HC Deb 10 June 1996 vol 279 cc52-83 5.45 pm
Mr. Bowis

I beg to move amendment No. 11, in page 1, line 9, after 'services,' insert 'and

  • (b) the person is of a description which is specified for the purposes of this subsection by regulations made by the Secretary of State,'.

Madam Deputy Speaker

With this, it will be convenient to discuss also Government amendment No. 12.

Mr. Bowis

As we have heard today and on many occasions in the past both inside and outside the House, the Bill has overwhelming support in the country. The Labour party was of course initially hostile, as we saw during the debate on the Queen's Speech, but I think that Labour came to see the great potential benefits for disabled people—not least having spoken to representatives of the disability lobbies—and so, happily, it has been able to support the Government's measure. I very much welcome that.

Mr. Tom Clarke (Monklands, West)

We seem to have witnessed a change of personality by the Minister within a few minutes. On what basis does he claim that Labour opposed direct payments during the debate on the Queen's Speech? There is not a shred of evidence to support that.

Mr. Bowis

If the hon. Gentleman reads the Hansard report of the Queen's Speech debate, he will find that some of his hon. Friends put forward—

Mr. Clarke

Who? The leader of the Labour party supported the idea.

Mr. Bowis

No, not the leader of the Labour party. If the hon. Gentleman looks at the Hansard report, he will find that some of his hon. Friends cast aspersions on the principles—largely because they were worried that they might be some form of privatisation. I am seeking to embrace the hon. Gentleman in support of the measure, and I acknowledge that he now gives 100 per cent. support to the Bill.

The Bill comes from a long campaign by individuals and groups who wanted the independence and the flexibility to manage their disability and their working lives so that they could more easily hold down a job or voluntary work, so that they could more easily bring up a family—as I saw the other day—and so that they could have more dignity in their relationship with the people who provided care services for them. That was reflected in what the hon. Member for Nottingham, East (Mr. Heppell) said.

My noble Friend Lord Macoll pioneered legislation that was picked up and developed by my hon. Friend the Member for Mid-Kent (Mr. Rowe)—

Mr. Alfred Morris

On a point of order, Madam Deputy Speaker. My concern about the Minister's speech arises from a suspicion that he may have picked up the one prepared for him by his officials for Third Reading, rather than the one for the amendment. We have limited time, but is that what has happened?

Madam Deputy Speaker

That cannot possibly be a matter for the Chair.

Mr. Bowis

I am grateful, Madam Speaker. If the right hon. Member for Manchester, Wythenshawe (Mr. Morris) listens, he will discover where my argument is leading. I am sure that he would join me in paying tribute to my hon. Friend the Member for Mid-Kent and the other parents of the Bill, including my right hon. Friend the Member for Chelsea (Sir N. Scott) and my hon. Friend the Member for Bolton, North-East (Mr. Thurnham).

Another stalwart advocate of the Bill was my erstwhile hon. Friend the Member for Stratford-on-Avon (Mr. Howarth), who urged us to bring this in on a limited basis so that it could be seen to work and so that it would reassure those who were genuinely concerned about the potential costs and about numbers of applicants. Although he believed at that stage that there should be a tight definition of disability to limit eligibility, we have gone much further than that. Nevertheless, I agreed with him then, as I do now, that the pace of implementation is important.

We suggested that there should be waves of implementation, as have been used successfully when introducing other health and welfare reforms. It is because the idea at first came from disabled people of working age that we thought it right that they should go first. We did, however, listen carefully to the people who had contributed to our consultation exercise—including hon. Members from all parties—and decided as a result to expand this first wave to include learning as well as physically disabled people.

It was, and is, our clear intention that this was to be the first wave and that other waves would follow. Indeed, I am able to confirm that, at the end of the first year of the operation of the scheme, we shall review it with a view to extending it to people over 65. This would, as is only sensible, be subject to there not having been serious problems apparent in the first year of operation that demanded a refining or revision of the scheme in some way. I hope that that puts at rest the concerns that I know have been genuinely felt by colleagues in the House and by some people outside that the Bill in some way excludes older people for all time.

Mr. Alan Howarth

I am grateful to the Minister for what he has just said, but although there is a strong practical case for phasing and taking such an enormously important and beneficial change at a manageable pace, why does he insist on arrogating to himself and to the Government the power to determine the rate of that change? Why should it not be for local authorities to determine the process and the timing of the introduction of the scheme? Would it not be far better to assess the eligibility to receive direct payments in terms of individual need rather than of broad and inevitably crude categories of claimants? To do so on that basis is inevitably discriminatory.

Mr. Bowis

As the hon. Gentleman acknowledged, initially he wanted to limit the scheme to a narrow category and we are seeking to go further—I shall return to his point about local government. However, I certainly do not want to arrogate anything to myself or to my right hon. Friend the Secretary of State—good as arrogation to him would prove to be. I want to arrogate the power to Parliament. Under the Bill, it is a matter for the Secretary of State to bring to Parliament the phasing of those waves of implementation. That is sensible.

Mr. Kirkwood

The Minister said that he would consider extending the scheme to the elderly after the first year. Will he go further and consider establishing some pilot projects to extend the measure to the elderly during that first year? That would demonstrate his good faith and show that he had in mind extending the measure in due course.

Mr. Bowis

I do not intend to put that on the face of the Bill, but there is nothing to stop pilots—as the hon. Gentleman would describe them—being established under existing and voluntary schemes, as that might help to inform the pattern of activity. We shall be interested in how the implementation takes place, and, once local authorities become responsible for the schemes, whether they are able to set them up effectively and manage the demand, the procedures and the monitoring in such a way as I desperately want, so that the measure works and gains public respect and support and does not collapse in recriminations.

Mr. Tom Clarke

We are at the heart of the legislation and we want to be clear as to the Government's position. If the Government happen to be in office in 12 months' time, will they review the position, or is the Minister telling us today that they will remove the exclusions in 12 months' time?

Mr. Bowis

No. I have tried to make it clear that when the scheme has been operating for a year, we shall be able to assess—not with any great bureaucratic procedures, but in a fairly simple, straightforward way—how well it has worked in the first year. As I said, we shall do that with a view to extending the scheme, provided that no substantial problems have been identified leading to its refinement, review and reform.

Mr. Clarke

I am genuinely grateful to the Minister for giving way again, but we want to be absolutely clear. What evidence of information does he think that there will be in a year's time—if his party happens to be in Government—that we do not have now?

Mr. Bowis

We shall have, in Government, evidence of a year's operation of the direct payments scheme. I shall return to the hon. Gentleman's point, but I want to deal with some serious issues. I hope that he will take the matter seriously as it is important to look carefully at how the scheme is operated. We share the same objective. We all want to make it possible for everyone who is eligible to benefit, but I want to make sure that we have a system in place that is operating effectively.

Mr. Roger Berry (Kingswood)

Will the Minister give way?

Mr. Bowis

I shall make some progress and then of course I shall give way.

I wish to dismiss one piece of nonsense that has crept into some of the public discussion of the matter. Much has been said about discrimination. I want to underline absolutely and clearly that the measure does not discriminate against older people, any more than it discriminates in favour of disabled and learning disabled people. It is simply an operational matter of who is in the first wave and who is in the second and any subsequent waves. Everyone to whom I have spoken—I have heard it again today—agrees that implementation must be phased.

In answer to the hon. Member for Stratford—on—Avon, social service departments made it clear that they wanted phasing and a clear two to one majority of those who wanted phasing wanted the Government and Parliament to set the phases. The lobbies and groups wanted phasing, but I have to say—I have spoken to many of them—that they are not of one mind as to how it should be done. Some wanted phasing by numbers—rationing on the basis of first come, first served—others wanted phasing by level of costs, others wanted geographical pilots and others thought that the whole onus should be placed on the shoulders of local authorities to decide their own phasing policy.

Since our debates in Committee, I have re-examined all the options. I have met a range of people with experience in these matters and I have visited and talked to the members of one of the best existing schemes in Kingston upon Thames. Each of the alternatives to the one that we have proposed results in difficulties, anomalies and unfairnesses. I have pointed out that social services at operational level wants Parliament to set the phasing. Phasing by numbers would mean that two people with equal needs and equal abilities to manage a direct payments package would be dealt with differently. That could lead only to resentment and possibly even to judicial review.

Rationing by cost would seem to be both unfair and a perverse incentive to increase the cost of a package in order to qualify. I also have the words of my hon. Friend the Member for Brighton, Kemptown (Sir A. Bowden)—what I call the "Kemptown warning"—ringing in my ears. On Second Reading, he rightly and fairly pointed out that once local authorities had the discretion to introduce a scheme, local pressure groups would be unremitting in their determination to see them do so. My great fear is that, without an effective phasing mechanism, authorities with no experience of any scheme whatsoever would either decline to start one, or would try to do everything at once and make a hash of it, perhaps with vulnerable people suffering.

Sir Andrew Bowden (Brighton, Kemptown)

My hon Friend mentioned what he calls the "Kemptown warning". I understand when he is saying about phasing. If he were to give the House a specific timetable—based on exact dates—as to when the scheme would come into operation, phased, I would find that quite acceptable. I am in a difficult position as I know that my hon. Friend is saying with total good faith that he wants to review, consider and examine the position at a particular time without making a firm specific commitment. However, will he look again at phasing and say over what period of time—specifying the length of that time and exactly how it would come in—he plans to phase in the scheme, rather than just talking about reviewing and judging it?

Mr. Bowis

I am grateful to my hon. Friend. I have tried to explain that there will be a timetable. However, I cannot say exactly when the Bill will become an Act of Parliament or exactly how long it will take for the regulations and guidance to be agreed having taken into account the advice of the technical advisory group among others. I know that he understands that, but when the legislation has been in operation for one year, we shall take evidence from the experience of the social service departments that have been operating the scheme for a year and at that point we shall see whether it is possible—as we want—to move forward with the next wave so that people over 65 become eligible. My only criterion is that we must reserve the right to see whether any serious problems have emerged from the first year's experience which would lead to the scheme needing to be reviewed and perhaps refined and reformed in some way.

I hope that that helps my hon. Friend to understand that we have a timetable in mind. We have good faith in what we are seeking to do. In fact, we are all seeking to achieve the same things. I believe that we can get there with a little patience, bearing in mind the fact that we must have phasing to enable those local authorities that want it to get their schemes up and running efficiently and effectively.

