HL Deb 01 February 1983 vol 438 cc766-98

Report stage resumed.

Schedule 6 [Medical practitioners, etc.]:

Lord Lyell

moved Amendment No. 35: Page 57, leave out lines 22 to 25 and insert— ("(7) Regulations may provide that this Act and any regulations made under it shall apply in relation—

  1. (a) to the making of arrangements for the temporary provision of general medical services; and
  2. (b) to the provision of general medical services in pursuance of any such arrangements,
subject to such modifications as may be"). The noble Lord said: My Lords, with the permission of the House, I should like to speak to Amendments No. 35 and 37 together although, as your Lordships are aware, I shall be able to move only No. 35 at this stage. The two amendments are both statutory provisions which are to apply to temporary arrangements for general medical services as well as to normal arrangements. These include some which bear on the provision of services; for example, the terms of service of general practitioners and also the service committee regulations. Section 29(7) of the National Health Service Act 1977, as inserted by paragraph 2(2) of Schedule 6 to the Bill before us, therefore needs to refer not only, as at present drafted, to the making of arrangements for the addition of names to the list, but also to the provision of services under those arrangements. The same considerations apply to Section 19(6) of the National Health Service (Scotland) Act 1978, as inserted by paragraph 2(b) of Schedule 7 to this Bill. These are two slightly complicted amendments. I beg to move Amendment No. 35.

On Question, amendment agreed to.

Lord Lyell

moved Amendment No. 36: Page 58, line 41, at end insert—

(" Transitional

5. Until the commencement of section 9 and Schedule 5 of this Act—

  1. (a) the references in sections 29(2)(f) and 29(6) of the National Health Service Act 1977 to "locality" shall have effect as references to "district or combined district"; and
  2. (b) paragraph 10(1) of Schedule 5 to that Act shall have effect as if after the word "authority", in the first place where it occurs, there were inserted the words "(other than a Family Practitioner Committee)".").

The noble Lord said: My Lords, we expect Schedule 6 to the Bill to come into effect before the main FPC provisions in Section 9 and Schedule 5. However, the provisions of Schedule 6 which affect FPCs anticipate the new status of those committees provided for in Section 9 and Schedule 5. It is therefore necessary to make transitional modifications to those provisions of Schedule 6 so that they apply to FPCs only in so far as is appropriate to the present status of these committees—that is, until such time as Section 9 and Schedule 5 are introduced. I beg to move.

Baroness Gardner of Parkes

My Lords, I am not sure whether this is the appropriate place at which to raise this point, but it certainly comes under Schedule 6. Whether or not it relates to this particular amendment, perhaps the noble Minister will tell me. I am concerned that what is said about suspension of registration is appropriate only to doctors and not to dentists. I would ask the Minister to ensure that eventually dentists are also included at an appropriate point. I wondered whether this current amendment covered the point.

Lord Lyell

My Lords, with your Lordships' leave, I would reply, albeit briefly, to my noble friend. I am advised by my noble friend the Minister that he has this very day written a letter on this point to my noble friend Lady Gardner. I hope that will cover her query; but if there is something which still troubles her on the amendments I have raised, or indeed concerning Schedule 6, I have no doubt we shall be in touch after this evening.

On Question, amendment agreed to.

Schedule 7 [Amendment of National Health Service (Scotland) Act 1978]:

Lord Lyell

moved Amendment No. 37: Page 59, leave out lines 21 to 24 and insert— ("(6) Regulations may provide that this Act and any regulations made under it shall apply in relation—

  1. (a) to the making of arrangements for the temporary provision of general medical services; and
  2. (b) to the provision of general medical services in pursuance of any such arrangements,
subject to such modifications as may be") The noble Lord said: My Lords, this amendment is consequential and I spoke to it with amendment No. 35. I beg to move.

On Question, amendment agreed to.

Lord Lyell

moved Amendment No. 38: Page 59, line 45, leave out paragraph 3. The noble Lord said: My Lords, this is a brief and technical amendment. It is consequential upon Amendment No. 37, but perhaps I may detain your Lordships for a matter of seconds. Amendment No. 37 enabled regulations to modify the provisions of the 1978 Act when applied to the making of arrangements for the temporary provision of general medical services. It is. therefore, unnecessary to retain paragraph 3 of Schedule 7, since the modifications that it would have made in the 1978 Act may now be made by regulations. My Lords, I beg to move

On Question, amendment agreed to.

Clause 12 [Charges for various social services provided by local authorities]:

8.21 p.m.

Lord Wallace of Coslany

moved Amendment No. 39: Page 14, line 25, at end insert— ("Provided always that—

  1. (a) such charges (if any) take account of the extra costs of disability: and
  2. (b) no charge is levied in respect of any person whose income is equal to or less than is or would be calculated on his long-term supplementary benefits requirements: and
  3. (c) the general basis for calculating charges (if any) is published by the local authority concerned.")
The noble Lord said: My Lords, in this case I have received a letter dated 9th January from the noble Lord, Lord Trefgarne. In that letter he referred to an amendment to Clause 1, which was eventually to Schedule 5. But I will let that pass. The noble Lord indicated that discussions are going on. I should like to take this opportunity, much to the noble Lord's surprise, to thank him for his letter, in which he indicated that useful discussions were taking place with the ACC and the AMA, and that there was expectation of possible amendments to meet the points that I made at Committee stage, and will make now, regarding the exemption from charges of people on low incomes and with small capital resources.

Naturally, I accept the Government's sympathetic and constructive approach and I may not press my amendments, because I am looking forward to something happening in another place in due course. But in stating that, I should particularly like to draw the Minister's attention to sub-paragraph (c) of the amendment, because it is absolutely essential that people who are likely to face such charges, and, even more important, those who help and advise them on their rights, should be aware of the basis on which such charges are calculated. I trust that the Minister will find himself in a position to take the point on board during the discussions in another place, before reaching the possibility of putting down amendments. Also it is very important indeed to take into account the extra costs of disability, because, as I think he will readily understand, there are indeed extra costs.

I am dealing with all of the amendments from No. 39 to No. 43. Amendments Nos. 41 and 42—this will no doubt please the noble Lord, Lord Lyell—are simply designed to extend to Scotland a similar provision to that provided by the successful amendment of the noble Baroness, Lady Masham, at the Committee stage deleting the means test. We on this side feel that what is good enough for England is good enough for Scotland, and I hope we can be told that that will be deleted.

