Lords Sitting of 14 June 1990

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Lichfield.): The LORD CHANCELLOR on the Woolsack.

Tributes to the late Lord Ponsonby of Shulbrede
The Lord Privy Seal (Lord Belstead): My Lords, the whole House will have been saddened to hear of the death of Lord Ponsonby of Shulbrede, Opposition Chief Whip in the House since 1982. Over the past eight years Tom Ponsonby played a key role in the life of your Lordships' House. I know that on all sides we feel that he served the whole House with great devotion and integrity and that in Tom we had, and we have lost, a friend.
Through his skilful reconciliation of the demands of party politics and parliamentary duty, he ensured that the constitutional role of opposition was carried out in a way which did credit to all sides and all sections of opinion. A man of strong convictions himself, he was also a reconciler of opinions. In Tom Ponsonby we mourn the passing of a master of the art of securing agreement.
Outside the House he fulfilled many public duties for which his background and abilities had fitted him. His experience of local government was extensive and he had been an alderman of both the Kensington and Chelsea council and of the Greater London Council. He also played a leading role in the tourist industry in this country and particularly here in the capital.
We share the loss with noble Lords in his own party. Not only will Tom Ponsonby be remembered with great affection and respect. As Opposition Chief Whip he occupied a position of great importance. The way in which he carried out his responsibilities will leave its imprint on your Lordships' House for the future. I speak for us all in expressing our deepest sympathy to his wife, Maureen, and in paying tribute to Tom Ponsonby today.
Lord Cledwyn of Penrhos: My Lords, we are grateful to the noble Lord the Leader of the House for his generous tribute to our noble friend Lord Ponsonby. Although he had been ill for some weeks, his death came as a distressing shock to us all yesterday. It is difficult to realise that he is no longer with us.
Tom Ponsonby came of a long line of distinguished public servants and his own life was one of unremitting service to public causes. As the noble Lord said, he made a notable contribution to London local government, becoming a councillor in Kensington at the age of 26 and ending as chairman of the Greater London Council, 20 years later. He was active in many other fields, not least the Fabian Society, and he supported a large number of charities.
402
When I started working with him in this House, I quickly realised that Tom knew everyone in London and everyone knew him. It was a pleasure and a privilege to work with him as our Chief Whip. As all of us know, the office involves heavy responsibilities, long hours and difficult problems, some of them insoluble. Tom Ponsonby coped with these with skill and good humour, and always with consideration for his colleagues.
He was recently asked in an interview which part of his life he had most enjoyed. He answered without hesitation, "My work in the House of Lords". He was a most devoted servant of this House. We have lost a fine parliamentarian and a most lovable colleague and friend. We send our deep sympathies to Maureen and the family.
Lord Jenkins of Hillhead: My Lords, I join in the sorrow and sympathy which have been so appropriately and poignantly expressed by the noble Lords, Lord Cledwyn, and the Leader of the House. The House feels an exceptional sense of collective loss. Yesterday afternoon when the news of Tom Ponsonby's death came through, there was an almost physical atmosphere of deprivation and dismay in the corridors, particularly those which he most frequented, such as I have never known before in this House.
I first knew Tom Ponsonby over 30 years ago when he was a Kensington councillor and an active member of the Fabian Society. He later became general secretary of that distinguished organisation. In that office he succeeded not only the almost legendary E. R. Pease of 100 years ago but also in the more recent past such diverse figures as John Parker, later Father of the House of Commons, the noble Lord, Lord Northfield, Mr. William Rodgers and Mrs. Shirley Williams. In Fabian circles he was widely and affectionately known as "Hon Tom Pon". The soubriquet reflected something both of his enthusiastic informality and of his distinguished provenance. His great-grandfather was a notable adviser and courtier to Queen Victoria; his grandfather, at the beginning of his career, was private secretary to Campbell-Bannerman, his successor as MP for the Stirling districts, and then a Labour Minister and Leader of the Opposition in this House for four years.
Tom Ponsonby fully maintained that tradition of public service, whether as Fabian secretary, chairman of the Greater London Council or Opposition Chief Whip in this House. More than that, he was an eminently lovable man. We shall all miss him very much. On behalf of those on these Benches, I extend my deepest sympathy to his wife and the other members of his family. I also extend my sympathy, if I may be permitted to do so, to the noble Lord, Lord Cledwyn. It is a heavy blow for him and he will not find it easy to obtain a replacement who will serve him and the whole House as well as did Tom Ponsonby.
Baroness Hylton-Foster: My Lords, the Cross-Bench Peers would, I know, like to be associated with the tributes already paid to Lord Ponsonby. As Cross-Bench Peers are not members