6 pm

Mr. Tom Clarke

I am extremely grateful to the Minister for giving way once again, but, as he has said, this is the kernel of our discussions. The Government were originally far from keen and sought to exclude people with learning difficulties from the Bill. They eventually changed their mind without a 12-month trial, so why is that not possible for disabled people beyond the age of 65?

Mr. Bowis

It is not true that we were opposed to including people with learning disability. In consultation, we put forward an option that we should include them, but they were not in the first proposition, which came from people of working age who were physically disabled. All the pressure came from that quarter so we said, "Fair enough. We will start with you." As a result of that comparatively small add-on of, potentially, 4,000 people or families, we felt able to include those with physical and learning disabilities in the first wave. That 4,000 is quite different from the potential 700,000 people or families should we take the proposal a stage further.

Mr. Alfred Morris

The Minister spoke of his consultation with the voluntary organisations. How many of them wanted the exclusion of people over the age of retirement?

Mr. Bowis

It is interesting to note that many of the schemes now in operation originally excluded people over the age of retirement. Some lifted that exclusion once the scheme was up and running. We have learnt a lesson from those schemes.

Among the voluntary groups, everyone agrees that there should be phasing, but no single preferred route has been suggested as to how that should be done. It is perfectly fair to say to the right hon. Member for Wythenshawe that I accept that, in all honesty, those groups would prefer phasing not to be exercised on an age basis. Those voluntary organisations agreed that there should be phasing, however, and I asked them how to go about it. A lot of ideas were put forward, but no single, preferred option. I have mentioned some of those ideas that would cause too many anomalies and unfairnesses.

Mr. Heppell

I must take exception to the idea that everyone agrees with phasing. The Minister referred to the views of those at the sharp edge of social services. I have the comments of those at the sharp edge in my constituency, including the head of health and disability policy in the social services department of Nottinghamshire county council. That briefing does not talk about phasing, but states: This Bill is generally welcomed (although there are some reservations) because it puts an end to third-party involvement. It also expressed concern that the recommendation is likely to be piloted for people under 65 only … In Nottinghamshire, we currently fund 128 schemes where people wish to administer their own care support, of which 78"— well over half— are over 65. That briefing continues: In short"—

Madam Deputy Speaker

Order. This is becoming a long intervention. It would be better if the hon. Gentleman sought to catch my eye a little later.

Mr. Bowis

I am glad that the hon. Gentleman's authority welcomes the proposal. I believe that I noted two errors in what it perceives the measure to be when he read out the briefing paper. Should he refer to that document later, I am sure that we could discuss it in more detail.

Mr. Thurnham

The Minister has been extremely generous in giving way. He spoke about consulting local authorities that have had experience of running schemes. I am having some difficulty in understanding exactly what problems he has in mind, because I have a copy of the response from Avon social services. It makes it clear that it has not been swamped with requests and has, so far, just been contacted by 50 people who want to take advantage of the scheme. It feels that the Government are being "excessively cautious" and it states: To set an age limit of under 65 years is ageist and again over-cautious. In view of its experience, I am confused about exactly what are the problems that the Minister imagines exist somewhere out there. Avon is running the scheme now. It is not being swamped and it is not experiencing the problems envisaged by the Minister.

Mr. Bowis

I am grateful to my hon. Friend for that information. I hope that we are being responsibly cautious, but cautious only in the sense that we want to set a responsible pace for implementation. I know that my hon. Friend also wants that. I shall deal with my hon. Friend's specific point once I have made some progress.

We are discussing a sensitive matter, and it would not take many examples of people failing to cope with managing the money, being abused by a cowboy operator, or being taken advantage of by an unscrupulous neighbour for the tabloid presses to run and the news cameras to roll and for blame to be put on Parliament for letting that happen without due care and attention.

We have heard, of course, that we should be reassured by the fact that schemes have been around for 14 years. That is true, but in only one county—Hampshire. I am not aware of any others that have anything approaching that length of experience. Most of those of which we are aware have been set up only in the past few years, and most are, and have been, extremely small.

My officials visited Hampshire last summer and even there just 260 clients were using the scheme, compared to the total of more than 9,000 households receiving support from social services home care in that county. It is by far the largest scheme; most others have up to 50 clients—the one I saw the other day had 40—and many are making payments to just a handful of people. Some have an age limit. Other schemes, including that in Hampshire, have had one in the past but have now removed it. Whether there is no age limit, the majority of clients are, nevertheless, under 65.

I am not suggesting for one minute that there are not valuable lessons to be learned from those schemes, but we must not exaggerate their importance. My hon. Friend the Member for Bolton, North-East should note that the research by the Policy Studies Institute found 48 local authorities were operating some form of scheme; 34 which were not; and a further 46 that did not respond to that survey. Clearly, many local authorities have no experience on which to draw. Most authorities that have schemes are not administering the payments. The arrangements that they have made to comply with the current law may give them some experience that may be relevant when they come to make direct payments themselves, but I suspect even then that there will be lessons to learn. There are therefore good reasons for treading carefully but positively.

The new power to offer direct payments will apply to any community care service with the exception of permanent residential care. There is no lower or upper threshold for the value of services somebody must be assessed as needing before he can be considered for direct payments. No non-residential services are excluded. The power would be available throughout the United Kingdom. We estimate that the numbers in the first wave to be around 40,000. A subsequent wave, should it include all those over 65, would increase the numbers to around 700,000.

I appreciate, of course, that by no means all the people in either of those categories would be able to manage direct payments, or, indeed, wish to do so. Equally, there will be some people currently paying for their own direct services who might seek access to the schemes.

What we are proposing is that all disabled people under the age of 65 who are willing and able, with help if necessary, to manage direct payments should be eligible for them from the start: that is to say, all disabled people whether they have physical disabilities, sensory disabilities or learning disabilities or whether they are disabled by mental or other forms of illness, including HIV and AIDS or any combination of disabilities.

The numbers may turn out to be quite small, as forecast by many people, but I ask my hon. Friend the Member for Bolton, North-East to look carefully at the report of Policy Studies Institute, which concluded that current demand is restrained by lack of awareness and uncertainty about the legal status of payments schemes. The Bill will change both those factors. The report also found that two thirds of people in the study who were receiving services were unaware of the existence of a local payment scheme. When they were told that such a scheme existed, just over half expressed an interest in using it.

We cannot be certain therefore that demand will remain at current low levels once the Bill is implemented. I do not see that as a threat. I see it as an encouraging sign that the legislation will benefit a larger number of people than we may have supposed. I see it, however, as an overwhelming argument for treading steadily at a phased rate of implementation.

Finally, I refer to the amendment that was carried in Committee. It did not include over-65s and it removed the Secretary of State's discretion to authorise, with parliamentary approval, each wave of eligibility. The amendment also removed the Secretary of State's ability to exclude categories where there could be considerable risk if such people slipped through the net and were handed cash to manage their care arrangements. There are some people, including those who responded to the consultation paper, who would like us to exercise discretion—for example, for the categories of mental illness and supervision specified in our consultation paper and for the categories of drug and alcohol rehabilitation.

The nation would think that we had taken leave of our senses if we did not restore to the Secretary of State the right to exclude such people for their sake and for the sake of the wider community. I am pleased to see that the National Schizophrenia Fellowship supports that concept. For that reason, and because I genuinely believe that all hon. Members wish the measure to be a success, and because access can be guaranteed only by sensible phasing, I urge hon. Members to support the amendments.

Mr. Tom Clarke

All hon. Members will agree that when one sits through the Committee stage of an important Bill—which is then followed by Report and Third Reading—one gets to know one's colleagues fairly well. We have great respect for the Minister, and I hope that he does not feel that that respect has been diminished, as was suggested earlier. He has a lot of qualities, but being a historian is not one of them.

The Minister began his speech by saying that the Labour party was opposed to direct payments. I challenged him then, and I challenge him again, to produce a shred of evidence that suggests that the Labour party is opposed to direct payments. I shall give him some help in his research. When he wipes his brow after the debate tonight and heads to his Department, he should ask for Hansard of 17 November 1995. At column 300, he will see what I said when winding up the debate on health, disability and care in the community: The Secretary of State spoke about my right hon. Friend the Leader of the Opposition producing a mouse of a speech, which was particularly odd when considered in the light of the central issue of direct payments, which is, I understand, the flagship of the Government's care in the community policy. What we heard from the Secretary of State was a mere squeak—it was quite inadequate."—[Official Report, 17 November 1995; Vol. 267, c. 300.] Far from being opposed to direct payments, we were opposed to the dilution of the principle, and we are just as opposed to that today. The hon. Members for Brighton, Kemptown (Sir A. Bowden) and for Bolton, North-East (Mr. Thurnham), and others who thought that the Minister would move half an inch from his position in Committee, will be extremely disappointed. I am not surprised—the vibes that came across when the Treasury was mentioned earlier gave us an idea of what he would say.

We have come to the heart of the Bill. The Government's attempt to limit eligibility has been the great flaw in their approach to direct payments—that was my view during the debate on the Queen' s Speech, and it is my view today. It is a pity that that is the case, given the broad, all-party support for the principle of the Bill in the House and the enthusiastic support of disabled people and local councils. If Ministers had followed through the logic of local authority discretion and left the councils to decide who should receive direct payments instead of seeking to decide the matter by regulation, the Bill would have completed its passage through Parliament by now.

Ministers have had many opportunities to reconsider. The House of Lords considered amendments, supported by the Labour party and others, to remove the regulation-making powers which, at that stage, were extended so that they would exclude people with learning disabilities and those aged over 65—those about which we are concerned in this debate.

On Report in another place, the Labour party offered a compromise amendment to permit the Secretary of State to relax the limitations on eligibility when a local authority could demonstrate significant experience and expertise in direct payments. Such was the Government's determination to continue to exclude whole categories of disabled people that even that compromise position was rejected.

6.15 pm

The Labour party tried again in Committee, and I acknowledge that the Minister came a little way in our direction. He abandoned his intention to exclude those with learning disabilities—there was nothing about phasing and nothing about waiting for a year. He thought that those with mental health problems and those with a disability arising from HIV-AIDS would be eligible, but he refused to consider providing direct payments to any disabled person over the age of 65 who was willing and able to secure his own care. The Minister refused to consider that again today.