As I said, I have had that very satisfactory and reasonable letter from the noble Lord, Lord Trefgarne, and, if he will reply to me on the point about local authorities publishing the charges, so as to give guidance, and will give some degree of assurance on disability charges, I shall be very grateful indeed and, after that, I shall be quite willing to withdraw the amendment.

Baroness Gardner of Parkes

My Lords, I should like to take up this point about publishing charges and to put the other case. I do not really support the amendment about a general basis for calculating charges being published by local authorities, as it may have exactly the reverse effect to that hoped for by the noble Lord. I fear that publishing how charges are calculated, which would certainly not be a simple or easily understood document, would rather deter people from applying, because they might misinterpret the listing as set out by the local authority and think, "It isn't worth my while applying, because I will not get help".

I would refer the noble Lord to the part of the Bill which states that an authority, may recover from him such charges (if any)…as they consider reasonable". I speak remembering my time as chairman of social services at Westminster Council, and there was a time when we had a scale of fees and charges for home helps. But it was then decided that it was far better to assess the need for a home help, and so on, purely on the condition of the persons and not in any way on his ability to pay. There is no reason for saying that the publication of any general list in those cases would have helped people. The whole policy was reviewed by the council. Every charge that was made, whether for meals-on-wheels, home helps or any other local authority service was an extremely complicated calculation, both in regard to costs and in regard to the way in which a client's possibility of paying was assessed. Many local authorities have come to the conclusion that the need for the service is more important than the need to assess its costing.

I should also like to put to the Minister the reverse side of the coin. It has always distressed me that old people, who have been careful, thrifty and, perhaps, fortunate and who have managed to put aside small savings, often feel obliged to divest themselves of every penny of those funds in order to go into an old people's home and not be charged. That is a very common practice. I have heard Members of another party in this Chamber saying that they felt that those people should be stopped from giving their money away to their relations. I cannot agree with that view, because I feel that they are entitled to spend their money in any way they wish. But this whole matter of charges is extremely complex. There is no simple, easy or inexpensive way of publishing a list which clients could look at and decide very easily whether or not they are eligible for something. It would be better to have them apply to the council, and then be told by some qualified person who was sympathetic to their case what possiblity they had of receiving attention.

Lord Banks

My Lords, I would give general support to this amendment, although there is a good deal of weight in what the noble Baroness has just said. With regard to sub-paragraph (c), we should certainly take that very much into consideration, and I am fully in support of sub-paragraphs (a) and (b). It is vitally important in all matters which are in any way connected with social security to take into account the extra costs of disability. Indeed, we have from time to time pressed the Government to embark on a certain amount of research with regard to that and such research is much needed. Of course, it seems perfectly reasonable that people who are on or below the supplementary benefit level should not be required to contribute towards these services. So in general, and with that one reservation, I am in support of the amendment which the noble Lord, Lord Wallace, has moved. I am glad that he has had a satisfactory letter from the Minister dealing with this matter, and I look forward to hearing the Minister's reply to this short discussion.

Baroness Jeger

My Lords, before the Minister replies may I say in support of my noble friend, and partly in answer to the noble Baroness, that it would not be a new principle. Local authorities have set tables for application for rent rebates and rate rebates: to apply for family income supplement the details are set out and generally available. Therefore, it is not a new principle. It would give some guidance to potential applicants and make the situation known to the people in the area, which I think is perfectly right. The ad hoc individual decision can be just fortuitous and not always easily explained or understood. I hope the Minister will help us. If in any way we can co-operate and look at this again, of course we will.

Lord Trefgarne

My Lords, like the noble Lord, Lord Wallace of Coslany, I will speak to Amendments Nos. 39, 40, 41 and 42 which deal specifically with the Scottish dimension, and Amendment No. 43. In part these amendments are similar in intention to the amendments which the noble Lord and the noble Baroness moved to this clause in Committee. I leave aside the Scottish amendments because that is not so in regard to them. At that stage they were seeking to relieve people on low incomes and with small capital resources from local authority charges for the services that they need. Subsection (b) of the present amendment, using a different formula, has the same intention. Subsection (a) seeks to add another factor to those which local authorities must seek to take into account when assessing charges; namely the costs which may occur as a result of being disabled.

As I said when we debated the amendments in Committee on 13th December, the Government are in complete sympathy with the principle of not charging those who are living at supplementary benefit level or who would suffer real hardship if they were required to pay charges. We did not feel able to accept the amendments proposed in Committee, as there are practical difficulties in the operation of an exclusion formula of this kind on which we thought it best to consult the local authority associations. I undertook to look into the matter with the associations and, if possible, to introduce an amendment at Report stage. On this basis the noble Lord agreed to withdraw his amendment.

I can now report to your Lordships that my officials have had useful discussions with the Association of County Councils and the Association of Metropolitan Authorities on these points, but have not yet been able to agree a formula. The discussions highlighted a number of practical difficulties and the need for further work to ascertain the full effects of the amendment which the associations have agreed to undertake. I regret that I am not able, therefore, to propose a Government amendment at this stage, but I hope to be able to reach conclusions on proposals which will move in the direction desired before the Bill is discussed in Committee in another place. Our discussions with the associations will also cover factors which should be taken into account when assessing charges including the costs of disability referred to in subsection (a) of the amendment.

As far as subsection (c) is concerned, this is a new suggestion. Again, I feel it is important to seek the views of the local authority associations before imposing a statutory requirement upon individual local authorities. In view of the need for further consultation which I have outlined, I hope the noble Lord and the noble Baroness will not wish to press their amendment.

Lord Wallace of Coslany

My Lords, no; I do not intend to press the amendment. I have received quite satisfactory assurances from the noble Lord. I hope the negotiations will be successful and something very practical can be moved in another place. However, what about Amendments Nos. 41 and 42 which deal with Scotland? I beg leave to withdraw the amendment

Amendment, by leave, withdrawn.

[Amendment No. 40 not moved.]

