloting that measure through the House.
Clause 2 was introduced by the Government on Report, and it is fair to say that its substance was widely welcomed when canvassed in the consultation document. On reflection, however, the drafting was seen to be unnecessarily restrictive and would probably have caused more problems for local authorities if there were arguments as to whether a disabled person was entitled to a review.
Broadly speaking, amendments Nos. 11 to 18 ensure that a disabled person or his representative may receive a written statement if they request it after any assessment and may ask for a review of any decision in any circumstances. I shall refer only explicitly to the substantive amendments. Amendment No. 12 gives a right to a written statement even if there had been no representations by a disabled person or his representative before the assessment.
Amendment No. 13 requires the statement to specify the needs of the disabled person as well as the services to be provided to meet them. This may seem a minor clarification but it will prove useful if there is a dispute as to how the needs should be met — for example the common choice between a stairlift or downstairs adaptations on which there is often disagreement between disabled people and the social services. In combination with amendments Nos. 14 and 18, it provides the right of review on anything in the statement.
Amendments Nos. 19 to 23 clarify the right of either a disabled person or his representative to assistance if either or both have a communication handicap. Amendment No. 56 to clause 5 extends this right to communication assistance to carers during a local authority assessment of the disabled person. New subsection (6A), introduced by amendment No. 22, attempts to meet some of the concern expressed principally by the British Deaf Association. In determining both the need for communication assistance and the nature of that assistance the local authority must have regard to the views expressed by the disabled person or his representative, who are, of course, uniquely qualified to identify what is required.
During the passage of the Bill through both Houses there has been some confusion over the right to ask for an assessment for services under the Chronically Sick and Disabled Persons Act 1970, in particular in relation to the carers' clause, where many right hon. and hon. Members believed that it was essential for carers to have the independent right to ask for an assessment of the person for whom they were caring. The purpose of this was to prevent their own possible breakdown and enable the 1324 social services to fill the gaps so that the disabled person could continue living in his own home on the basis of genuine shared care.
To be frank, I never really understood Ministers' objections to the original carers' clause, and I said so at the time; but, being a reasonable person, despite the acid comments which I might make from time to time, I accepted the half loaf that the Government offered on Report and rested content with three and a half of the four key points I was asking the House to accept then. During discussions since then, however, the Department agreed to introduce the new clause after clause 2. Happily it is one of the most comprehensible clauses in the Bill and puts beyond doubt the duty of a local authority to assess the need of a disabled person for any of the services listed in section 2 of the Chronically Sick and Disabled Persons Act 1970 on request of the disabled person, his or her authorised representative or the carer as defined in clause 5.
Apart from the carers' issue a problem has arisen, certainly for lay people and even for some lawyers, from the complex drafting of section 2 of the 1970 Act. Although the best legal advice and, indeed, the departmental circular issued in August 1970, has always maintained that a local authority has a duty to make an assessment, this is not stated clearly in that section, and as recently as February 1986 a disabled person received a letter from a chief executive's department which flatly denied that the duty existed.
Baroness Masham quoted at length from this letter when moving this new clause in another place, and I shall not repeat it here. I shall only restate my thanks to Ministers for responding to the concern expressed. I can now claim to have at least three and three quarters of what I was seeking on Report—and even a bit more.
However, there are still some fears, among disabled people that clause 5 could be misinterpreted and encourage local authorities to look to residential care as a solution rather than to provide the domiciliary help specified in the 1970 Act. I hope that the Minister will give an assurance that his Department's circular will be explicit on this point, and state unreservedly that the purpose of the Act is to enable disabled people to remain living in their own homes as long as they wish to do so.
Finally, on implementation, the new clause should come into force immediately as it is simply a confirmation of the existing law. There should be no difficulties. Not to do so might increase the confusion as some people might think assessments were not necessary until it was in force. I also hope that clauses 2 and 5 could come into force next April, as there is nothing totally new involved. Many local authorities, all of which have been widely consulted, will have to make only minimal adaptations to their procedures, although some will obviously have to take their responsibilities under the existing law more seriously and thereby incur greater expense.