That was not good enough for the Committee, and it should not be good enough for the House today. The Committee carried two Labour amendments, which had the effect of removing the Government's power to exclude whole categories of disabled people throughout the United Kingdom. The amendments attracted much approval, as the Minister knows. Even before the second of those defeats—on provision for Scotland, on 18 April—we had learnt just how reluctant Ministers were to concede the principle that direct payments should be widely available to disabled people receiving community care.

Hon. Members expected the Standing Committee to conclude its business on 2 April, when the Scottish provisions should have been dealt with. Instead, we were treated to the rare and fascinating sight of Ministers filibustering on their own legislation—no doubt in the hope that they might reassemble a majority when the Committee resumed after the Easter recess. If that was their intention, they failed. When the Committee resumed, it duly passed Labour's amendment on Scotland in the same terms as the earlier decision for England, Wales and Northern Ireland.

Since then, we have witnessed further indecision and delay, which was confirmed by the Minister's response this afternoon. Ministers were quite uncertain as to when the Bill should be considered in this place. Hon. Members will know that Ministers seemed ready to reach this stage some weeks ago, but then delayed Report until after the Whitsun recess. We established the reasons for that this afternoon. It is a great shame, to say the least, that the date that the Government finally chose is one when not all hon. Members are free to attend and to vote on the amendment.

What is happening today in Northern Ireland is of great importance to everyone there and to every hon. Member, wherever his constituency may be. I know that a number of hon. Members from Northern Ireland are bitterly disappointed about the timing of today's debate—the Government have made their participation difficult, if not impossible. The organisations of disabled people in Northern Ireland share the unhappiness of Northern Ireland Members. What is true in Northern Ireland is true also in England, Scotland and Wales. Disabled people are extremely disappointed at the Government's failure to accept the wishes of the majority of hon. Members not once, but twice, in Committee.

Other concessions have been made: in response to Labour pressure, Ministers in the Lords promised to review the workings of direct payments after three years. In Committee, the Minister confirmed that, at the end of the first year after the legislation had been enacted and implemented, he intended to review the experience and to return to the House with conclusions. He said almost exactly the same today; there has not been a fraction of progress.

The promise to review direct payment schemes after 12 months was originally made before the Government's first defeat in Committee. The offer today is nothing new and does nothing to reduce the concerns of elderly people who would and do qualify for indirect payments that are currently provided to those who are assessed as being in need, who agree to accept them.

This is not a response to the Government's defeat. Since the concessions on people with learning disabilities and the promise of a 12-month review were rejected by the Committee as inadequate, the Government have not come up with anything else. What mystifies many Opposition Members, many outside the House and, I suspect, many Conservative Members, is why Ministers are prepared to do no more than promise to think about things after the general election. If there was ever a promise from a dying Government, this is it. How much better it would have been if Ministers had been prepared to concede the point and to leave it to local authorities to make payments to any disabled people whom they assessed as willing and able to manage their own care.

Mr. Rowe

Has it occurred to the hon. Gentleman that the reason for the promise is that my hon. Friend the Minister expects to return as Secretary of State after the election?

Mr. Clarke

If the hon. Gentleman, of all people, believes that, he will be as disappointed as I suspect the six and a half million disabled people, particularly pensioners over the age of 65, are today.

The promise of a review after 12 months would carry a little more weight than, for example, the three years that was spoken of in another place, if it was accompanied by a guarantee that the bar on older disabled people would be removed at that time, but there is no need for a 12-month delay. In his consultations, the Minister must have been convinced of that point; all the evidence that we have received suggests that.

I do not often like to refer to my previous speeches as I assume that I have made the point sufficiently in the Chamber, but I should remind the Minister of a speech that I made in 1995, when I said: I hope that we are not about to consider a measure that will introduce a new form of discrimination between one group of disabled people and another."—[Official Report, 17 November 1995; Vol. 267, c. 304.] That is precisely what the Minister is commending to us today.

Ministers seem not to have understood that only a minority of disabled people are willing and able to take up direct payments. There will be no overwhelming rush of applicants when the schemes are introduced, any more than there is an overwhelming demand on indirect payment schemes currently run by many local councils that encouraged this legislation. The experience, the knowledge and the information already exist, although the Government conceded that perhaps they did not exist in relation to those with learning disabilities. The Government have the benefit of the experience of indirect payments; they know that they work and they know that there will not be a demand that cannot be met, so why are they being so disagreeable?

Mr. Bowis

I hope that I am never disagreeable, but I have a question for the hon. Gentleman. He may be right about the potential expansion in demand, but I am sure that he takes seriously the Policy Studies Institute's report. Will he respond to its conclusions, which were as I spelt out? The institute was clearly concerned that there would be an expansion in demand and so implicitly supported the view, which everyone shares, that the policy should be phased in.

Mr. Clarke

I have great respect for the institute. The Minister must have looked for a very small needle in a very big haystack to produce that example.

Many disabled people have no interest in receiving cash payments in place of community care services. Whatever their worries about charging for such services, there are hundreds of thousands of disabled people who have no intention of switching away from the local council provision that they currently enjoy. The Government must know that, for many older disabled people, the attractions of managing their own care are less great than the security that they feel as consumers of services—something that we all understand. But that is no reason for all older disabled people to be excluded.

Just as many people under the age of 65 will wish to continue to receive local authority services, a minority of those over that age would like the greater choice and control that comes from organising their own care—but that is likely to be a small minority. Among the councils that provide cash payments indirectly are some that include older disabled people as part of their client group. Their experience shows that only a relatively small proportion of people in that age group take up the provision.

In Committee, the Minister spoke of the danger that the demand for direct payments could become, as he put it, "unmanageable", and he implied the same today. We are entitled to pause to look at what he meant and see whether his concerns have been met. The Minister rightly described the job of local councils in assessing the ability of individual applicants to manage direct payments as "a significant administrative responsibility". He said that it was necessary for the Treasury to have confidence that direct payment schemes were "in good hands" and that it should "feel comfortable" about them going forward. As we said in Committee, all those matters are, up to a point, fair comment, but none of them requires the Minister to put a complete block on older disabled people, including those who enjoy indirect payments, seeking access to direct payments.

I am sure that the Treasury recognises the potential of direct payments for giving disabled people greater control over their own care at no extra cost to public funds. Direct payments might also ultimately produce savings for the Exchequer, as well as greater value for money—if so, they will be all the more welcome.

Local authorities recognise the significant administrative responsibility that they face, not just in running direct payment schemes but, more immediately and importantly, in making the assessment of needs that forms the basis of such schemes and that they already undertake before providing community care services. As the Minister reported to the Committee, many councils will wish to proceed cautiously when introducing the schemes. But the Minister had to concede that only 22 per cent. of councils approved of the regulations that the Government intend to introduce.

The Association of Metropolitan Authorities told me only a few days ago that it had no concerns about the abolition of the Government's regulation-making powers and, indeed, welcomed it. It believes that local councils are well able to manage the introduction of direct payment schemes and that the Bill, as drafted, gives them the right degree of discretion in doing so. I unreservedly share that view, as do others.

The Disablement Income Group has argued that decisions about who should be eligible are best made locally rather than nationally. If any extra discretion is needed, it should be given to local councils. That proposition is different from the proposal that the Government have put forward today. Age Concern has told hon. Members on both sides of the House that the Bill should not be amended as the Government propose. It cites the experience of existing third-party schemes and says that older disabled people are just as capable as younger people of managing their care services and making a choice. The British Council of Organisations of Disabled People has contacted hon. Members to say that the Bill, as amended in Committee, is the right approach to direct payments. I know that hon. Members on both sides of the House will consider the views of those organisations, which work day in and day out on those issues, before voting on such an important amendment.

The Bill is about widening opportunities and choice for disabled people. That is why the Opposition have supported the principle behind the Bill from the beginning. The Bill, as it stands, will confer responsibility and discretion on local authorities, and we believe that that is right. It will set a test that applicants for payments should be willing and able to manage their care. That is a sufficient barrier against an unmanageable level of applications.

6.30 pm

If Ministers get their way today and return the Bill to its original form, it will include an unnecessary and undesirable element of discrimination against an important group of disabled people. That cannot be right. For all those reasons, I urge the House to reject the Government amendment, consistent with the Opposition's response in the Queen's Speech debate.

Sir Andrew Bowden

First, I wish to thank my hon. Friend the Minister for his courtesy and for the time that he gave me when we were discussing the amendment and the reasons behind it. My hon. Friend went to much trouble, and I appreciate that. He made a powerful and effective speech, but I still do not believe that the amendment is necessary. I shall not repeat the speech that I made on Second Reading, but a point of principle is at stake. Those now over 65—I must declare my interest as I am 66—

Mr. Rowe


Sir Andrew Bowden

I appreciate the compliments of the House.

Those who are over 65, who are able and willing and should have the right to be included, would be excluded by the Bill. Apart from the moral principle, why are the Government concerned? The Bill would not force local authorities to offer or make any direct payments, but it would give local authorities full discretionary powers. Are older disabled people different in some measurable way—apart from age—from younger disabled people or other adults receiving community care services? They are not. The answer must be no and no again.

My hon. Friend the Minister is on his weakest point on the subject of pilot schemes. The present pilot scheme, as I understand it, is confined to a tightly controlled group, but if my hon. Friend had widened the pilot scheme to include those over 65, the credibility of the arguments that he made tonight would be infinitely stronger. He could have included those over 65 in certain areas. Sadly, he has not done that.

I regret that I must tell my hon. Friend that his position is illogical and unfair and would be discriminatory in practice, although I know that he has told the House in all sincerity that it would not. I am sad, but I feel compelled to vote against the amendment. Even at this 11 th hour, I beg my hon. Friend not to mar what is basically a splendid Bill, for which the Government deserve praise and credit. It is still not too late.

Mr. Alfred Morris

It is a pleasure, as always, to follow my hon. Friend the Member for Monklands, West (Mr. Clarke) and again I pay warm tribute to his deep concern to improve the Bill for purposes the disability organisations want to see achieved. His commitment to the cause of extending choice and enhancing the independence of disabled people is much appreciated and applauded by all of us who know of his distinguished service to that cause ever since entering the House.