Lord Wallace of Coslany

moved Amendments Nos. 41 and 42: Page 15, line 6, leave out ("whether generally or") Page 15, line 6, leave out ("means of the person from whom they are to recover them, in"). The noble Lord said: My Lords, perhaps the noble Lord will deal with amendments Nos. 41 and 42 which relate to Scotland. I beg to move.

Lord Trefgarne

My Lords, these two amendments deal with a rather different point, but I am afraid that the Government do not accept that they are desirable. Indeed, Amendment No. 41 would be contrary to the intention to simplify procedures and charging policy, would increase the administrative costs to Scottish local authorities and reduce the flexibility which seems both sensible and appropriate, given the scope of services covered by Section 87(1) of 1968 Act.

Clause 12(3) covers the whole range of services provided under the Social Work (Scotland) Act 1968, including residential services and services for children in care. Under Clause 12(3) authorities have some discretion to make an individual assessment which takes account of the means of the person concerned. They may also waive or reduce any charge or contribution if circumstances demand. The effect of the amendment would be to remove the existing power of social work authorities in Scotland to set an appropriate standard charge for a service and to set the standard contribution in respect of children in care. These would apply unless the person concerned could not afford the standard rate. In which case he would be assessed and pay according to his needs, or not at all if the charge or contribution were waived. This amendment would mean that Scottish authorities were not empowered to set a standard contribution for children in care, whereas the amendment in Clause 13 to Section 46 of the Child Care Act 1980 clarifies that English and Welsh authorities do have such a power.

I have already explained to your Lordships that, as a result of previous debates in Committee, we are discussing with the local authority associations in England and Wales the desirability of certain amendments to Clauses 12 and 13 and the scope for central guidelines on the operation of authorities' charging policy and in particular the question of assessment. I understand that my right honourable friend the Secretary of State for Scotland is similarly consulting the Convention of Scottish Local Authorities. In the light of these consultations such amendments as seem appropriate to Clauses 12 and 13, including the Scottish provisions, will be looked at again in another place. In the light of that assurance I hope that the noble Lord will feel able to withdraw his amendments.

Lord Wallace of Coslany

My Lords, I am obliged to the noble Lord for what he has said, and I am satisfied with the fact that Scotland will be treated equally. I beg leave to withdraw amendments Nos. 41 and 42

Amendments, by leave,withdrawn.

[Amendment No. 43 not moved.].

8.37 p.m.

Lord Wallace of Coslany

moved Amendment No. 44: Page 15, line 8, at end insert— ("(4) Recovery of charges by local authorities shall be subject to a code of practice prepared by the Secretary of State and submitted to Parliament. Such code of practice shall be subject to periodical review."). The noble Lord said: My Lords, this is quite an important issue. One of the main problems of local authority charges is the wide variation in application between areas; in other words, a person in one area can be more favourably treated compared with another person in similar circumstances in another area. There is not doubt about it that a state of unfairness exists. There is an obvious need for an agreed standard on which charges should be based.

Whilst I agree entirely that there are difficulties in reaching agreement with the local authority associations in recent consultations that have taken place, any question of unnecessary disparity must be resolved. From the information I have received, I do not think that there is any possibility of agreement being reached with the local authorities. I may be wrong, of course. Therefore, I agree that local authorities should not be subjected to too much interference from Whitehall. But there is a clear case here to remove an injustice. The Minister must have power to take action. Submission to Parliament, as mentioned in the amendment, does not necessarily mean "subject to parliamentary approval" and all that that entails. The schedule, if submitted to Parliament, will be available to Member of both Houses and to the public. That is all I ask in moving Amendment No. 44.

Lord Trefgarne

My Lords, as I have already said, we are currently discussing the implementation of the proposals on charging in the Bill with the local authority associations. I have also explained that similar consultations are being held between the Scottish Office and the Convention of Scottish Local Authorities. Both sets of consultations include the question of guidance to local authorities on the recovery of charges for their day and domiciliary services. I still think it would be preferable if such guidance were prepared by the local authority associations themselves rather than by the respective Secretaries of State, and I would not want to prevent such a development by agreeing to this amendment before the outcome of the consultations was clear. Should the associations conclude that they cannot provide guidance, it may be necessary to prepare such guidance centrally.

Codes of practice do not have the force of law in any strict sense. They are essentially for the purpose of giving guidance. It is not clear from the amendment whether what is intended is that the code should be laid before Parliament for information or that it should be subject to parliamentary approval—as, for example, in the case of regulations. The drafting therefore leaves a little to be desired. There will of course be no objection to laying any code before Parliament for information but I would be opposed to giving such guidance, which would necessarily be complex, the force of a regulation. Such a procedure would make the guidance impossibly difficult and, I fear, costly to administer. It is also not clear which local authority charges are to be covered by the proposed code. Clause 12(3) embraces both charges and contributions in respect of children in care.

In the light of these difficulties but, more importantly, in the light of the consultation to which I have referred—which I hear is not going so badly as the noble Lord may have heard—

Lord Wallace of Coslany

My Lords, I may have been misled on that point.

Lord Trefgarne

And so may I, for all that. However, I hear that the consultation is at least continuing, and while it is continuing there is certainly hope that it will be satisfactorily concluded. In the light of that consultation and in the light of the admittedly minor difficulties to which I have referred, I hope that the noble Lord will see fit to withdraw the amendment.

Lord Wallace of Coslany

My Lords, I thank the noble Lord. When I inserted the words "submitted to Parliament", I have to tell the noble Lord that nobody guided me. It was my own effort. I meant "laid before Parliament". I agree with the noble Lord that it would be very difficult to try to introduce this by regulation. I take some heart from the fact that the noble Lord hopes that the negotiations will be successful. If they are not successful, there is always the possibility of the Government making up their own mind. I thank the noble Lord for what he has said and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 [Contributions in respect of children in care]:

Lord Trefgarne

moved Amendment No. 45: Page 15, line 11, at end insert— ("(1A) The following subsection shall be inserted after section 45(1) of that Act— (1A) A person shall not be liable under subsection (1)(i) above to make any contribution during any period when he is—

  1. (a) in receipt of benefits under the Supplementary Benefits Act 1976; or
  2. (b) in receipt of a family income supplement under the Family Income Supplements Act 1970.".")
The noble Lord said: My Lords, this amendment is consequential. I beg to move.