403
of the usual channels, we did not have regular contact with him, but whenever there were any little difficulties that had to be sorted out, he was always very helpful. He was also a patient listener. He was a delightful character, helpful to everyone, although he held what must have been a difficult and exhausting job. We should like to join with others in sending our sympathy to his relatives.
The Lord Bishop of Lichfield: My Lords, as a newcomer to your Lordships' House, I did not have the pleasure of meeting Tom Ponsonby. Yet in addition to what we have heard, I have been taken aback by the clear sense of shock and deprivation which other noble Lords have mentioned, making it quite clear that he was a person who was held in the highest regard. I know that he was a man who never allowed differences of political view to cloud personal friendships. He was highly respected both outside as well as within his own party. I am told, too, that he held your Lordships' House in great affection. I know that he will be greatly missed for his sagacity and his good humour. It is an honour for me as a newcomer to pay him tribute and likewise to extend my sympathy to his family.
Baroness Llewelyn-Davies of Hastoe: My Lords, I should like to say a few words about Tom Ponsonby because when I was Opposition Chief Whip he was my deputy and later he of course succeeded me. I had known him and worked with him in the Fabian Society days and in general party matters for nearly 30 years. I suppose we were rather old-fashioned socialists in those days. We worked in a world of antiquated duplicating machines and piles of dusty books and pamphlets. That world was punctuated by fighting fierce elections, mostly for perfectly hopeless seats. He was a splendid colleague. He was hard working, loyal and always kind. He had a quality of originality which made him remarkable. He was an unusual man. He was dedicated, very private, and gently eccentric if one may call it that. Our party loved him and valued him highly.
Above all he was a complete and natural House of Lords man. The whole House will greatly miss him, especially his instantly recognisable presence striding down the corridors and presiding over the Division Lobbies. He always lightened solemn moments with his warm humour. His tragic and almost unbelievable death came much too soon. Above all we grieve deeply for Maureen and his family and we send them our heartfelt sympathy.
Lord Diamond: My Lords, I hope I may be allowed to contribute a few words on this sad occasion of the death of a good friend and a most likeable man. I, too, have known him for over 30 years. I found him one of the easiest of men to work with whom I have ever come across because he seemed to bring to his work not only the qualities which we have all observed but also a fund of goodwill, understanding and patience which he could draw on to make difficult moments a little easier.
It is especially poignant to me, and I daresay to all other noble Lords who have well exceeded the
404
allotted biblical span of life, that we should pay tribute to a man who has died at a comparatively young age when he had so much left to contribute to life, to his family's happiness and to the work of your Lordships' House. I hope it will be taken as a token of my sincerity when I say that I very much hope his wife and family will have the strength to undergo the ordeal which faces them.
The Earl of Bessborough: My Lords, I wish to say a few words as a relation of the late Lord Ponsonby. He was a great friend of mine and he was indeed my noble kinsman. Although he was on the other side of the House he had no objection to my saying that he was my noble kinsman. I am moved by his tragic death. The noble Lord was a great friend of mine and he lived in a part of the world not far from where I live. His grandfather, Arthur Ponsonby, who I believe was the first Leader of the Labour Party in your Lordships' House, was a close friend of my father. They were devoted to one another. I can tell your Lordships that it is not only noble Lords on all sides of the House who greatly regret his passing but also all the Ponsonby family.
Lord Cocks of Hartcliffe: My Lords, Tom Ponsonby was one of my sponsors when I was introduced into your Lordships' House. My other sponsor was the noble Lord, Lord Denham. I was proud and privileged to be introduced by two Chief Whips. I asked them both to introduce me because that epitomised to me the importance of the usual channels in the running of the parliamentary system. I got to know Tom well through the usual channels long before I came here, through my work in another place. I was not only struck by his great good humour but also by his tolerance. Long before I came to your Lordships' House he taught me the importance of the usual channels in the system, particularly in relation to your Lordships' House, and the essential part they play in the running of our Constitution. I wish to extend my tribute to him and to his work. I also wish to extend my sympathy to his family.