The depth of interest in the Bill among the organisations of and for disabled people is made clear in all the helpful briefings they have sent us in anticipation of the debate. Their concern, like my hon. Friend's and mine, is to quicken the pace of progress from paternalism to partnership in addressing the problems and needs of disabled people. They want Hobson's choice to be replaced by real choice and that applies to the elderly among disabled people as much as to those who are younger. All disabled people are entitled to the maximum possible control over their lives.

Notwithstanding the warnings given them from both sides of the House, the Government have remained hellbent on trying to limit direct payments under the Bill to disabled people below the age of 65. That is morally wrong. To exclude people from direct payments if they are over retirement age shouts of discrimination against elderly disabled people. It is all the more serious in this case because it is being attempted by a Government who say that they have now been converted to ending all discrimination against disabled people. Thus it calls into question all that they are saying to disabled people in relation to their Disability Discrimination Act 1995. The truth about the Government's stance in this debate is that discriminating against elderly disabled people by excluding them from direct payments will keep down costs. That is their priority of priorities. What they are attempting has nothing whatever to do with logic or fairness. It is wholly reminiscent of their four-year-long obstruction of my Civil Rights (Disabled Persons) Bill. Even after they were converted—kicking and screaming—to the necessity of legislating on discrimination against disabled people, they insisted on doing it on the cheap. That is what they are doing now, five years after first being pressed to legislate on direct payments.

Ideally direct payments should be payable to all disabled adults who are able and willing to manage them and without age limit. I believe that local authority staff with direct contact with individual disabled people are in the best position to decide who to include in the scheme. Under the terms of the Bill, a local authority is allowed to exclude from direct payments any individual provided it acts responsibly and reasonably in doing so. So why not let it act responsibly and reasonably in deciding who to include? For the Government not to let local authorities do so is clearly unjustified.

In his opening speech, the Minister left the impression that the Government intend to review his scheme in a year with a view to considering subsequent waves of eligibility. If that is so, is it not a powerful reason to keep the Technical Advisory Group going in order to help with that review process? Is that not the test by which what he said today must be judged? I ask the Minister to respond on this important point before the debate concludes.

I most warmly welcome what was achieved by all-party co-operation in Committee to improve the Bill and urge the House now to resist the Government's attempt to restore the measure to its original drafting. Not to do so would be to ignore the responsibility that every disability organisation in this country wants us to discharge this evening.

Mr. Thurnham

I support the excellent arguments advanced by my hon. Friend the Member for Brighton, Kemptown (Sir A. Bowden). It is a good Bill and the Minister deserves a great deal of credit for the way in which he has presented it and has appeared to listen to the arguments.

I am disappointed and surprised that the Government are attempting to reverse the Committee's changes to the Bill. I believe that the Bill is improved by allowing the over-65s to benefit from its excellent provisions. It is not logical to exclude that group—the Government seem to be afraid and are playing a numbers game. Local authorities must accept and face up to their responsibilities: they are the gatekeepers. I cannot understand why the Secretary of State believes that he must have additional responsibility to prevent local authorities from making the decisions that are rightly theirs and from exercising the discretion that the Bill confers. They could decide the pace at which they phase in the provisions.

The Conservative party complains that it cannot find candidates for local elections, but the Government do not allow local councils to exercise any responsibility. Here is an opportunity to allow local authorities to face up to their responsibilities and to act accordingly. If they get it wrong, they will get the blame. The Government will be unpopular if they persist in preventing 66-year-olds from benefiting from the excellent provisions.

The Minister asked me to remember the Policy Studies Institute report. It argued that people could derive excellent value from arranging their own care packages. It costs town halls on average more than £8 per hour to arrange for care, but people could make their own arrangements for only £4 per hour. These are excellent benefits that do not cost the Treasury a penny, so why do we exclude those aged over 65? There is no logic in that proposition.

The Minister said that great numbers of people could come forward to obtain benefit. But that is not the case at the moment. There is no indication that the Government would be swamped—in fact, I believe that the majority of pensioners would not wish to arrange their own care packages.

Sir John Hannam (Exeter)

Will my hon. Friend confirm that those aged over 65 will continue to receive the services at whatever cost to the local authority? Therefore, they will be denied the opportunity of saving money by purchasing services at a lower rate.

Mr. Thurnham

Local authorities are so inefficient that they are more likely to drag their feet than be swamped with applicants. Local authority overheads will be threatened by the measures in the Bill. Local authorities will be cautious about introducing the measures as they must make compensating reductions in their overheads. The hon. Member is right: there is no logic in excluding those who could benefit from the provisions.

Age Concern has argued strongly that local authorities have the discretion and that the transition will be slow—change will not take place overnight. It says that it has received few representations on the subject—only two out of 30,000 phone calls and letters that it has received in the past six months have referred to it. There is no suggestion that the floodgates will be opened and that local authorities will be swamped as a result of the new provisions.

The Government's amendment sends out the wrong signal to older people—it appears that they do not count. Older people were concerned about being excluded from the independent living 1993 fund—although they had been included before and had demonstrated that they could manage their own care packages and cope with their budgets without difficulty. I believe that only a minority of older people would want to do so. The Bill creates an anomaly by allowing some people to continue their existing schemes and by preventing others from coming forward.

The Government should at least give a firm commitment about the timetable. They seem to be concerned only with numbers. They changed the provisions to allow people with learning disabilities to be included as the numbers were small. However, they have excluded those aged over 65. The responses that the Government have placed in the Library send out a one-way message. I have referred already to the response from Avon county council. I have spoken to the Minister about the views of my local authority and I wrote to him to confirm those points. The director of social services in Bolton says that there is no reason why people over the age of 65 should be restricted from receiving benefit. If he thinks that he can cope with that pressure, why does the Secretary of State believe that he knows better? At the end of the day, the scheme will be administered by the local authorities.

In its response, the Association of District Councils says: There appears to be no justification for limiting eligibility on grounds of age". The Association of County Councils says that it is not appropriate to limit eligibility for a direct payment to those under the age of 65. The Association of Directors of Social Services wishes the introduction of direct payments to be "positive and enabling". It continues: The way forward is to agree to local determination of eligibility as well as local discretion regarding the introduction of Direct Payment schemes. The Association of Metropolitan Authorities says: Potential eligibility for direct payments should be drawn as widely as possible". Other organisations, such as Arthritis Care, are concerned that many of their members aged over 65 will be excluded.

I ask the Government to think again. They should allow local authorities to accept their responsibilities and not exclude people aged over 65 for no logical reason. The Government should have faith in the system and allow all people to enjoy the benefits of the Bill. Those benefits are being provided in a number of local authority areas—there is no need for any more pilots as they have been conducted for some years. The Government are being over-cautious. They should allow local authorities to accept the responsibilities that are rightly theirs and not press the amendment tonight.

6.45 pm
Mr. Kirkwood

It has been an interesting debate and the Minister has listened attentively to all the speeches. The hon. Member for Monklands, West (Mr. Clarke) sketched out concisely and lucidly the work that was done in the Standing Committee. I have examined that work and I believe that the Standing Committee discharged its duties admirably in canvassing all the aspects and perspectives of that important part of the Bill. The hon. Gentleman made that clear—certainly to my satisfaction, as one who did not serve on the Committee.

The right hon. Member for Manchester, Wythenshawe (Mr. Morris) has a peerless reputation as a defender of the interests of disabled people. The hon. Members for Brighton, Kemptown (Sir A. Bowden) and for Bolton, North-East (Mr. Thurnham) have good reputations in terms of discharging their duties and of being particularly jealous of the interests of people with disabilities and of the organisations that seek to serve them. They have persuaded me—if any persuasion were necessary—that the Government are wrongheaded about the matter.

The hon. Member for Bolton, North-East penetrated to the heart of the Government's position, which is very difficult to understand. He reviewed all the evidence and concluded that the Government are simply worried about numbers. The House of Commons has a duty to consider that point very carefully. If we create a precedent that legislative change should be determined on the basis of numbers and easy cut-off points, that fault line could be introduced into any social legislation. That is wholly inimical to the development of social legislation.

That is very worrying. It is not a minor point or an administrative, bureaucratic detail: it is an important principle that the House must address. If it does not do so this evening, it could have repercussions for future Governments of whatever political stripe—whether the Minister or the hon. Member for Monklands, West becomes Secretary of State. Should we accept the Minister's argument that, because many people aged over 65 will be affected, we should delay extending the provisions to them in order to ascertain whether there are any difficulties? That is an appalling prospect. The Minister is a sincere man, but to say that this does not involve an element of discrimination is absurd and unconvincing.

The House wants to make progress. This is an important part of the Bill. I want to ask the Minister a question and to make a suggestion. Clause 7(2), the commencement clause, states: This Act, except section 6"— which deals with Northern Ireland and properly so because there are different legislative arrangements for the Province— shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint". That is fine. There is then a semi-colon and the words: and different days may be so appointed for different purposes. Why cannot the Minister use clause 7(2) to deal with the question—which he seems to have in his mind, but which no one else has asked—about the prospect of chaos and confusion if too many people are admitted to the provisions of Bill, as he seemed to argue, if I understood his argument at all? Why cannot he use subsection (2) of the implementation and commencement clause to deal with that point? It is possible to admit an ordered admission of different waves, as he put it, of people to the benefit that is afforded by the Bill's provision. It may be a pedantic legal point—perhaps I am a pedantic lawyer—but the House deserves an answer why clause 7(2) cannot be a mechanism to deal with the point that is troubling the Minister.

The suggestion is this. Some technical rule or technical reason may come from behind the Minister and enlighten him in the rest of the debate, but I cannot for the life of me understand why he does not refer to the pilot point that was again made effectively by the hon. Member for Bolton, North-East and that I tried to raise in an intervention. If the Minister were to say at the end of this debate that he would specifically allow a series of targeted pilot projects that were properly looked after, reviewed and pump-primed, in financial terms, by the Department during the early stages of Bill, I would take a slightly different view.

That is very much a second best. In clause 7(2), the Government have the means of controlling potential worries on administration. If even that does not work, if the Minister said that he would give the House a guarantee that pilot projects for over-65s would be run in the first year, I would be willing to change my view of this matter. As things stand, however, the points made by the hon. Members for Bolton, North-East, for Monklands, West and for Kemptown and the right hon. Member for Wythenshawe persuade me that, as things stand, the Government have got this substantially wrong.