On Question, amendment agreed to.

Lord Trefgarne

moved Amendment No. 46: Page 15, line 21, leave out ("or") and insert ("and agreed by him or, in default of agreement,"). The noble Lord said: My Lords, with your Lordships' permission, I beg to move Amendment No. 46 and to speak to Amendment No. 47. The effect of Amendment No. 46 is to reintroduce the requirement currently contained in the Child Care Act 1980 for the local authority to seek the agreement of the contributor on the amount of the contribution. Amendment No. 47 provides that where agreement is not reached within the one month period, or where agreement is reached but the contributor subsequently defaults in payment of two or more contributions, the local authority is empowered to bring the matter before the magistrates' court. I remember that we had a discussion on this issue, or a related one, during the preceding stage of the Bill. I hope that these two amendments now meet with the agreement of your Lordships. I beg to move.

On Question, amendment agreed to.

Lord Trefgarne

moved Amendment No. 47: Page 16, leave out lines 8 to 12 and insert— ("(i) has not, within the period of one month beginning with the day on which the notice was served agreed with the local authority on the amount of his contribution, or (ii) has defaulted in making two or more contributions of an amount which has been agreed with the local authority at any time,"."). The noble Lord said: My Lords, this amendment is consequential. I beg to move.

On Question, amendment agreed to.

[Amendment No. 48 not moved.]

Clause 15 [Recovery of sums due to local authority where persons in residential accommodation have disposed of assets]:

Lord Wallace of Coslany

moved Amendment No. 49: Page 17, line 4, at end insert ("knowingly and with the intention of avoiding charges for the accommodation"). The noble Lord said: My Lords, I beg to move Amendment No. 49. With your Lordships' permission, I wish to speak at the same time to Amendments Nos. 50 and 52. Clause 15 had a very difficult passage during the Committee stage, with the Minister frequently referring to the need to prevent people wilfully disposing of assets in order to avoid charges. But there was obvious confusion about what exactly constituted an asset. There is obviously the possibility of some people conspiring to avoid charges deliberately, with intent to avoid, as distinct from elderly persons handing over treasured possessions to those who have been kind and helpful to them. Such persons should not be subject to the possibility of penal action being taken against them. Deliberate intent to avoid must be proved. That is the purpose of the amendment.

A point which has occurred to me since the Committee stage is that even if Clause 15 is not amended, as it should be, there is nothing to stop conspiring relatives—who do exist—or so-called friends from indulging in pressure tactics to persuade an elderly person to part with assets before the six-month period stated in the Bill is over, because they know that the elderly person concerned is failing fast and is almost certain to go into a home in a few months' time. This is not a desirable clause but, having failed to delete it, it should be amended on the lines I have suggested, which I believe constitute an improvement. I beg to move.

Lord Trefgarne

My Lords, as always, I find myself lost in admiration for the advocacy of the noble Lord, Lord Wallace of Coslany. I am happy to accept Amendment No. 49 but not, I fear, the others to which he spoke.

Lord Wallace of Coslany

My Lords, I am almost overcome. I included the word "wilfully" because I thought that by doing so I would please the noble Lord, Lord Trefgarne. However, I willingly agree not to move Amendment No. 50. As for Amendment No. 49 being accepted, that has made my day. I shall be very generous from now on. I thank the noble Lord.

On Question, amendment agreed to.

[Amendment No. 50 not moved.]

8.50 p.m.

Baroness Jeger

moved Amendment No. 51: Page 17, line 22, leave out subsection (2). The noble Baroness said: My Lords, I intend to anticipate any criticism by the noble Lord the Minister of my drafting failures by saying straight away that I have put down this amendment in a search for information. Amendment No. 51, which I beg to move, seeks to leave out subsection (2), which refers to Section 22 of the National Assistance Act 1948 and to cash and any other asset which falls to be taken into account when assessment is made under it.

I have experienced a great deal of difficulty with this, and felt that I should ask for the help of the noble Lord the Minister because the people who have to implement this provision may also be puzzled. It seems to me that Section 22 of the National Assistance Act 1948 was subsumed by paragraph 20 of Schedule 6 to the Ministry of Social Security Act 1966, and so I turn to that Act having checked the references with the Library, because I do not have enough lawyer friends to do these things for me. I find that that Act says, If person has deprived himself of any resources for the purpose of securing benefit or increasing the amount thereof those resources may be taken into account as if they were still his.". That is different from the present Bill, which does not say that the resources "may" be taken into account but that they "shall" be taken into account. Therefore, we should not cross-reference to Section 22 of the National Assistance Act 1948, which has been subsumed by the Ministry of Social Security Act 1966, when that Act uses the word "may" and not the word "shall". Paragraph 29 of Schedule 2 to the 1966 Act states quite clearly: a person shall be deemed for the purposes of this schedule to own an asset if he is absolutely entitled in possession to the whole beneficial interests therein …". I really do not know what this means.

At Committee stage the noble Baroness, Lady Masham of Ilton, and I were particularly anxious to find out what was the definition of "assets" or of "resources". We were given no definition. We had a very interesting debate about the value of the noble Baroness's beautiful ring and of my old motor car. We secured no clear answer to either example. The noble Lord the Minister who replied, Lord Lyell, made clear that he thought this would refer only to substantial assets. As we read in the Official Report for 13th December (col. 401), he said that local authorities operating this clause will have to go through two hoops: first, that there is considerable value.". What legal authority did the noble Lord, Lord Lyell, have for saying that? I have gone through all the statutes and references and can find nowhere a statement that there has to be "considerable value". To the contrary, the only definition given is that the person is absolutely entitled in possession". That raises doubts in the minds of people as to what is meant by the noble Lord, Lord Lyell, in his reference to "considerable value"; or whether there is to be a check list of possessions which a local authority may take into account, and whether they can demand to know what has happened to them. We raised the question of whether people could give away possessions which they would like to keep in the family, or whether all the items we were in possession of six months before entering a home counted.