Academics: Migration
3.16 p.m.
Baroness David Baroness David asked Her Majesty's Government:
Whether they now accept that there is a brain drain from this country, especially in terms of the quality of those leaving, and if so whether they propose any action.
Baroness Blatch: My Lords, the best evidence available, from the universities statistical record, does not support the view that there is a net outflow of academics overseas or that the quality of those leaving is higher than those remaining. The Government have invited the Committee of Vice-Chancellors and Principals to provide better information. We await its findings with interest.
Baroness David: My Lords, I thank the Minister for that reply. Although the overall figures may sustain what she says, is it not a fact that it is the quality of those leaving that causes concern? Every year since 1981 more readers and senior lecturers

405
have left than have arrived. Some key professors, particularly in science and engineering, have also left. Does that not cause the Government concern?
Baroness Blatch: My Lords, in my first response I said there is no evidence that the quality of those leaving is higher than that of those remaining. My information is contrary to that of the noble Baroness. The figures that I have seen do not uphold what she has said about a net outflow overseas.
Baroness Blackstone: My Lords, is the Minister aware that over one-fifth of the Fellows of the Royal Society live abroad? Does she not agree that the loss of those most eminent scientists is damaging to the nation? Will she say what the Government propose to do about that?
Baroness Blatch: My Lords, again my evidence is at odds with that of the noble Baroness. I have figures on the Fellows of the Royal Society if the noble Baroness will bear with me while I look for them.
Baroness Blackstone: My Lords, I can help the noble Baroness by assuring her that the figures I have provided are accurate.
Baroness Blatch: My Lords, we came upon this matter rather quickly. However, I shall have to find the figures and write to the noble Baroness as I must not keep the House waiting.
Lord Gisborough: My Lords, will my noble friend say how this situation compares with the time when taxation was high? Is the outward migration less now or is it the same?
Baroness Blatch: My Lords, there is a net inflow of academics into this country.
Baroness David: My Lords, perhaps I can help the noble Baroness. The official figures which I have show that there has been a net outflow of senior lecturers in the past nine years. I shall have great pleasure in showing the noble Baroness those figures later. Is it not another cause for anxiety that a number of postdoctoral and senior research members of university teams are leaving? That is especially worrying as regards a lack of staff in the future in the departments that they are leaving. Is not that departure the result not only of less money but also of fewer facilities, fewer opportunities and less money for research here, whereas in the United States and Canada there are far better facilities and much more money is available for research?
Baroness Blatch: My Lords, a basic principle is being ignored; namely, that we live in a free country and we must not restrain people if they wish to go abroad or if they wish to come into this country. Even so, the figures show that fewer than 10 per cent. of former research council supported students take up academic posts abroad. The figures for post-doctoral academics mentioned by the noble Baroness do not stand up to the evidence that we have.
Baroness David: My Lords, all I can say is that we must have different figures. I shall have great pleasure in consulting the noble Baroness afterwards.
Baroness Blackstone: My Lords, does the Minister agree that poor pay and poor facilities must be a disincentive for academics? Is she not aware of the fact that many academics feel deeply demoralised by the fact that their pay has fallen more than that of any other public sector group in this country over the past 10 years? Can she say what the Government will do to rectify the problems of the universities and polytechnics in paying their staff adequately?
Baroness Blatch: My Lords, I cannot agree with the noble Baroness. The agreement reached between the employers and the Association of University Teachers, which is currently under consideration by the Government, would provide for an increase of 9 per cent. on all salaries from 1st May. A further 1 per cent. for flexibility will be payable from January 1991 and will build in further discretionary elements based on previous settlements.
Lord Jenkins of Hillhead: My Lords, is the noble Baroness aware that, while she has made general assertions and has denied the facts put forward by noble Baronesses on this side of the House, she has not provided one single piece of hard evidence to controvert anything that has been said?
Baroness Blatch: My Lords, if the noble Lord wishes to have hard evidence I shall write to him giving further details.
I now have figures concerning Fellows of the Royal Society. Some suggest that the brain drain is best demonstrated by the increasing number of Fellows of the Royal Society resident in the United States of America. My honourable friend took up the point with the Royal Society last year. There are currently 77 British Fellows resident in America. Of those, more than two-thirds have been there since before 1979.
Lord Stallard: My Lords, is the Minister aware that there is another factor which contributes to the brain drain; namely, the age discrimination factor? A number of people have to leave this country because they are too old at 40, 45 or younger. Would she care to comment on the effect that that has in forcing people to leave this country to take employment elsewhere?
Baroness Blatch: My Lords, I should like the noble Lord to write to me with his evidence showing that there is age discrimination in this area.
Earl Russell: My Lords, I sympathise with what the noble Baroness said about freedom of choice, but is she also aware that in most fields, certainly including my own, the number of junior academic appointments available is so small that it is essential to advise postgraduates that if they wish for academic employment they must seek it abroad?
Baroness Blatch: My Lords, on the subject of younger academics, the new academic appointments