Mr. Rowe

The frank and open countenances of my right hon. and hon. Friends the Ministers conceal wounds and scars internally. They belong to an Administration who have seen expenditure on the family fund and on housing benefit rise exponentially and unpredicted. Whether they are right or wrong in logic, they are undoubtedly reflecting that wound in what they have brought to the House tonight. Their perception of the Bill is that, in some way that is not terribly easy to define precisely, it will run out of control unless they regulate it. They have found some local authorities with anxieties about their capacity to manage something that other local authorities manage perfectly well to reinforce them in that anxiety.

There is no logic in excluding people aged over 65, but I am wholly confident that this Bill's unstoppable logic will take over the moment that it becomes law. It will be demonstrated beyond peradventure that the number of people who want to take advantage of this undoubted right will be small, that the vast majority of local authorities are capable of managing the scheme in the way in which the pilot local authorities have already done, and that the quality of life of a large number of disabled people who take up this opportunity will be improved out of all recognition. It will become impossible for either the Government or local authorities to refuse the pressure that will instantly mount to include over-65s.

Mr. Thurnham

Does my hon. Friend imagine a position where a local authority, which by mistake—perhaps even by mistake on purpose—provides direct payments to someone aged over 65, being prosecuted by the Secretary of State for Health?

Mr. Rowe

Having inadvertently demonstrated the illegality of schemes that had been running satisfactorily for a while by asking the Secretary of State for Social Services at the time whether she should generalise particular legislation, I feel unwilling to answer that question. It will be shown not to have been necessary to limit the number of people eligible for this opportunity, but if the Government are that worried about it, there is little to be lost in allowing them their particular private fears. I am willing to support them in this matter.

The other matter is, in some respects, more important. As my hon. Friend the Minister pointed out, organisations such as the National Schizophrenia Fellowship may ask the Secretary of State to take back the discretion to exclude certain people from this opportunity because they are deeply anxious about some individuals making a complete mess of it and there is no powerful reason why that should not be done. For both those reasons, I am prepared to support the Government on the matter.

This opportunity has been a long time coming. It is a necessary and valued opportunity for disabled people to take. It is not an easy opportunity for them to take. As Jane Campbell, one of the unsung heroines of this campaign, has pointed out, the regulations and rules governing it and the knowledge that one has to have of employment law and other elements are considerable, so not many disabled people will, in my view, rush to take up the opportunity. However, for all the reasons that I have given, I am prepared to support the Government.

I hope that the review will be started the day that the Bill becomes an Act. I hope that my hon. Friend the Minister will assure me that there will not be a huge difference between a review where the reviewer is appointed 12 months after the Act becomes law, and a review in which the reviewer reports on information collected during those first 12 months.

Mr. Heppell

I congratulate the Minister on steering the Bill through the House in the way in which he has, except in one respect: his steering of Government amendment No. 11. The Bill's return to the Chamber has been delayed, it arrives on the day when many hon. Members from the minority parties are in another place, and the Government know, as I do, that all those people would have voted against the amendment. The Government may think that that is clever, but disabled people and groups that represent them will view it as cynical. I will ensure that they know how cynical it was.

People would have voted against the amendment because it is arbitrary, discriminatory and illogical. The Minister says that no discrimination is involved in preventing 65-year-olds from receiving direct payments, but what could be more discriminatory than that? What if people over 65 were not allowed to have operations in hospital, or could not consult their GPs without a 12-month delay? In this instance, however, we are not talking about even a 12-month delay; people are being told that their cases will be looked at again in 12 months' time.

7 pm

Earlier, I cited my authority's views. The Minister began by speaking of floodgates, but tonight he has spoken of waves. According to him, the waves will come in one after another. My authority certainly had no ideas about phasing or waves. I find it difficult to accept the concept of waves. The Minister may claim that he has succeeded where King Canute did not—that, following the first wave, the second may never come.

I urge the hon. Members for Bolton, North-East (Mr. Thurnham) and for Mid-Kent (Mr. Rowe), who spoke so well in Committee and made all the points that I would have made tonight if I had had time, to—as it were—put their money where their mouths are, and vote for what they spoke of then.

Mr. Bowis

I do not think that I will go down the "wave" route. If I remember rightly, Canute actually proved to his rather silly courtiers that the waves do go on coming; perhaps that is the lesson that we should learn. I am sorry that the hon. Member for Nottingham, East (Mr. Heppell) did not stop after his first sentence, which I liked: that would have summed up the debate nicely, following what was said by my hon. Friend the Member for Mid-Kent (Mr. Rowe). I commend my hon. Friend as very much the father of the legislation, and feel that we would do well to listen to him, acknowledging the concerns that exist and viewing the amendments as sensible.

I believe that the House is at one in seeking to improve the lot of people with disabilities, and introducing new flexibility, independence and dignity for those people, irrespective of their age when the measure is in place and can be introduced sensibly and effectively. The only issue on which we disagree is the pace of change.

I listened carefully to my hon. Friends the Members for Brighton, Kempton (Sir A. Bowden), for Bolton, North-East and for Exeter (Sir J. Hannam), as I always do. Similar issues have been raised by hon. Members on both sides of the House. There is an underlying worry that some form of discrimination or exclusion is attached to the measure, but I assure the House that that is not the case. The only question is who will benefit first, and who will benefit in subsequent waves of eligibility. The warnings are there; we have seen them in the report by the Policy Studies Institute, which I commend to Opposition Members.

I think that the point made by the right hon. Member for Manchester, Wythenshawe about keeping down costs was answered by hon. Members on his own side, who made the valid point that fewer costs were expected as a result of the new arrangements. I acknowledge that his point about the Technical Advisory Group is important. I shall want to continue to benefit from the group's advice, not least on the guidance that we shall be issuing. As for the question of "pacing", I think that it is possible to "pace" a clause only if the Bill contains a discretion that can be used for the purpose. That discretion was removed from the Bill in Committee, so I do not think that the right hon. Gentleman's proposal would work, because the regulations would not be part of the proposals linked to the measure.

I believe that we all share the aim for direct payments to be available to all who can benefit from them, and wish to do so.

Mr. Rowe

Will my hon. Friend answer my question about when the review will start?

Mr. Bowis

My hon. Friend is right: in a sense, it will start on the day of implementation. At that point, we shall be working closely with the TAG and others to complete the details of the guidance. We shall be working on the regulation, and working to set up the monitoring arrangements. We shall assess the experience of local authorities, through questionnaires or other methods. That will start from day one of the Bill; after that, we shall move into the period of a year that I promised my hon. Friends.

I believe that pace is crucial. Wave will follow wave. But it is important for the waves to follow at a pace that will allow the local authorities, social services departments and voluntary organisations that have helped to set up the scheme to get it off the ground. I want a successful scheme, and I believe that the House does as well. I commend the amendments.

Question put, That the amendment be made:—

The House divided: Ayes 296, Noes 280.