§ Mr. Mikardo
I am bound to say, with all the charity that I can muster, that amendment No. 11 is nonsensical. It replaces one definition with another that says exactly the same thing, but takes much longer to say it. We can always be sure that when departmental lawyers start to draft amendments they will ensure that the revised wording is a good deal longer than the wording that went before, even if it says the same thing.
1325 In this case, four words are replaced by 23. Let me paraphrase what the two versions say. The first says, "on any occasion". The second one says, "on any particular occasion or any other occasion." Can anybody tell me, in terms of the well of English, pure and undefiled, what difference there is between those phrases? I can find no difference,. What would be the difference between a ticket from London Transport that said, "This ticket entitles you to travel to any station on the system", and one that said, "This ticket entitles you to travel to Piccadily Circus or any other station on the system."? What would be the difference between my referring to every hon. Member and referring to the hon. Member for Bow and Poplar and any other hon. Member? This is just a piece of normal, legalistic verbal diarrhoea that comes from the recesses of departmental meetings.
Amendment No. 14 is the only one of their Lordships' amendments with which I disagree, but because I do not wish to waste any time I shall not press my strong disagreement to a Division. The amendment takes away the obligation, when a disabled person has authorised representations that have been turned down, for information that he has the right to make further representations to be given to him. I cannot see any justification for that. It is contrary to all our traditions.
12.15 pm
I can take a parallel from the Minister's Department. If an insurance officer rejects a claim, the notification of the rejection of the claim is accompanied by a notification that the claimant is allowed to appeal against that rejection. In some cases, for example in applications for immigration or entry certificates under the immigration rules, the rejections of representations have the notification that an individual is allowed to make representations to another authority.
Do we not want handicapped people to exercise their rights? What is the good of giving them rights if we do not facilitate the exercise of those rights? We must remember that we are talking about people who are badly handicapped. In the nature of things, many handicapped people and their representatives will not know, when their application is turned down, that they have a right to come back. Why should we not tell them? This is an infringement of civil liberties. If we had been in other circumstances than midday on Friday, I should have wanted to divide the House against the amendment.
As in the previous group of amendments, if this group is implemented, it will involve some expenditure, perhaps more than that occasioned under the previous group. When dealing with that group, the Minister said —doubtless he will say the same thing on this group when pressed — that he could give no guarantees about implementation. It is a little hollow for him to congratulate my hon. Friend the Member for Monklands, West (Mr. Clarke) on all the work that he has done and his achievement in getting the Bill so far if he will not provide the wherewithal for the Bill to be effective. My hon. Friend cannot provide the wherewithal. It must come from public funds. Although local authorities are involved, we know that with the inextricable weaving of local and national finances, the extent to which the Bill will be implemented, if at all, depends on the extent to which the Minister can chisel a bit more money out of one who is probably the most uncaring Chancellor of the Exchequer this century.
1326 Unless the Minister is prepared to have a bash at the Chancellor, his congratulations to my hon. Friend are hollow. It is only my charitable nature that prevents me from using a more perjorative word than that. I urge the Minister to try to put money from the Chancellor where his mouth is.

§ Mr. Alfred Morris
I intervene to support what my hon. Friend the Member for Monklands, West (Mr. Clarke) said about implementation of clauses 2 and 5 and to endorse his submission that the clauses could and should come into force at the beginning of the next financial year, in April 1987. We are at the beginning of the Public Expenditure Survey Committee annual round. There is thus plenty of time for additional money needed by local authorities to be built into the rate support grant. Will the Minister be pressing for that to happen? In the words of my hon. Friend the Member for Bow and Poplar (Mr. Mikardo), will he be tryng his best to influence the Treasury fully to implement the Bill at the earliest possible date?
There are some who feel that the local authority associations have been "bidding" up the costs of clause 2 for wholly understandable reasons. They see a close parallel with the Government's volte face over the invalid care allowance. As soon as the Government were forced by the European Court to extend the benefit to married women, the cost of doing so fell both inexplicably and dramatically.
I am convinced that once the Bill becomes an Act and the local authorities and the Department of Health and Social Security start serious negotiations, within the scope of next year's social services expenditure, the hon. Gentleman will end up with an estimate of its cost which he will be able to persuade his colleagues is both acceptable and excellent value for money. Certainly it would be far better value for money than most of the substantial amounts that his Department currently pays out in board-and-lodging payments to rather dubious private homes.
The Government have cut social security spending by £11.1 billion, while giving £4.4 billion in tax cuts to those earning more than £30,000 a year. When they came to power, the Government promised to "single out" disabled people for special help. Yet all of us, on both sides of the House, know from our mail bags and from our meetings with disabled people that many of them complain today of being "singled out" for special hardship.
My hon. Friend the Member for Monklands, West referred to new subsection (7), which meets some of the concern that has been expressed by the British Deaf Association. In determining both the need for communication assistance and the nature of that assistance, the local authority must have regard to the views expressed by the disabled person or his or her representative. I am extremely glad that there has been some, even if still an inadequate, response to the very important representations made to all hon. Members by the British Deaf Association.
I turn to clause 4, which is about services under section 2 of the Chronically Sick and Disabled Persons Act 1970. This clause, inserted in the other place, confirms the right of a disabled person to an assessment of his need for any of the services listed in section 2 of the Chronically Sick and Disabled Persons Act.