407
scheme which was started by the UGC and is being continued by the UFC enables universities to make appointments in advance of the many vacancies which will be created by retirements in the mid-1990s. That is extremely helpful to young academics. The Royal Society is extending its scheme of university research fellowships. About 200 of those fellowships will be supported this year. In addition, the research councils are increasing the number of long-term post-doctoral fellowships. All of that must be very good news for young academics.
Lord Annan: My Lords, would not the noble Baroness be better advised to accept that while there has always been a brain drain—and I well remember asking questions about it in the 1960s—the brain drain today is very much more serious, and for easily explicable reasons?
If there is a bulge in the age group of academics which means that promotion is very difficult to obtain, if there are no funds available for the universities to maintain the standards that they used to have only some 15 years ago, why do the Government not explain that those are the facts? Why do they not explain that circumstances make it impossible for the Government to fund universities as they should be funded because the Government are putting money into the education of the workforce through training schemes for the workforce? Or perhaps that is not the policy of the Government. Will they explain whether they have a policy of priorities in higher education?
Baroness Blatch: My Lords, I am not sure what the noble Lord is saying about our priorities for agreeing that training is very important. I do not agree with the premise. We have asked the Committee of Vice-Chancellors and Principals to provide better information. That request for better information will include data and qualification for that data.
I have to say that at this moment my brain feels fairly drained.
Lord Morris of Castle Morris: My Lords, does the noble Baroness have any figures available about those people who have been obliged to take premature retirement from departments in our universities and have immediately been snapped up by universities overseas?
Baroness Blatch: My Lords, the exodus of academics from universities is very much a matter for the management of those universities.

European Air Traffic: Slot Allocations
3.26 p.m.
Baroness Burton of Coventry Baroness Burton of Coventry asked Her Majesty's Government:
Whether the code of conduct on slot allocation which was to have been produced shortly by the Commission of the European Communities (HL Deb., 17th May, col. 383) is now to be delayed
408
until October/November because of pressure by the airlines; and if so what action they propose to take to assist the Commission in its objectives.
Viscount Davidson: My Lords, I understand that the Commission, having consulted experts from member states and other interested parties, is still working on its proposals, and can be expected to produce them in due course.
Baroness Burton of Coventry: My Lords, having listened carefully to that reply I still believe that the answer to the first part of my Question is yes. The Minister has not even attempted to answer the second part. Concerning the second part, do the Government support the attitude of Sir Leon Brittan, our senior commissioner in Brussels and the commissioner responsible for competition affairs, when he said on 25th May that one of the changes that he is particularly keen to introduce involves making it easier for new entrants to obtain slots at congested airports? If the Government support that attitude will they now make it clear publicly?
Viscount Davidson: My Lords, I am sorry to have to tell the noble Baroness that Her Majesty's Government are not in control of the European Commission's timetable for action and, indeed, are not aware that any such timetable exists. The Commission sets its own timetable for bringing proposals forward.
Baroness Burton of Coventry: My Lords, the noble Viscount has still not answered the second part of my Question. I have now asked him both on the Order Paper and orally in the House.
Viscount Davidson: My Lords, I am unable to answer the second part of the noble Baroness's Question.
Lord Carmichael of Kelvingrove: My Lords, the Minister will be aware that the point raised by the noble Baroness and Sir Leon Brittan on the allocation of slots to independent airlines is rather important. Can the noble Viscount say what support the Government are likely to be giving to small independent airlines, which have a very big part to play in regional development? Can he also say whether the Government expect that when Stansted comes on stream it will be easier for, and encouragement will be given to, small independent airlines to obtain slots in the South East of Britain?
Viscount Davidson: My Lords, there is ample spare capacity on Stansted's runway and in that narrow sense there is no shortage of runway slots as such. The airport's capacity to handle traffic is limited by the capacity of its terminal, which is around 2 million passengers a year. The new terminal which is due to enter service next March will, in time, take Stansted's terminal capacity to some 8 million, so releasing runway capacity and in that sense creating slots. The question of which airlines will use those slots will be a matter for negotiation. I cannot go further than that at the moment.