Division No. 138] [19.04 pm
Ainsworth, Peter (East Surrey) Burt, Alistair
Aitken, Rt Hon Jonathan Butcher, John
Alexander, Richard Butler, Peter
Alison, Rt Hon Michael (Selby) Butterfill, John
Allason, Rupert (Torbay) Carlisle, John (Luton North)
Amess, David Carlisle, Sir Kenneth (Lincoln)
Arbuthnot, James Carrington, Matthew
Arnold, Jacques (Gravesham) Carttiss, Michael
Arnold, Sir Thomas (Hazel Grv) Cash, William
Ashby, David Channon, Rt Hon Paul
Aspinwall, Jack Churchill, Mr
Atkins, Rt Hon Robert Clappison, James
Atkinson, David (Bour'mouth E) Clark, Dr Michael (Rochford)
Atkinson, Peter (Hexham) Clarke, Rt Hon Kenneth (Ru'clif)
Baker, Rt Hon Kenneth (Mole V) Clifton-Brown, Geoffrey
Baker, Nicholas (North Dorset) Coe, Sebastian
Banks, Matthew (Southport) Colvin, Michael
Banks, Robert (Harrogate) Congdon, David
Bates, Michael Conway, Derek
Batiste, Spencer Coombs, Anthony (Wyre For'st)
Bellingham, Henry Coombs, Simon (Swindon)
Bendall, Vivian Cope, Rt Hon Sir John
Beresford, Sir Paul Cormack, Sir Patrick
Biffen, Rt Hon John Couchman, James
Body, Sir Richard Cran, James
Bonsor, Sir Nicholas Currie, Mrs Edwina (S D'by'ire)
Boswell, Tim Curry, David (Skipton & Ripon)
Bottomley, Rt Hon Virginia Davies, Quentin (Stamford)
Bowis, John Davis, David (Boothferry)
Boyson, Rt Hon Sir Rhodes Day, Stephen
Brandreth, Gyles Deva, Nirj Joseph
Brazier, Julian Devlin, Tim
Bright, Sir Graham Dicks, Terry
Brooke, Rt Hon Peter Dorrell, Rt Hon Stephen
Brown, M (Brigg & Cl'thorpes) Douglas-Hamilton, Lord James
Browning, Mrs Angela Dover, Den
Bruce, Ian (South Dorset) Duncan, Alan
Budgen, Nicholas Duncan Smith, Iain
Dunn, Bob Jones, Gwilym (Cardiff N)
Durant, Sir Anthony Jones, Robert B (W Hertfdshr)
Dykes, Hugh Jopling, Rt Hon Michael
Eggar, Rt Hon Tim Kellett-Bowman, Dame Elaine
Elletson, Harold Key, Robert
Emery, Rt Hon Sir Peter King, Rt Hon Tom
Evans, David (Welwyn Hatfield) Kirkhope, Timothy
Evans, Jonathan (Brecon) Knapman, Roger
Evans, Nigel (Ribble Valley) Knight, Mrs Angela (Erewash)
Evans, Roger (Monmouth) Knight, Rt Hon Greg (Derby N)
Evennett, David Knight, Dame Jill (Bir'm E'st'n)
Faber, David Knox, Sir David
Fabricant, Michael Kynoch, George (Kincardine)
Fenner, Dame Peggy Lait, Mrs Jacqui
Field, Barry (Isle of Wight) Lamont, Rt Hon Norman
Fishburn, Dudley Lang, Rt Hon Ian
Forman, Nigel Lawrence, Sir Ivan
Forsyth, Rt Hon Michael (Stilling) Legg, Barry
Forth, Eric Leigh, Edward
Fowler, Rt Hon Sir Norman Lennox-Boyd, Sir Mark
Fox, Dr Liam (Woodspring) Lester, Sir James (Broxtowe)
Fox, Rt Hon Sir Marcus (Shipley) Lidington, David
Freeman, Rt Hon Roger Lilley, Rt Hon Peter
French, Douglas Lord, Michael
Fry, Sir Peter Luff, Peter
Gale, Roger MacGregor, Rt Hon John
Gallie, Phil MacKay, Andrew
Gardiner, Sir George Maclean, Rt Hon David
Garel-Jones, Rt Hon Tristan McLoughlin, Patrick
Garnier, Edward McNair-Wilson, Sir Patrick
Gill, Christopher Madel, Sir David
Gillan, Mrs Cheryl Maitland, Lady Olga
Goodlad, Rt Hon Alastair Malone, Gerald
Goodson-Wickes, Dr Charles Mans, Keith
Gorman, Mrs Teresa Marland, Paul
Gorst, Sir John Marlow, Tony
Grant, Sir A (SW Cambs) Marshall, John (Hendon S)
Greenway, Harry (Ealing N) Marshall, Sir Michael (Arundel)
Greenway, John (Ryedale) Mawhinney, Rt Hon Dr Brian
Griffiths, Peter (Portsmouth, N) Mellor, Rt Hon David
Grylls, Sir Michael Mills, Iain
Gummer, Rt Hon John Mitchell, Andrew (Gedling)
Hague, Rt Hon William Mitchell, Sir David (NW Hants)
Hamilton, Rt Hon Sir Archibald Monro, Rt Hon Sir Hector
Hamilton, Neil (Tatton) Montgomery, Sir Fergus
Hampson, Dr Keith Moss, Malcolm
Hanley, Rt Hon Jeremy Needham, Rt Hon Richard
Hargreaves, Andrew Nelson, Anthony
Haselhurst, Sir Alan Neubert, Sir Michael
Hawkins, Nick Newton, Rt Hon Tony
Hawksley, Warren Nicholls, Patrick
Hayes, Jerry Nicholson, David (Taunton)
Heald, Oliver Norris, Steve
Heath, Rt Hon Sir Edward Onslow, Rt Hon Sir Cranley
Heathcoat-Amory, Rt Hon David Oppenheim, Phillip
Hendry, Charles Ottaway, Richard
Heseltine, Rt Hon Michael Page, Richard
Hicks, Robert Paice, James
Higgins, Rt Hon Sir Terence Patnick, Sir Irvine
Hill, James (Southampton Test) Patten, Rt Hon John
Hogg, Rt Hon Douglas (G'tham) Pattie, Rt Hon Sir Geoffrey
Horam, John Pawsey, James
Hordern, Rt Hon Sir Peter Peacock, Mrs Elizabeth
Howard, Rt Hon Michael Pickles, Eric
Howell, Rt Hon David (G'dford) Porter, Barry (Wirral S)
Howell, Sir Ralph (N Norfolk) Porter, David (Waveney)
Hughes, Robert G (Harrow W) Portillo, Rt Hon Michael
Hunt, Rt Hon David (Wirral W) Powell, William (Corby)
Hunt, Sir John (Ravensbourne) Redwood, Rt Hon John
Hunter, Andrew Renton, Rt Hon Tim
Hurd, Rt Hon Douglas Richards, Rod
Jack, Michael Riddick, Graham
Jackson, Robert (Wantage) Robathan, Andrew
Jenkin, Bernard Roberts, Rt Hon Sir Wyn
Jessel, Toby Robinson, Mark (Somerton)
Johnson Smith, Sir Geoffrey Roe, Mrs Marion (Broxbourne)
Rowe, Andrew (Mid Kent) Temple-Morris, Peter
Rumbold, Rt Hon Dame Angela Thomason, Roy
Ryder, Rt Hon Richard Thompson, Sir Donald (C'er V)
Sackville, Tom Thompson, Patrick (Norwich N)
Sainsbury, Rt Hon Sir Timothy Thornton, Sir Malcolm
Scott, Rt Hon Sir Nicholas Townend, John (Bridlington)
Shaw, David (Dover) Townsend, Cyril D (Bexl'yh'th)
Shaw, Sir Giles (Pudsey) Tracey, Richard
Shephard, Rt Hon Gillian Tredinnick, David
Shepherd, Sir Colin (Hereford) Trend, Michael
Shepherd, Richard (Aldridge) Trotter, Neville
Shersby, Sir Michael Twinn, Dr Ian
Skeet, Sir Trevor Vaughan, Sir Gerard
Smith, Sir Dudley (Warwick) Viggers, Peter
Smith, Tim (Beaconsfield) Waldegrave, Rt Hon William
Soames, Nicholas Walden, George
Speed, Sir Keith Walker, Bill (N Tayside)
Spencer, Sir Derek Ward, John
Spicer, Sir James (W Dorset) Wardle, Charles (Bexhill)
Spicer, Sir Michael (S Worcs) Waterson, Nigel
Spink, Dr Robert Watts, John
Sproat, Iain Wells, Bowen
Squire, Robin (Hornchurch) Wheeler, Rt Hon Sir John
Stanley, Rt Hon Sir John Whitney, Ray
Steen, Anthony Whittingdale, John
Stephen, Michael Widdecombe, Ann
Stern, Michael Willetts, David
Stewart, Allan Wilshire, David
Streeter, Gary Winterton, Mrs Ann (Congleton)
Sumberg, David Wolfson, Mark
Sweeney, Walter Yeo, Tim
Sykes, John Young, Rt Hon Sir George
Tapsell, Sir Peter
Taylor, Ian (Esher) Tellers for the Ayes:
Taylor, John M (Solihull) Mr. Timothy Wood and Mr. Simon Burns.
Taylor, Sir Teddy (Southend, E)
Abbott, Ms Diane Campbell, Menzies (Fife NE)
Adams, Mrs Irene Campbell, Ronnie (Blyth V)
Ainger, Nick Campbell-Savours, D N
Ainsworth, Robert (Cov'try NE) Canavan, Dennis
Allen, Graham Cann, Jamie
Alton, David Carlile, Alexander (Montgomery)
Anderson, Donald (Swansea E) Chisholm, Malcolm
Anderson, Ms Janet (Ros'dale) Church, Judith
Armstrong, Hilary Clapham, Michael
Ashton, Joe Clark, Dr David (South Shields)
Austin-Walker, John Clarke, Eric (Midlothian)
Banks, Tony (Newham NW) Clarke, Tom (Monklands W)
Barnes, Harry Clelland, David
Barron, Kevin Clwyd, Mrs Ann
Battle, John Coffey, Ann
Bayley, Hugh Connarty, Michael
Beckett, Rt Hon Margaret Cook, Frank (Stockton N)
Bell, Stuart Cook, Robin (Livingston)
Benn, Rt Hon Tony Corbett, Robin
Bennett, Andrew F Corbyn, Jeremy
Benton, Joe Corston, Jean
Bermingham, Gerald Cox, Tom
Berry, Roger Cummings, John
Betts, Clive Cunliffe, Lawrence
Blair, Rt Hon Tony Cunningham, Jim (Covy SE)
Blunkett, David Cunningham, Rt Hon Dr John
Boateng, Paul Cunningham, Roseanna
Bowden, Sir Andrew Dafis, Cynog
Bradley, Keith Dalyell, Tam
Bray, Dr Jeremy Darling, Alistair
Brown, Gordon (Dunfermline E) Davidson, Ian
Brown, N (N'c'tle upon Tyne E) Davies, Bryan (Oldham C'tral)
Bruce, Malcolm (Gordon) Davies, Chris (L'Boro & S'worth)
Burden, Richard Davies, Rt Hon Denzil (Llanelli)
Byers, Stephen Davies, Ron (Caerphilly)
Caborn, Richard Davis, Terry (B'ham, H'dge H'l)
Callaghan, Jim Denham, John
Campbell, Mrs Anne (C'bridge) Dewar, Donald
Dixon, Don Kilfoyle, Peter
Dobson, Frank Kirkwood, Archy
Donohoe, Brian H Lestor, Joan (Eccles)
Dowd, Jim Lewis, Terry
Eagle, Ms Angela Liddell, Mrs Helen
Eastham, Ken Litherland, Robert
Etherington, Bill Livingstone, Ken
Evans, John (St Helens N) Lloyd, Tony (Stretford)
Ewing, Mrs Margaret Llwyd, Elfyn
Fatchett, Derek Loyden, Eddie
Faulds, Andrew Lynne, Ms Liz
Field, Frank (Birkenhead) McAllion, John
Fisher, Mark McAvoy, Thomas
Foster, Rt Hon Derek McCartney, Ian
Foster, Don (Bath) Macdonald, Calum
Foulkes, George McFall, John
Fraser, John McKelvey, William
Fyfe, Maria McLeish, Henry
Galbraith, Sam Maclennan, Robert
Galloway, George McNamara, Kevin
Gapes, Mike MacShane, Denis
Garrett, John McWilliam, John
George, Bruce Madden, Max
Gerrard, Neil Maddock, Diana
Gilbert, Rt Hon Dr John Mahon, Alice
Godman, Dr Norman A Mandelson, Peter
Godsiff, Roger Marek, Dr John
Golding, Mrs Llin Marshall, David (Shettleston)
Graham, Thomas Marshall, Jim (Leicester, S)
Grant, Bernie (Tottenham) Martin, Michael J (Springburn)
Griffiths, Nigel (Edinburgh S) Martlew, Eric
Griffiths, Win (Bridgend) Maxton, John
Grocott, Bruce Meacher, Michael
Hain, Peter Meale, Alan
Hall, Mike Michael, Alun
Hardy, Peter Michie, Bill (Sheffield Heeley)
Harman, Ms Harriet Michie, Mrs Ray (Argyll & Bute)
Harvey, Nick Milburn, Alan
Hattersley, Rt Hon Roy Miller, Andrew
Henderson, Doug Mitchell, Austin (Gt Grimsby)
Heppell, John Molyneaux, Rt Hon Sir James
Hill, Keith (Streatham) Moonie, Dr Lewis
Hinchliffe, David Morgan, Rhodri
Hodge, Ms Margaret Morley, Elliot
Hoey, Kate Morris, Rt Hon Alfred (Wy'nshawe)
Hogg, Norman (Cumbernauld) Morris, Estelle (B'ham Yardley)
Home Robertson, John Morris, Rt Hon John (Aberavon)
Hood, Jimmy Mowlam, Marjorie
Hoon, Geoffrey Mudie, George
Howarth, Alan (Strat'rd-on-A) Mullin, Chris
Howarth, George (Knowsley North) Murphy, Paul
Howells, Dr Kim (Pontypridd) Nicholson, Emma (Devon West)
Hoyle, Doug Oakes, Rt Hon Gordon
Hughes, Kevin (Doncaster N) O'Brien, Mike (N W'kshire)
Hughes, Robert (Aberdeen N) O'Brien, William (Normanton)
Hughes, Roy (Newport E) O'Hara, Edward
Hughes, Simon (Southwark) Olner, Bill
Hutton, John O'Neill, Martin
Illsley, Eric Orme, Rt Hon Stanley
Ingram, Adam Parry, Robert
Jackson, Glenda (H'stead) Pearson, Ian
Jackson, Helen (Shef'ld, H) Pendry, Tom
Jamieson, David Pickthall, Colin
Janner, Greville Pike, Peter L
Jenkin, Brian Powell, Ray (Ogmore)
Johnston, Sir Russell Prentice, Bridget (Lew'm E)
Jones, Barry (Alyn and D'side) Prentice, Gordon (Pendle)
Jones, Dr Lynne (B'ham S O) Prescott, Rt Hon John
Jones, Martyn (Clwyd, SW) Primarolo, Dawn
Jones, Nigel (Cheltenham) Purchase, Ken
Jowell, Tessa Quin, Ms Joyce
Kaufman, Rt Hon Gerald Randall, Stuart
Keen, Alan Raynsford, Nick
Kennedy, Charles (Ross,C&S) Reid, Dr John
Kennedy, Jane (L'pool Br'dg'n) Rendel, David
Khabra, Piara S Robertson, George (Hamilton)
Robinson, Geoffrey (Co'try NW) Straw, Jack
Roche, Mrs Barbara Sutcliffe, Gerry
Rogers, Allan Taylor, Mrs Ann (Dewsbury)
Rooker, Jeff Thompson, Jack (Wansbeck)
Rooney, Terry Thurnham, Peter
Ross, Ernie (Dundee W) Timms, Stephen
Ross, William (E Londonderry) Tipping, Paddy
Rowlands, Ted Touhig, Don
Ruddock, Joan Trickett, Jon
Salmond, Alex Turner, Dennis
Sedgemore, Brian Vaz, Keith
Sheerman, Barry Walker, Rt Hon Sir Harold
Sheldon, Rt Hon Robert Walley, Joan
Short, Clare Wardell, Gareth (Gower)
Simpson, Alan Wareing, Robert N
Skinner, Dennis Welsh, Andrew
Smith, Andrew (Oxford E) Wicks, Malcolm
Smith, Chris (Isl'ton S & F'sbury) Williams, Rt Hon Alan (Sw'n W)
Smith, Llew (Blaenau Gwent) Williams, Alan W (Carmarthen)
Smyth, The Reverend Martin Wilson, Brian
Snape, Peter Winnick, David
Soley, Clive Wise, Audrey
Spearing, Nigel Worthington, Tony
Spellar, John Young, David (Bolton SE)
Squire, Rachel (Dunfermline W)
Stevenson, George Tellers for the Noes:
Stott, Roger Mr. Greg Pope and Mr. Jon Owen Jones.
Strang, Dr. Gavin