1327

§ Mr. Deputy Speaker
Order. The right hon. Gentleman is now anticipating matters that are set down for debate later on. He will note that amendments Nos. 34, 35 and so on deal with clause 4, but we have not yet reached them.

§ Mr. Morris
I am very grateful to you, Mr. Deputy Speaker. My purpose was to respond to the point made by my hon. Friend the Member for Monklands, West, who told the House of a letter that was written to a disabled person by a chief executive, in which he said that there was no duty to assess. My hon. Friend was right to emphasise his deep concern about that letter. There is a duty to assess, and clause 4 puts the matter beyond doubt. It also confirms the right of a carer to ask for an assessment of a disabled person for whom he is caring, which goes some way towards restoring the essence of the original clause 5, which the Government insisted upon deleting on Report in this House.
I hope that the Minister will respond to the point made by my hon. Friend and that he will return to the vital questions of implementation and resources.

§ Mr. Newton
The hon. Member for Monklands, West (Mr. Clarke) has very clearly and helpfully set out the purpose of the various provisions that we are discussing and I shall not attempt to go over the same ground. As he made clear, a written statement can now be requested, whether or not the disabled person made representations before the assessment was made, and subsequent representations can now be made if the local authority has indicated that it is prepared to meet some but not all of the needs which the disabled person himself or herself has identified.
I shall take note of what the hon. Member for Bow and Poplar (Mr. Mikardo) said in one of his engaging and frequent interventions during our proceedings this morning about amendment No. 14. However, if he studies the affects of amendments Nos. 11 to 18 he will see that representation rights, far from being reduced, as he half implied in his remarks, have been extended by the work that has been undertaken in another place in the cooperative spirit that has pervaded most of our proceedings. I am sure that every right hon. and hon. Member will welcome that.
I welcome in particular the amendment that, as has been acknowledged, has been made largely in response to representations by the British Deaf Association not least because, as the Scottish or near-Scottish hon. Member who is present in the Chamber will be interested to hear. The hon. Member for Orkney and Shetland (Mr. Wallace) recently made a substantial expedition to Rothesay on the Isle of Bute for two hours on one morning to address the triennial congress of the British Deaf Association. I am well aware of the importance that it attaches to some of these provisions and to improving the rights of disabled people generally. It is good that we have been able to respond to its interests and representations. That provision requires local authorities, when considering whether interpretation services are required, to have regard to the views of the disabled person on the need for such services and, if considered appropriate, what they should be.
I apologise for having commented in the absence of the hon. Member for Bow and Poplar on his first point, but the other point that he raised with me related to the reason for the drafting of amendment No. 11 in that particular way. I have been advised to say that—

1328

§ Mr. Mikardo
The hon. Gentleman does not believe it, does he?