There is another dangerous aspect to this provision. It could be that an elderly person might dispose of assets, perhaps pressed by the family, more than six months before he or she goes into a home, so this does not apply. Then, come the date when it was expected that the elderly person would go into a home, there may not be a place for him or her and this person would then be left without assets or a home. That is another area of confusion for some of the people who are working in this area. My noble friend has referred to the phrase, "the deliberate abandonment of assets", and we accept that this phrase is taken from previous legislation—first entering parliamentary parlance, as the noble Lord quite rightly pointed out, in the Supplementary Benefits Act 1976, in Schedule 1 to that Act. But paragraph 28 of Schedule 1 states only that, those resources may be taken into account …". If the noble Lord the Minister is resting his case on the Supplementary Benefits Act 1976, why is that not the cross-reference in this Bill?

I am not seeking to pick a quarrel with the noble Lord, but I cannot understand why the cross-reference is to the National Assistance Act 1948. If the unfortunate people who have to implement the provisions of this Bill are referred to the National Assistance Act 1948, they will then have to pursue their studies by referring to the Ministry of Social Security Act 1966, and then they will find themselves led on through a jungle of legislation to the Supplementary Benefits Act 1976. Should the cross-reference not be to more recent and relevant Acts? I am sure there is a good reason why my confusion is misplaced, but if that point can be explained it will help many people besides myself. Surely there must be a clearer way of informing people of the Government's intentions, even if one agreed with the intentions, which I do not. Surely there could be some clarity, even if unwelcome clarity.

In the Official Report for 13th December (col. 398) the noble Lord the Minister made it clear that this section applied only to persons who deliberately deprived themselves of assets; but the word "deliberately" does not appear in the clause. That is another puzzle to some of us. This amendment calls into question the whole position, but I know that I must limit myself to the specific content of the amendment. I have tried to clarify the position, but I am unable to do so, and that is why I need help. I wondered whether there was any information which prompted the inclusion of this clause in the Bill. For example, I cannot help wondering whether there would be an orgy of grandmothers all queueing up at Christie's and Sotheby's selling their tiaras before they moved into old people's homes. On 22nd December (col. 1157) I asked a Question for Written Answer. I asked: How may prosecutions have been brought to the last convenient date against persons deliberately abandoning assets prior to claiming social security benefits …". The noble Lord replied: None; the deliberate abandonment of assets for the purpose of securing supplementary benefit or reducing the charge for local authority accommodation … is not a criminal offence". I do not know what were the powers of enforcement in Section 22 of the National Assistance Act. I had to ask the noble Lord again on 17th January—

Lord Trefgarne

My Lords, I apologise for interrupting, but this is rather an important point. Will the noble Baroness, Lady Jeger, be good enough to read out the subsequent sentence in the Written Answer I gave to her Question?

Baroness Jeger

I will read it all—I was only trying to save the time of your Lordships. The noble Lord, Lord Trefgarne, stated: None: the deliberate abandonment of assets for the purpose of securing supplementary benefit or reducing the charge for local authority residential accommodation provided under Part III of the National Assistance Act 1948 is not a criminal offence. Full stop: end of Written Answer. But now we are cross-referencing to the National Assistance Act in this present clause as if it were an offence and as if there were going to be possible prosecutions. In fact, during the course of the previous debate the noble Lord said that it would be for the courts to decide on this issue, when local authorities felt that this rule had been breached. If it is a matter for the courts, presumably we are now making a criminal offence of something which was not a criminal offence under Section 22 of the National Assistance Act.

So, eager for knowledge—the noble Lord will be glad to know this is my last point—I put down another Question for Written Answer on 17th January 1983 (col. 1272) to ask: In view of the fact that the deliberate abandonment of assets…is not at present a criminal offence, what sanctions are applied to persons believed to have deliberately abandonded assets for the above purpose? I will read the whole of the noble Lord's Answer: The sanction against a person who deliberately abandons his assets is that he may be treated as still possessing them. For supplementary benefit claimants that could mean loss of benefit, but for Part III residents it might result in an accumulating debt of unpaid charges. Although there is no centrally-held information, I understand that the powers to take into account abandoned assets are used only rarely. If this is happening only rarely, why are we to have these changes; why cannot we leave these things as they are?

I am not condoning deliberate abandonment of assets or cheating in any way. I just do not understand why the change is being made at a time when the Minister admits that powers to take into account abandoned assets are used only rarely, and why we are now proposing to make an offence which could come before the courts that which was not an offence in the legislation to which there is cross-reference in subsection (2) of Clause 15. I apologise if I have produced some confusion, but how much more confused will those people be who will not have had the pleasure of listening to the noble Minister? I beg to move.

Baroness Gardner of Parkes

My Lords, I should like to follow up the speech made by the noble Baroness. I questioned earlier, and I now question again, under this amendment of hers, the need for this subsection at all. I think the whole issue of abandonment of assets has come up due to pettiness and jealousies that have arisen. The person who goes in and has no funds of any sort does not have to meet any charge: the person who has ample funds meets the charge. In my experience, those who have been found to divest themselves of assets are those who have had a small amount of savings and who have felt that they would like to give them to someone—either a relation to help them in their life or to some other person. It seems to me there is a whole lot of jealousy and envy that has created the pressures that have brought the Government to bring this forward on what is really a very minor matter. I also think that those persons who have saved small assets often feel quite bitter, because they have all their lives paid their rates in full to the local authority and they feel that this is some return they are entitled to at the end; whereas those who are paying no charges probably also had a complete rate rebate, possibly a rent rebate, and have had the benefit all their lives. Perhaps it is unfortunate that they were in a position to require those benefits; but it seems to me that the situation arises that the thrifty persons who have small assets will possibly be penalised, and their families.

In Australia at the moment all the old-age pensioners are creating the greatest boon for the travel industry, because they are all trying to spend all their money on travel while they can, and enjoy it. This line is being promoted. We will have the same thing here. All the people who think they are getting to the point of going into any sort of Part III accommodation will be out living it up—and perhaps that will not be a bad thing for them.

Lord Trefgarne

My Lords, your Lordships will forgive me if I do not follow my noble friend half across the world to Australia to discuss the benefits to the travel industry of the arrangements that operate in that country. As I have said previously, during Committee stage and again today, subsection (2) was introduced to ensure that the definition of assets for the purposes of these recovery provisions was the same as in the statutory provisions which govern local authorities charging procedures. In other words, the provisions of this clause can operate only where a local authority has decided, in the course of making an assessment of charges, that the resident concerned has deliberately divested himself of a relevant asset. Without the limitations of this subsection the recovery provisions of this clause could operate on any asset of which a resident may have deprived himself, whether or not that asset had been taken into account by the authority when assessing his ability to pay for the accommodation. I should like to underline the point, therefore, that we are narrowing the range of assets that could be taken into account for this purpose.