Question accordingly agreed to.

Amendments made: No. 13, in page 1, line 10, leave out 'pay' and insert 'make'.

No. 14, in page 1, line 10, leave out from 'him' to first 'of' in line 11 and insert', in respect'.

No. 15, in page 1, line 12, at end insert

`, a payment of such amount as, subject to subsections (2) and (3) below, they think fit.'.

No. 16, in page 1, leave out lines 13 to 20 and insert—

'(2) If—

  1. (a) an authority pay under subsection (1) above at a rate below their estimate of the reasonable cost of securing the provision of the service concerned, and
  2. (b) the payee satisfies the authority that his means are insufficient for it to be reasonably practicable for him to make up the difference, the authority shall so adjust the payment to him under that subsection as to avoid there being a greater difference than that which appears to them to be reasonably practicable for him to make up.

3) In the case of a service which, apart from this Act, would be provided under section 117 of the Mental Health Act 1983 (aftercare), an authority shall not pay under subsection (1) above at a rate below their estimate of the reasonable cost of securing the provision of the service.'.—[Mr. McLoughlin.]

Mr. Tom Clarke

I beg to move amendment No. 2, in page 1, line 24, at end insert— '(4A) A person in receipt of a payment under subsection (1) above may secure the provision of the service to which it relates from a person, notwithstanding that that person is of a description specified in regulations under subsection (4) above, provided that the authority are satisfied that the person by whom the services are to be provided is an appropriate person.'.

Mr. Deputy Speaker (Sir Geoffrey Lofthouse)

With this, it will be convenient to discuss amendment No. 5, in clause 4, page 3, line 20, at end insert— '(3A) A person in receipt of a payment under subsection (1) above may secure the provision of the service to which it relates from a person, notwithstanding that that person is of a description specified in regulations under subsection (3) above, provided that the authority are satisfied that the person by whom the services are to be provided is an appropriate person.'.

Mr. Clarke

I am delighted to present the amendments to the House. I must again say that I regret that the Government deliberately staged this business on a day when we had very important talks in Northern Ireland. Without that devious approach, we could have had a very different result on the previous amendment.

My hon. Friend the Member for Darlington (Mr. Milburn) has already drawn attention to some of the inconsistencies between cash payments under the Bill and those under the independent living fund and the ILF transfer, in relation to some of the financial issues. There is another area where the Minister has failed to deal with inconsistency between the two types of cash payment. Under the ILF and its successors, disabled people may not employ close relatives as paid carers if they live in the same household. Payments are allowed when recipients live alone or when the person with whom they live is unable to meet all the care needs. The Minister has made it clear that he will use his regulation-making powers under subsection (4) to exclude a long list of family members, whether or not they live in the same household. It is an arbitrary list that includes sons-in-law, but not nephews; stepsons' wives, but not nieces; grandparents, but not great-aunts and uncles. Putting that right would be welcome, even though it would be contrary to the Government approach today, when they have resisted all logical argument.

Rather than having an arbitrary list defining who is and who is not a close relative and barring them from receiving payment as carers under the Bill, we should apply the same common-sense approach to this issue as applies under the independent living fund. We should give local authorities greater discretion than the Minister intends, to allow the employment of a close relative where that is clearly the independent choice made by the disabled person and where allowing that choice is clearly in the disabled person's best interests.

I entirely accept, as do local authorities, that disabled people should not be exposed to undue pressure from family members to spend their cash payments on employing relatives. Likewise, close relatives must be protected from pressure to give up other work to be paid to care for a disabled person. It is for those reasons that we accept that there should be a general presumption against turning informal care into paid employment. However, in the context of that general assumption, the scope for local authorities to exercise their discretion should be wider than the Bill proposes.

The Minister made it clear in Committee that he intends to issue section 7 guidance to exclude employment of close relatives. First, he proposes: local authorities should not make direct payments where the recipient intends to employ or contract with close relatives who live elsewhere". Secondly, he proposes: Local authorities must give effect to the policy as manifested in such guidance, but they have discretion to make exceptions where the circumstances merit it. Where they do not act in accordance with such guidance they may be subject to legal challenge unless they can show good reason for making an exception."—[Official Report, Standing Committee D, 2 April 1996; c. 103–4.] The Government have said that they will recognise good reason for making an exception where a user lives in a sparsely populated rural area or where a person might want to employ a family member for religious or cultural reasons. Those are good reasons, but there will be other cases, as the experience of users of payments from ILF sources has shown. The ILF published a report in 1992, "Cash for Care", which summarised much of that valuable experience.

The evidence is that some disabled people choose to employ relatives because of a fear of being taken advantage of by a stranger coming into their homes or because they found it less embarrassing to have a relative assist them in certain areas of their very personal day-to-day lives. Indeed, those are some of the considerations that might prompt disabled people to take up direct payments in the first place. It is surely deeply inconsistent to introduce a Bill to give people greater choice and control in the provision of their own care and then to deny them the choice of employing a relative to provide personal care, which may be what they most want and need.

Disabled users told the authors of the ILF report that employing a relative allowed them to relax immediately; that they benefited from having a carer who was familiar and trusted; that they could benefit from an extra degree of flexibility from the carer; and that they could rely on a greater degree of consistency and commitment. Those are all important points; none of them applies across the board. Just as there are disabled people who would greatly prefer to employ a family member, so there are others who would not choose to employ a close relative under any circumstances.

The key is not whether people do or do not wish to employ family members; it is that they should have the freedom to make that choice. Our amendment does not give them unlimited choice. They still have to satisfy the local authority making the direct payment that their choice is a sound one. That is a good deal better than what the Government propose. It makes the decision on who should be employed subject to the same local authority discretion and the same professional assessment by social services staff as the decisions on how much care is needed and whether direct payments are appropriate in the first place. That is how it should be.

As with eligibility to receive direct payments, eligibility to be employed should not be a matter for blanket exclusions by the Secretary of State, with exceptions allowed only in the most exceptional circumstances. It should be a matter for the free and considered judgment of the disabled person and the discretion and professional judgment of the local council.

7.30 pm
Mr. Alfred Morris

Amendment No. 2 is a well-justified attempt to stop the Government excluding certain people from being hired as helpers because they are so-called "close relatives" or because they are living in the same household as the disabled person. The amendment provides effectively for an easing of the currently proposed ban on them.

The problem with the Government's list of who can and cannot be hired—as my hon. Friend the Member for Monklands, West explained—is that it includes some relatives who, in the real world, cannot really be termed "close". The surviving partner, a stepson, an aunt or a grandparent are examples.

