§ Mr. Hutton
I beg to move amendment No. 39, in page 2, line 18, after "services", insert—and they both agree it is to be so delivered'.
§ Mr. Deputy Speaker (Mr. Michael Lord)
With this it will be convenient to discuss the following amendments: No. 15, in page 2, line 20, at end insert—'without the consent of the person cared for'.No. 37, in page 2, line 20, at end insert—'(3A) A service cannot be provided to a carer where it could otherwise be provided to the person cared for if it—
- (a) is one which could fall within community care services; and
- (b) is one that the person cared for does not object to receiving as a community care service provided to him.'.
§ Mr. Hutton
Amendment No. 39 stands in the names of my hon. Friend the Member for Stalybridge and Hyde (Mr. Pendry) and my right hon. Friend the Secretary of State. However, Mr. Deputy Speaker, you have only just taken charge of our proceedings and may not be aware that my hon. Friend is suffering from the effects of illness. As I explained to Madam Speaker earlier, I am, with my hon. Friend's agreement, happy to take the load off his shoulders in moving this amendment.
I shall begin by explaining some of the background to the amendment, which is probably one of the most important selected for debate today. If the House accepts it, it will strengthen the Bill significantly. In discussions with carers organisations, my hon. Friend the Member for Stalybridge and Hyde and I identified the need to reassure people that a carer and the person cared for must both agree in cases where a service is provided to the carer but is delivered to the cared-for person. The fact that two other amendments that touch on that point have been tabled by hon. Members highlights the concern about that issue.
The amendment would make it explicit in the Bill that agreement needs to be obtained in the cases I have described. To ensure that the balance of the Bill is retained, the amendment covers both the carer and the cared-for person. It provides that the carer must agree to having the service provided, and the cared-for person must agree to the service being delivered. I am pleased to say that the amendment now has the support of the Carers National Association.
442 I take this opportunity to repeat assurances given in Committee that if the Bill receives Royal Assent, the Government will issue guidance to local councils under section 7 of the Local Authority Social Services Act 1970. That will cover the use of this new flexibility, so that it does not compromise or put at risk the position of the carer or the cared-for person. I hope that my hon. Friend the Member for Harrow, West (Mr. Thomas) and the hon. Member for Sutton and Cheam (Mr. Burstow) are reassured by amendment No. 39 and so will not move their own amendments, but support this one.
Clause 2(3) was never intended to operate as a sort of sleight-of-hand under which carers could be double-charged for services delivered to the cared-for person. I hope that amendment No. 39, together with amendment No. 33, which we shall come to later, will put to rest any such concerns.
I am grateful to the hon. Member for Sutton and Cheam for his amendment No. 37 on this general area. I fully understand the point that he and the hon. Member for St. Ives (Mr. George) are making. I think, however, that amendment No. 39 deals with their concerns in a better way, because it emphasises the need for both the carer and the cared-for person to agree to the services being delivered to the cared-for person. Both parties should be fully satisfied about the way in which services are to be delivered. This is the fair way to proceed in what is, by common consent, a sensitive area. The amendment will ensure that that happens. It will ensure that clause 2(3) will have the effect that we always intended it to have, but will allow us to retain the flexibility for services to be delivered in the most sensible way possible.
Amendment No. 39, together with amendment No. 33, will, I hope, deal with the very genuine concerns expressed by hon. Members and carers organisations that carers might be treated unfairly as a result of the way in which clause 2(3) and clause 4 have been drafted. My hon. Friend the Member for Stalybridge and Hyde has been determined to avoid any such outcome, and I am pleased that he has taken the initiative in putting matters straight. I hope, therefore, that the House will support amendment No. 39 and that the other two amendments in the group will not be pressed.
§ Mr. Burstow
I wish to speak briefly to the amendment in my name, although I should say at the set that I will probably not press it, for the very good reasons that the Minister has given. However, it provides me with an opportunity to revisit one or two points that were explored in some detail in Committee.
The Minister gave a very welcome indication in Committee on 8 March that he and the hon. Member for Stalybridge and Hyde (Mr. Pendry) were minded to bring forward an amendment on Report. Although I am not entirely comfortable with the precise drafting of the amendment, I think that, by and large, it addresses the concern that the Bill as it stands unintentionally creates a loophole, and that some local authorities might decide to drive a coach and horses through it to redefine particular services in such a way as to shift the financial burden from one party to the other. As the Minister has said, that is not the Government's intention. It is in that context that my amendment was tabled.
We have discussed several times today the need to be sensitive to the balance of interests between the disabled or cared-for person and the carer. I am strongly of the view that we must be mindful of the need to promote 443 independence for the disabled person within that relationship wherever possible. That is one area in which my amendment attempted to give the final deciding influence and interest to the disabled person. Amendment No. 39 does at least give both parties a say. Although I still think that it would be better to give a signal that we want to empower and promote independence for the disabled person, the Minister's arguments go a very long way to meeting the concerns that were expressed outside the House and which I and other hon. Members raised in Committee.
I shall not press my amendment because the Minister has clearly presented his case.
§ Mrs. Spelman
We sought this important amendment after the Committee stage because everyone saw a loophole in the Bill as originally drafted. I remain concerned, however, that a problem remains, which was in fact the birthplace of the Bill. We want to deal with the problem where carers and those for whom they care have to come to an agreement about the help provided—when no agreement is reached, the carer sometimes becomes short. The amendment improves matters but, sadly, breakdowns in communications happen. In Committee, we heard of families where there is strain between the carer and the cared-for person simply because of the pressure involved in looking after someone with a disability. Relations can break down and agreement may be lacking. I ask the Minister to discuss that scenario in his reply.