§ Mr. Newton
I do not think that I am qualified to comment on the draftsman's choice of words. What is apparent, though, is that neither I nor my officials have the faintest notion of why the draftsman chose to draft the amendment in that way. I shall not, therefore, attempt to go further, other than to say that, so far as I can see, it does not damage anyone's interests. It may improve the interests of lawyers by making the legislation slightly more complex than otherwise it would have been. I shall draw the attention of the draftsman to the hon. Gentleman's observations. May I pay a small, informal tribute to the hon. Member for Bow and Poplar for the remarkable skill with which he focuses his mind on some of these points, at what I take to be reasonably short notice, and then comes out with some remarkably good points.
On the implementation of clause 2, as the hon. Member for Bow and Poplar expected, I have to repeat what I said about clause 1. There will be substantial resource costs for local authorities. I resist the suggestion that the Government's approach is in any sense hollow. I hope that I carry those Opposition Members who are concerned with the Bill with me on the proposition that, throughout, the Government have made it clear that their co-operation with the Bill necessarily rested on the need for commencement orders which the Government would have to consider in the light of when resources could be made available. There has been no deception or disingenuousness about that approach throughout the Bill. The Government have proceeded on that basis.
The right hon. Member for Manchester Wythenshawe (Mr. Morris) referred to the basis on which local authorities made their estimates. Whatever else may lie between us, we clearly need to have a fairly good estimate of the likely costs before deciding when to make commencement orders. I shall not speculate whether the right hon. Gentleman is right in his virtually explicit suggestion that local authorities have exaggerated the costs of the clause. However, it would be helpful to refine those estimates and reach ones that he would be prepared to accept as more realistic and we regard as reliable. We must have a reasonably reliable estimate before we can decide whether to bring the clause into effect.
I hope that I made it clear earlier that I shall, with best endeavour, attempt to ensure that we reach that stage as soon as possible. The right hon. Gentleman cannot seriously expect me to discuss the nature of any exchanges within central Government that might underlie that process.
I am pleased to say that I can be more forthcoming about the new clause. It puts beyond doubt that local authorities have a duty to consider the need of the disabled for services under section 2 of the Chronically Sick and Disabled Persons Act, if so requested by the disabled person, his representative or his carer. Some concern has been expressed that the current law is not entirely unambiguous. We were pleased to co-operate with the Bill's sponsors in drafting the new clause to put the matter beyond doubt. We intend to bring the provision into effect at the earliest convenient opportunity. I understand that local authorities may, unless there is good reason, find it convenient for those parts of the Bill that can be 1329 implemented soon to be brought into effect together at the beginning of the next financial year. We shall aim at a date of 1 April, 1987, which is what the sponsors want.
Clause 5, which relates to carers, was discussed at length on Report. I undertook to consider whether its intention could be clarified by changes in the drafting. After careful consideration we decided that the suggested changes would substantially widen the effects of the clause. I understand that the Bill's sponsors accept that the wording should remain substantially unchanged. However, I note the helpful comment of the hon. Member for Monklands, West, who said that he thought that he was getting three and three quarters out of the five that he wanted.
Following the commitment given by my right hon. Friend on Report, an amendment has been tabled to ensure that interpretation services are provided if carers are unable to communicate because of disability and the local authority needs to communicate with them to determine whether they can continue to provide care. I hope that it will be possible to implement that clause not later than April 1987, in line with the sponsors' request.
The hon. Member for Monklands, West asked about clarifying the general purpose of clause 5. The aim is not to encourage residential care, but to help people who so wish to stay in their own homes, if that is the best solution to their problems. I emphasise that the overall objective of this clause, together with all provisions relating to services for the disabled, is to ensure that we find the best answer to the problems of the individual. Although we all accept that more often than at present people should stay in their own homes, that cannot always be the case. The Bill cannot eliminate the need for residential care, and I am sure that the hon. Gentleman was not implying that the disabled should be kept in their own homes regardless of considerations that might mean that they should be in residential care. The general thrust is to improve the opportunities and services for people to stay in their own homes if that is what they want, so there is no difference of opinion between us on that.
The right hon. Member for Wythenshawe strayed into the somewhat more contentious area of alleged cuts in social security and the position of the disabled. I simply do not accept what he said, but I shall not spend much time on that argument. Far from there having been cuts, the social security budget has risen substantially in real terms, as has the overall value of benefits paid to the disabled for a variety of reasons, including the increased numbers of disabled people receiving benefits, the real value of which have increased. The Government have made a number of significant improvements, not least in the real value of mobility allowance, by removing the invalidity trap that affected many people on supplementary benefits, by introducing the severe disablement allowance and by extending the invalid care allowance. Therefore, although I do not wish to turn the debate into an argument about Government policy, I felt that I had to explain why I simply could not accept what the right hon. Gentleman said.
I welcome and endorse the Lords amendments and hope that the House will approve them.

§ Question put and agreed to.

§ Subsequent Lords amendments agreed to. [Some with Special Entry.]