It might be reasonable to exclude anyone who is already providing assistance to a disabled person and for whom extra help is being sought from the local authority, but that could exclude people receiving invalid care allowance and would not be appropriate in all cases. This raises the issue of how the invalid care allowance will be treated in relation to direct payments. About that there has been an ominous official silence which should now be ended.

Care will need to be taken in deciding who to classify as a partner. Is the classification to include gay or lesbian couples? How will disabled people be protected from a local authority that is over-officious or intrusive in determining whether a partner is indeed a partner?

To avoid the difficulty that the Government describe as "creating pressure for informal care to be put on a formal contractual basis" while also avoiding a hard list of excluded relatives, it might be possible to put the onus of proof on the local authority to show that the person the disabled person seeks to pay would provide the requisite care informally.

In relation to lodgers and other persons living in, the wording used throughout the passage of the Bill has been very worrying to many disabled people. As explained in paragraph 24 of the consultative paper and by Baroness Cumberlege, in Committee in another place, such people could not be paid unless they are people who have been specifically recruited to be live-in personal assistants."—[Offcial Report, House of Lords, 15 January 1996; Vol. 568, c. 411.] That would preclude a person who has someone other than a close relative living in the household—a lodger or a friend, for example—from arranging with that person to become her or his helper.

The wording suggests that that person would have to be hired as a helper and then given accommodation. That is far too restrictive. It would rule out direct payments to people taking in lodgers whom they subsequently decide to hire as helpers. There would be nothing improper in such a situation and, in my view, it should be allowed.

As far as the relative not living in the same household is concerned, it ought to be possible without treating it as an exceptional case—as proposed in paragraph 24 of the consultation paper—to employ a close relative who is and remains living elsewhere. The practice of employing family members not living in the same household has worked well with the independent living fund. Why should it not work with direct payments? Indeed, if complications are to arise in the case of direct payments being made to top up payments from the ILF, I should have thought it essential that the same rule should apply to direct payments as those applied to ILF payments.

An additional and most important point concerns the Government's requirement, set down in the consultation paper—in section G on emergency cover, at paragraph 33—that disabled people will have to make sensible arrangements so that they have adequate cover in an emergency—for example, if one of their usual assistants is taken ill. What more normal course of action could there be than to ask a relative to stand by for emergencies? The current proposals would preclude payment to the relative in those circumstances. That is not reasonable.

The amendment, in my opinion, sensibly opens the door to improvements in all these areas by giving local authorities discretion to take account of individual circumstances. That must be the right course to take.

Mr. Bowis

I can reassure both the hon. Member for Monklands, West and the right hon. Member for Wythenshawe that their worries have been taken into account. I understand the mystification that can occur when different funds and different benefits have different rules. There are, of course, similarities with the independent living fund, but there are also differences. The ILF provides funding for personal care for a small group of severely disabled people. With direct payments in lieu of community services, services will go much further—including such services as day care outside the home, provision of aid and adaptations and residential care.

The hon. Member for Monklands, West is quite right. In Committee, I announced the results of our consideration of the consultation exercise and announced that we would proceed with the regulations and the guidance. Those are two separate matters, to which I shall return to address the points made by the right hon. Member for Wythenshawe.

The regulations which we propose will prevent people from using direct payments to employ close relatives living in the same household. The guidance will also tell local authorities not to make direct payments in cases where the recipient intends to use them to secure services from a close relative living elsewhere or from someone else living in the same household, unless that person has been recruited as a live-in personal assistant. Local authorities will be able to make exceptions to the guidance when they are satisfied that there is no satisfactory alternative.

The problems that we are seeking to avoid are the difficulty of enforcing contracts with relatives and the pressure to employ a relative who would not necessarily have been the disabled person's first choice—a problem that can arise whether or not the relative shares the home and whether or not someone sharing the home is a relative. On the basis of those problems, the people whom we consulted on this matter reached the conclusion—the conclusion that we have reached—that we must have restrictions. That is why we have decided to proceed with the guidance and the regulations.

Local authorities will have discretion to make exceptions to the guidance when circumstances merit it. The hon. Member for Monklands, West mentioned two circumstances: sparse population and strong cultural preference. I stress that exceptions can be made for other reasons and are not limited to those two. The guidance will make that clear.

In contrast, the amendment would weaken the presumption against someone who falls into one of those categories and would allow local authorities to disregard the regulations. If we were to accept these amendments, that would seriously undermine the restrictions that we propose. The discretion that we intend to allow will be sufficient to make exceptions when there are no suitable alternatives.

It would not be appropriate to make exceptions to the restrictions in regulations. I do not believe that a straightforward employer-employee relationship is possible between two close relatives sharing the same household.

The restrictions we propose will protect disabled people's independence and were supported by responses to the consultation exercise. I believe that they will create the best framework for direct payments. I hope that I have been able to satisfy the hon. Member for Monklands, West and the right hon. Member for Wythenshawe.

Mr. Tom Clarke

Being generous of nature, I would like to tell the Minister that he has satisfied me, but I would be less than truthful if I did. However, we have carefully considered what he said, and I think that discussions on this matter will continue. As we are well on the way to enacting the Bill, it will be useful to consider what happens at local level, particularly in relation to this matter. I am sure that the dialogue that the Minister has conducted—of which we are aware and have tried to emulate—will continue.

I look forward, perhaps in a year's time, to having perhaps some influence on the review that will consider the Bill. In that very generous spirit, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Milburn

I beg to move amendment No. 9, in page 1, line 24, at end insert— 1 '(4A) The Secretary of State shall issue guidance to local authorities to provide for procedures to be adopted for the assessment and review of any financial contribution which may be required from the person under subsection (2) above, and for the amount of any such contribution to be notified to the person after the direct payment has been made to him but before any such contributions are deducted.'.

Mr. Deputy Speaker

With this, it will be convenient to discuss amendment No. 10, in clause 4, page 3, line 15, at end insert— '(2A) The Secretary of State shall issue guidance to local authorities to provide for procedures to be adopted for the assessment and review of any financial contribution which may be required from the person under subsection (2) above, and for the amount of any such contribution to be notified to the person after the direct payment has been made to him but before any such contributions are deducted.'.

Mr. Milburn

The amendments return us, once again, to the principle of fairness which we have debated during much of this afternoon's proceedings and they cover issues that we discussed at length in Committee. They are of concern to a number of disability organisations, including RADAR—the Royal Association for Disability and Rehabilitation. Their worry is straightforward.

The Bill would discriminate against direct payment recipients because it would give them different treatment from that accorded to the equivalent service user. The service user will continue to be provided with the service if there is a dispute with the local authority about the scale of the charges it seeks to make as a contribution towards that service. Indeed, service users will be able to appeal against the assessment made by the local authority on the basis of its reasonableness. Services will continue to be provided during the appeal because they are legally protected.

By contrast, deducting charges from direct payment recipients in advance, which is what the Bill allows, could jeopardise the provision of the services that they have bought. Under the amendments, any deduction or any assessment of an individual's financial contribution against the level of a direct payment would take place only once the payment had been received; otherwise there is a risk that services could not be bought or that the direct payment recipient, unlike the service user, would have to foot the additional bill without any right of appeal.

The amendment addresses some inconsistencies in the Bill and is designed to establish a level playing field between direct service users and direct payment recipients. It is designed to uphold the dignity of disabled people by allowing them full control over their own financial affairs rather than giving power back to the local authority. We believe that it is consistent with the principles of the Bill and I hope that it gets a fair wind from the Minister.

Mr. Bowis

I am grateful to the hon. Member for Darlington (Mr. Milburn) for the way in which he moved the amendment. It calls, first, for guidance on procedures for assessment and review of the financial contribution that the local authority expects people to make and, secondly, for direct payments to cover the full cost of the services to which they relate and for any contribution from recipients to be recovered later rather than deducted at source.

We have already discussed the discretion that local authorities have over the assessment of how much people should contribute to the cost of their non-residential care. I have explained why the Government do not wish to restrict that discretion and, more particularly, why it is not appropriate to use the Bill to lay down procedures for assessment.

If people feel that they are being expected to contribute too much to the overall cost of their care, the first step is for them to ask the authority to adjust the level of the direct payment, as provided for under Government amendment No. 16, which will insert a new subsection (2) in clause 1. If the local authority refuses to adjust the payment and the person remains dissatisfied, he or she will have access to the community care complaints procedure. If people do not think that they can manage at all, they may refuse to accept the direct payments, in which case they will receive services instead. If, on the other hand, the difference is small or they have already begun to receive direct payments before they realise that the amount is inadequate, they may decide to accept the direct payments while their complaint is being considered. The fact that they have not withdrawn their consent does not prevent them from using the complaints procedure or, ultimately, the ombudsman.

Those are adequate and appropriate review procedures. It would be cumbersome and bureaucratic to create an additional procedure in respect of financial contributions from people who receive direct payments only.

I now turn to the proposal that direct payments should cover the full cost of the services to which they relate, with any contribution from recipients being recovered later. That seems to me to be a much more bureaucratic system and more open to abuse than our proposal for making direct payments net of any contribution from the recipient.

I realise that the hon. Member for Darlington seeks to reflect the situation for services, where the local authority is required to provide the service that it assesses someone as needing before seeking to recover any charge for that

service. I do not think that it follows that local authorities should pay out more cash than they have judged appropriate and then seek to recover a contribution from the individual. Incidentally, the amendment does not create any power for the authority to recover the individual's contribution once it has assessed it. The amendment might, in fact, prevent authorities from securing any financial contribution where they make direct payments. Again, the level playing field would be out the window. [Laughter.] I said that I would get that phrase in again.

Direct payments are not a benefit to be added to the recipient's income. The money is paid to the individual to enable that individual to secure the services he has been assessed as needing. There is no reason why a local authority should be required to pay someone more money than it judges he needs to enable him to secure him those services. I hope that the hon. Gentleman will not press the amendment.

7.45 pm
Mr. Milburn

I rather like the Minister's idea of throwing the level playing field out the window. Perhaps that would have avoided all the discussions and debates we have had over the past couple of months. They seem to have been about level playing fields and little else. That may be a fitting way in which to end our discussions on the meat of the Bill before we move to Third Reading.

Concerns have been expressed by disability organisations about the way in which, potentially at least, direct payment recipients will be treated in relation to direct service recipients. However, I am sure that we shall return to the issue when the Bill is implemented. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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