In its most recent briefing, the Carers National Association remained concerned that the loophole may still exist. It would be possible for a local authority to identify a service such as transport to and from a day care centre as one that benefits the carer. The respite bought for a carer when a disabled child can go to a day care centre is valuable, but the danger remains that the carer may fall into a gap through lack of agreement or because local authorities seek to limit costs in providing assessed needs. Will the Minister assure us that one set of interests will not be played off against the other?
The boundaries that must be drawn between services and a support to the carer and to the cared-for person are difficult. There is a danger that the boundaries will become too blurred. Although the amendment improves matters, I want to be sure that scope remains for achieving the optimum solution for the carer and the cared-for person.
Mr. Gareth R. Thomas
I apologise for not having been present at the start of this debate. I want to speak briefly to my amendment No. 15. It is a probing amendment, so I do not intend to push it to a vote. It expresses concern from the Carers National Association about use of the word "intimate". The association's briefing points out that as intimate services are not defined, it is difficult to explore the scope of the provision.
I am concerned that services such as bathing, which may be offered to a disabled person to make the carer's life easier, might be unintentionally excluded from the Bill. My amendment would allow such services to be provided with the consent of the person being cared for. I ask my hon. Friend the Minister to clarify the Bill's intentions.
§ Mr. Hutton
The debate has been useful, and I shall address some of the remaining concerns about this aspect of the Bill. During our debates on Second Reading and in Committee, we tried to explain why we had drawn up clause 2(3) as we did. It was designed to give local authorities extra flexibility in the provision of services to carers. As I pointed out when I moved the amendment, the provision was never intended to be a camouflage—some device through which local authorities could mysteriously move the charging obligation for services either for the carer or for the cared-for person. Concerns were raised about that matter, so the amendment was tabled to put it beyond doubt.
Although amendment No. 39 is not grouped with amendment No. 33, hon. Members will realise that both are an attempt to deal with the issue. They make it clear that we were not inadvertently constructing a device that would, in effect, penalise carers if services delivered to the cared-for person were actually provided to the carer. I hope that the amendment will command the support of the House. It attempts to put the matter beyond reasonable doubt.
The hon. Member for Meriden (Mrs. Spelman) referred to consent—agreement between the cared-for person and the carer. When I moved the amendment, I made it clear—as my hon. Friend the Member for Stalybridge and Hyde (Mr. Pendry) would have done had his voice been with him—that the matter is sensitive. We cannot force people to accept services against their will. That would be intolerable for both the carer and the cared—for person, especially in regard to some of the services that would be covered by that provision-those of an intimate nature. To ensure that the consent of both parties is specified will be an important clarification of the clause.
The hon. Lady is right to point out that in some cases there may be no agreement between the carer and the cared-for person about the services delivered to the carer. However, I suspect that that is a fact of life. Such problems have always been with us; the Bill has not manufactured them out of thin air.
§ Mr. Burstow
That is the dilemma that the Bill was introduced to solve. If the cared-for person does not give consent to an assessment of their needs, the Bill unlocks the gate so that the carer can be assessed too. We have now slightly shifted downstream the point at which such conflict might arise. Can the Department give strong and clear guidance to local authorities to assist them in dealing with those sensitive issues and relationships?
§ Mr. Hutton
I shall say something about that issue in a moment, if the hon. Gentleman will bear with me. He is right to trace the history of the measure and the problem that it tried to resolve. However, the matter that he highlights is addressed in another part of the Bill.
The measure will allow services to be provided directly to the carer, notwithstanding the fact that the cared-for person has refused a community care assessment under the National Health Service and Community Care Act 1990. Those services can be provided directly to the carer. We are talking about services that could be described as "either way"—they could be offered to the carer or to the cared-for person. The background to clause 2(3) was an attempt to give local authorities greater flexibility in 445 designating their services, so that services could go to the cared-for person via the carer if that was convenient to both parties.
That was always the intention of that provision. It was never intended to be some careful device, cooked up by others, to allow local authorities, under their charging policies, to recover more from service users. That was never the purpose. My hon. Friend the Member for Stalybridge and Hyde has always made it clear that that was his view. In a Bill designed to empower and enable carers to receive better support, neither he nor I would support a provision that would knock them back to a situation in which they were unfairly treated or compromised financially. We shall not do that; that is why we tabled the amendment.
On the point that the hon. Member for Sutton and Cheam has just raised about local authorities, new flexibilities under clause 2(3), I tried to spell out in my opening remarks—I am happy to do so again—that we certainly intend to issue guidance, which I remind the House will have statutory effect under section 7 of the Local Authority Social Services Act 1970, on how local authorities may use such flexibilities, so double protection is built in. Amendment No. 39 will make it clear that the consent of both parties is needed, and we have the back-up of the force of section 7 statutory guidance.
Through this amendment, together with amendments that we shall debate in a minute, we have been anxious—my hon. Friend the Member for Stalybridge and Hyde has been so particularly—to ensure that the Bill reflects the perfectly fair and reasonable concerns that have been expressed. We recognised the potential for the sort of circumstances to which hon. Members have referred on Second Reading and in Committee, and believe that amendments Nos. 39 and 33 will lay such concerns to rest. The Bill's original intentions can be reconfirmed and clarified, and we can move on.
§ Amendment agreed to.