The present charging procedures rest for their interpretation of scope upon the regulations which govern claimants under the supplementary benefits scheme. But we intend to make separate regulations later this year under the provisions of Section 22(5) of the National Assistance Act 1948, which, contrary to what the noble Baroness suggested—and I do not pretend that following these matters is at all easy—has now been amended by the Social Security Act 1980. There has of course been a whole list of measures since 1948 relating to these matters, and I do not complain that the noble Baroness does not quite get it right when she refers to the latest amending legislation. Indeed, I am not even 100 per cent. certain that I have got it right, but so I am advised. The regulations which are to be made later this year will express the requirements specifically in relation to charges for Part III accommodation. Subsection (2) will link those regulations with the powers of recovery in this clause.

During Committee stage several noble Baronesses, and I think one or two noble Lords, wanted to know whether personal possessions such as jewellery were regarded as assessable capital. Subject to certain exceptions, such possessions are, I understand, disregarded. The exceptions include recent acquisitions which are in the nature of an investment, but this detail will be re-stated when we make the new regulations, which will put the matter beyond any doubt.

The noble Baroness, Lady Jeger, also asked about the confusion over "may" on the one hand in the supplementary benfit legislation and "shall" in the Bill. The reference to the National Assistance Act is, as I said, Section 22(5). That is, of course, the power under which the regulations will be made. Section 22(5) itself does not, therefore, specify the detail. The detail comes in the regulations and, as I said, new regulations are to be made later this year. I assure the noble Baroness that the exchanges that have occurred tonight and during the earlier stages on this Bill will be taken fully into account in framing the regulations.

The noble Baroness also asked about the criminal aspects of this matter. These are not criminal matters, of course, and the provisions do not provide for any criminal liability. The local authority is empowered to take account of the assets abandoned and to assess the resident accordingly. If the charge is not paid the resident will be liable under civil law, so it becomes a civil matter not a criminal one. The noble Baroness asked about the sanction in the Written Answer to which she referred. The essential sanction is the loss of benefit or the need to pay charges, but occasionally a situation can arise where the matter becomes one for the civil law. In general, that is not so, and I hope that in the light of this explanation—

Lord Winstanley

My Lords, before the noble Lord concludes, can he tell the House whether the inquiries which his department must have made into this whole matter before framing this legislation have given the noble Lord the kind of information which will enable him to tell the House anything about the frequency with which he thinks this power may be required? I ask that question because my experience as a general practitioner dealing with old people is that the country s not full of old people with a compelling desire to give everything away. Indeed, my experience is to the contrary. Can the noble Lord say how often he thinks this power will be required?

Lord Trefgarne

My Lords, I told the noble Baroness in the earlier Written Answer to which she referred that we have no record of the power being used, certainly not recently. I think the power may well have a deterrent effect. That does not refer to the old people themselves, because I readily accept that 99.99 per cent. of old people are not concerned with divesting themselves of assets for this improper purpose. What I fear is the case of an old person, perhaps confused and, sadly, on the point of going into a home, being leaned upon by an unscrupulous relative or close friends to divest himself of assets, perhaps to the friends or relative themselves. That is what we are seeking to prevent and I hope, therefore, that your Lordships will agree that these measures should proceed.

Baroness Jeger

My Lords, I thank the noble Lord for the kindly way in which he has dealt with my insufficiencies, but I still think that there will be some difficulties for people who try to understand this Bill. I just leave two problems with the noble Lord. He assures us that Section 22 of the National Assistance Act 1948 is the basic Act containing the powers under which regulations will be made. Would it not be helpful to have something in the Bill to that effect so that the assessment of assets will be made under regulations to be prepared and laid by the Secretary of State? There is nothing in the Bill as it stands which refers to regulations for assessing assets.

Moreover, I hope the noble Lord can look again at the definition of "assets". I believe he said that jewellery did not count. I do not know what statutory authority exists for saying that jewellery does not count. Would I be all right if, instead of disposing of my old motorcar, I bought a piece of jewellery, which I do not normally bother with? Would that be all right? These arc practical questions. I cannot find any reference anywhere which excludes jewellery. I hope that before the Bill passes into law some guidance will be given to people as to what is regarded as an asset or as a resouce, because existing legislation says that something is an asset if the person "is absolutely entitled in possession". That could mean anything. All I am asking is for some clarification. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 52 not moved.]

Lord Trefgarne

moved Amendments Nos. 53 and 54: Page 18, line 3, leave out ("section") and insert ("Part of this Act") Page 18, line 5, leave out ("section") and insert ("Part of this Act"). The noble Lord said: My Lords, for the convenience of the House, I should like to move these amendments together. These are drafting amendments which pave the way for references to Part III in Clauses 16 and 17 in place of specific references to the relevant statutes in each case. I beg to move.

On Question, amendments agreed to.

Clause 16 [Arrears of contributions charged on land]:

9.14 p.m.

Lord Wallace of Coslany

had given Notice of his intention to move Amendment No. 55: Leave out Clause 16. The noble Lord said: My Lords, here we are back with Fred Karno again. Here am I, poor little me—intending to move that we leave out Clause 16 in order to raise some very complicated issue on Clause 16, and right at the last minute a starred amendment is tabled by the Government deleting Clause 16 and giving me another complicated clause. The issue that I wanted to raise was complicated enough, but this has certainly put me in some difficulty. God knows! I should have been in difficulties trying to explain my question originally but under these ridiculous circumstances, with the Government causing us so much inconvenience, I do not intend to debate this matter or to raise my point, because I must relate it to the new clause which has so suddenly appeared on the Marshalled List with a star against it. Therefore, under some degree of protest I shall not move the amendment at this stage, but will raise it again on Third Reading.

[Amendment No. 55 not moved.]

Lord Trefgarne

moved Amendment No. 56: Leave out Clause 16 and insert the following new clause—

>"Arrears of contributions charged an interests in land in England and Wales.

(16.—(1) Subject to subsection (2) below, where a person who avails himself of Part III accommodation provided by a local authority in England, Wales or Scotland—

  1. (a) fails to pay any sum assessed as due to be paid by him for the accommodation; and
  2. (b) has an interest in land in England or Wales,
the amount of the debt in respect of the sum assessed as due to be paid shall be a charge on his interest in the land.

(2) In the case of a person who has interests in more than one parcel of land the charge under subsection (1) above shall be upon his interest in such one of the parcels as the local authority may determine.

(3) Any charge under this section on an interest in land shall vest in the local authority who provided the Part III accommodation of which the owner of the interest availed himself.

(4) Any such charge shall in the case of unregistered land he a land charge of Class B within the meaning of section 2 of the Land Charges Act 1972 and in the case of registered land be a registrable charge taking effect as a charge by way of legal mortgage.").

The noble Lord said: My Lords, the noble Lord, Lord Wallace, must have realised when he saw our amendment on the Marshalled List that we were seeking only to be of assistance to the noble Lord in not only tabling an amendment which included the very proper suggestion that he raised, that we should leave out Clause 16, but that in addition we should add a new and enhanced and improved Clause 16, and I shall explain that to your Lordships now.

The substitute Clause 16 which the Government are now seeking to incorporate has, I am afraid to say, the same intention as the existing clause. I shall draw your Lordships' attention only to the small drafting changes that the new clause contains.

The charge under the existing Clause 16 is a local land charge registrable in the local land charges register kept by the local authority in whose area the land affected by the charge is situated. The main change is that the substitute clause will—instead of a local land charge—provide for the imposition of a land charge registrable in the register of land charges kept by Her Majesty's Land Registry. The substance of this amendment therefore is to substitute one charge for another. The reason for this change is that the existing clause would have introduced a new concept into the operation of the Local Land Charges Act 1975—namely, the attachment to a property of a debt not directly related to that property. The substitute clause will enable a charge to be imposed on a person's interest in the land, not on the land itself, thereby ensuring that the reversioner of the land is not affected by the charge when the debtor's interest has expired. The charge will be vacated once the outstanding sum is paid to the local authority.

The second change is in subsection (2) which ensures that, where a person has more than one interest in land, the local authority will he able to charge only one of his interests. The third change is that Clause 16 will extend to Scotland. This will enable a local authority which provides accommodation in Scotland to a person with an interest in land in England or Wales to impose a charge on that land in respect of any debts which arise from unpaid charges. The geographical location of the land will therefore determine whether a local authority seeks security for the debt under this clause or under Clause 17 which, in the tabled Amendment No. 57 makes corresponding provision for authorities in England and Wales. I beg to move.

Lord Wallace of Coslany

My Lords, all that I will say about it is that the noble Lord read his brief beautifully, and in so doing blinded me with science. Therefore, I must defer comment on the matter until we get to Third Reading, because the new clause is even more mystifying than the original one.

On Question, amendment agreed to.

Clause 17 [Arrears of contributions charged over interest in land in Scotland]:

Lord Trefgarne

moved Amendment No. 57:

Leave out Clause 17 and insert the following new clauses

("Arrears of contributions secured over interest in land in Scotland.

17.—(1) Subject to subsection (2) below, where a person (hereinafter referred to as the debtor) who avails himself of Part III accommodation provided by a local authority in Scotland, England or Wales—

  1. (a) fails to pay any sum (hereinafter referred to as the debt) assessed as due to be paid by him for the accommodation; and
  2. (b) has an interest in land in Scotland (as defined in section 9(8) of the Conveyancing and Feudal Reform (Scotland) Act 1970),
the local authority may make in their favour and record in the General Register of Sasines or, as appropriate, register in accordance with the Land Registration (Scotland) Act 1979 an order (hereinafter referred to as a charging order) over that interest in land in respect of the amount of that debt.

(2) In the case of a debtor who has more than one interest in land a charging order shall be over such one of those interests as the local authority may determine.

(3) On being so recorded or, as the case may be, registered, a charging order over an interest in land shall create a right which shall be deemed to have been granted by the debtor in favour of the local authority over that interest for the purpose of securing any debt due or to become due by him to the local authority in respect of the provision of the Part III accommodation referred to in subsection (1) above, together with interest thereon as specified in section 18 of this Act, and the local authority shall intimate to the debtor in writing that they have made and recorded or registered the order and inform him of its effect.

(4) Where the charging order is over an interest in land in which the debtor is uninfeft it shall be as valid as if he were infeft in that interest.

(5) Charging orders and the discharge thereof shall be in such form or forms as the Secretary of State may by order prescribe and he may also by order make provision for ascertaining the amount due under the charging order at any time.

(6) The provisions of Part II of the said Act of 1970 shall apply to a charging order under this section as if it were a standard security in a form prescribed in Schedule 2 to that Act to such extent and with such modifications as the Secretary of State may by order prescribe.

(7) The power to make an order under subsections (5) and (6) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Lord said: My Lords, I referred to this amendment a moment ago. I beg to move.

On Question, amendment agreed to.

Clause 18 [Interest on sums charged on land or over interest in land]:

Lord Trefgarne

moved Amendment No. 58: Page 19, line 27, leave out ("land or") and insert ("or secured"). The noble Lord said: My Lords, this amendment is consequential. I beg to move

On Question, amendment agreed to.

Lord Trefgarne

moved amendment No. 59: Page 19, line 28, leave out ("section 16 or 17") and insert ("this Part"). The noble Lord said: My Lords, again, this is consequential. I beg to move.

On Question, amendment agreed to.

Schedule 8 [Social security adjudications]:

9.20 p.m.

Baroness Jeger

moved Amendment No. 60: Page 62, line 17, at end insert ("or is otherwise legally qualified"). The noble Baroness said: My Lords, your Lordships will he glad to hear that this amendment is less complicated than the last one with which I bored your Lordships. The intention of the amendment is, at page 62, line 17, at the end to insert: or is otherwise legally qualified". I have proposed this because the clause refers only to barristers and solicitors and we thought that that was very restrictive. In moving this amendment, I was particularly persuaded on hearing from the Dean of the Faculty of Law in Cardiff, who has been chairman of tribunals for many years but who, with his legal knowledge and experience, apparently, under the clause as it now stands, would be excluded from continuing as a chairman. This seems rather absurd in view of the fact that his former students can go on to take chairmanships under this clause but the professor of law, who taught them the law that they are supposed to understand, is to be excluded. If I am wrong, I am sure that the Minister will correct me.

However, this raises the whole question whether we need to limit the chairmanships so narrowly. I must add very quickly that I have also received representations—as I believe have other noble Lords—from the chairmen of supplementary benefit appeal tribunals, who have asked that we should take the whole question of legal qualification away, because they maintain that many of them are working from their wisdom and their experience, and not apparently failing badly in their chairmanships. However, we recognise that that is a wider question and it might well be examined at a later stage. Today we are only asking that the words: or is otherwise legally qualified should follow "barrister, advocate or solicitor". I beg to move.

Lord Trefgarne

My Lords, it is the Government's policy in relation to tribunals of the nature of social security appeal tribunals that only individuals with appropriate professional legal qualifications who have a certain standing should be appointed as chairmen. At present, with one exception—and I fancy that that is the one who wrote to the noble Baroness—all chairmen of national insurance local tribunals are barristers, advocates or solicitors and, following a recommendation by Professor Bell, qualified lawyers are appointed as chairmen of supplementary benefit appeal tribunals wherever possible. The case for having legally qualified chairmen to consider supplementary benefit appeals has also been strengthened by the change to a regulated scheme. We have consulted the Lord Chancellor's departments about what qualifications to require for social security appeal tribunal chairmen, and we think that the professional legal qualifications specified in the Bill are an appropriate minimum.

However—and I believe that this will be of some comfort to the noble Baroness—powers are being taken in the Bill to make transitional regulations allowing existing chairmen who are not barristers, advocates or solicitors to be appointed as chairmen of the new tribunals for a transitional period from the commencement of the legislation. That will allow existing chairmen to he retained for such period as may be specified. We are currently thinking in terms of five years, but this may be affected by how quickly we can find suitably qualified lawyers for these posts.

I hope that that explanation will satisfy the noble Baroness and that she will not wish to press her amendment. But in any event I understand that there is a small technical deficiency to it in that it would negate the preceding words which require chairmen to be lawyers of five years' standing. However, I never seek to argue against amendments simply on mere drafting or technical grounds. I hope that the noble Baroness will be satisfied with the transitional arrangements to which I referred.

Baroness Jeger

My Lords, I thank the noble Lord, and, yes, I am satisfied. But I want to ask just one question. Let us suppose that a qualified barrister or solicitor who has been in practice then turns, as I know people have done, to the academic world and becomes a professor of law. Is he then disqualified or does the fact that some years before he was in practice as a barrister or solicitor cover him even if he has gone into academic work in a faculty of law?

Lord Trefgarne

My Lords, if I may speak again on this matter, I suspect that the five years that he served as a practising barrister before he went into academic life would enable him to be qualified for these appointments. I speak off the top of my head, and it may be wrong, but if it is wrong I shall write to the noble Baroness.

Baroness Jeger

My Lords, in view of what the Minister has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lyell

moved Amendment No. 61: Page 63, line 17, after second ("and") insert ("other"). The noble Lord said: My Lords, if I may, I should like to speak to Amendments Nos. 61, 78, 80, 90 and 96 together. These are technical amendments to the provisions which concern social security adjudication. Briefly to go through them for your Lordships, Amendment No. 61 clarifies the position as far as regional chairmen are concerned, and makes it clear that they will also be full-time appointments. Amendment No. 78 clarifies which posts are to be covered by the House of Commons Disqualification Act, but it does not alter the coverage specified in the existing provision.

Amendment No. 80 is a consequential drafting amendment to take account of the fact that subsection (3) of Section 20 of the Supplementary Benefits Act 1976 is being repealed. Amendment No. 90 omits a repeal that is now otiose. It is inappropriate to repeal the old Section 6(1) since a new section is being substituted for it. Finally, Amendment 96 is a consequential drafting amendment to take account of the fact that Section 15 of the Supplementary Benefits Act 1976 is being repealed. I beg to move Amendment No. 61

On Question, amendment agreed to.

Lord Trefgarne

moved Amendment No. 62: Page 63, line 30, at beginning insert ("Subject to sub-paragraphs (4A) to (4E) below,") The noble Lord said: My Lords, essentially this amendment is to meet a point put to us by the noble Lord, Lord Winstanley, during the earlier consideration of this Bill relating to the upper age limit for holders of these posts. I shall not go into the details unless noble Lords wish me to do so. We are, in essence, accepting the advice of the noble Lord, Lord Winstanley. I beg to move.

Lord Winstanley

My Lords, I have no wish to protract the proceedings further beyond saying that I am most grateful to the noble Lord for what he has done.

On Question, amendment agreed to.

Lord Trefgarne

moved Amendment No. 63: Page 63, line 32, at end insert— ("(4A) Subject to sub-paragraphs (4B) and (4C) below, a person appointed to such an office shall vacate his office at the end of the completed year of service in which he attains the age of 72. (4B) Where the Lord Chancellor considers it desirable in the public interest to retain such a person in office after the time at which he would be required by sub-paragraph (4A) above to vacate it, the Lord Chancellor may from time to time authorise the continuance of that person in office until any date not later than that on which that person attains the age of 75. (4C) A person appointed to an office under this paragraph may be removed from office by the Lord Chancellor on the ground of misbehaviour or incapacity. (4D) No person appointed to an office under this paragraph shall either directly or indirectly practice as a barrister, advocate or solicitor or as an agent for a solicitor. (4E) Where the Lord Chancellor proposes to exercise a power conferred on him by sub-paragraph (4B) or (4C) above, it shall be his duty to consult the Lord Advocate with respect to the proposal.") The noble Lord said: My Lords, this is consequential. I beg to move.

On Question, amendment agreed to.

Lord Trefgarne

moved Amendment No. 64: Page 66, line 21, at end insert—

    cc787-98
  1. (PART VA MEDICAL BOARDS 5,802 words
    2. c798
  2. Procedure of the House 20 words