Channel Tunnel Construction: Accidents
3.29 p.m.
Lord Clinton-Davis Lord Clinton-Davis asked Her Majesty's Government:
What has been the rate of accidents during the construction of the Channel Tunnel, and what action they propose to take in connection therewith.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Strathclyde): My Lords, provisional figures show that 502 accidents were reported to the Health and Safety Executive between April 1987 and March 1990. In 1989–90 that was equivalent to a rate of 4,468 per 100,000 employees. All fatal accidents and some other accidents are investigated by HSE inspectors to see what can be done to prevent any recurrence.
Lord Clinton-Davies: My Lords, are not those figures absolutely horrendous? Is there not an urgent need to dispel the anxiety on the part of the public that safety considerations are perhaps being sacrificed in order to achieve speed in the construction of the tunnel? How does the incidence of accidents on our side of the Channel compare with those on the French side?
Lord Strathclyde: My Lords, the accident figures are extremely regrettable and we obviously feel that they are too high. However, I cannot agree with the noble Lord when he said that it was due to cost-cutting. Everyone involved in the construction industry knows that an efficient site is a safe site and that goes, as far as possible, for the Channel Tunnel site. As for comparisons with the French sector, they are not entirely helpful because the French set different criteria for reporting accidents.
Baroness Turner of Camden: My Lords, is the Minister aware that trade unions representing workers on that project have complained about intimidation that their members face from management if they complain about standards of health and safety, with threats of losing their jobs if they pursue their complaints? Is that not quite unacceptable, and what do the Government intend to do about it?
Lord Strathclyde: My Lords, I was not aware of that and I am surprised that the noble Baroness should make that accusation through the unions because they are represented on a variety of safety committees There is full and regular consultation with members of the four unions represented on the site and, as I understand it, those consultations work effectively.
Lord Dean of Beswick: My Lords, is the Minister aware that a consultant's report on safety with regard to building contracts, issued before the project started, predicted that there was a probability of 24 deaths during the construction of the Channel Tunnel? Is it not rather sad that there should have been a death for every mile that has been built from
410
this side? With six deaths in six miles, is it not tragic that we have not been able to take steps to prove that consultant wrong?
Lord Strathclyde: My Lords, it is tragic, but let us also remember that that site is the largest construction site in Europe. It is one of the bravest kinds of construction sites that we have seen in recent years, beneath the Channel. It is not surprising that accidents should occur, even though it is very regrettable.
Baroness Turner of Camden: My Lords, reverting to the question that I asked earlier and with regard to the Minister's response, is he aware that I was speaking to a brief provided to me by the Trades Union Congress and that I am willing to provide him with the information? If I do so, will he take some steps to deal with the matter?
Lord Strathclyde: Yes, my Lords, but I must point out that I am advised that there is a well developed system of safety committees and employee safety representatives on the project, that trade unions are well represented among the workers and that the trade union safety representatives have forwarded no complaints to the Health and Safety Executive. However, if the noble Baroness has evidence to support her case, I shall of course be interested in seeing it.
Lord Kinnaird: My Lords, I do not suppose that my noble friend the Minister can tell us how many accidents took place during the building of the pyramids, but can he tell us how many occurred during the building of the Forth railway bridge?
Lord Strathclyde: My Lords, I am sure that that would be useful information, but I regret that I have no information on either of those two projects.
Lord Tordoff: My Lords, does not the Minister hope that safety standards have improved a little since those days?
Lord Strathclyde: My Lords, for once I am able to agree with the noble Lord.
The Viscount of Oxfuird: My Lords, on leaving school I was for two years an apprentice surveyor on the Rimutaka Tunnel in New Zealand, which was a railway tunnel going from the north of the Hutt Valley through to the hinterland beyond and it was driven through argalite and greywackey. Does my noble friend agree with me that the art of tunnelling is extremely dangerous and that one of the major problems associated with it is the unpredictability of the land through which one goes? Bore holes may have been made, but shale slants and various other factors can produce accidents at a moment's notice. Does he agree that it is an extremely difficult and dangerous exercise?
Lord Strathclyde: My Lords, that is a useful contribution from my noble friend, who has experience in such matters. Perhaps I may tell him that the contractors themselves are worried and

411
concerned about their safety record. However, we believe that their safety endeavours are commendable and we shall maintain close contact with them to ensure that the safety record improves.
Lord Stoddart of Swindon: My Lords, is the noble Lord aware that an accident rate of 4 per cent. is extremely high by any standards? Can he state any other industry or project which has an accident rate as high as that?
Lord Strathclyde: My Lords, this construction site is way above the average for the construction industry as a whole. That is partly due to under-reporting in the rest of the construction industry. I am not able to tell the noble Lord how it compares with other industries overall. In any case, I am not sure that that is strictly relevant.
Lord Stoddart of Swindon: My Lords, if there is under-reporting in other areas of the building industry, should not the contractors involved be prosecuted for breaking the law?
Lord Strathclyde: My Lords, we understand that there is a certain amount of under-reporting. When the contractors are caught out, the full weight of the law is brought to bear.
Lord Campbell of Alloway: My Lords, does my noble friend the Minister agree that the conditions under which that construction work is undertaken and the timetable and urgency involved give rise to a certain measure of anxiety for the safety of the workers? Would it be possible for him to take special consideration of their safety into account?
Lord Strathclyde: Yes, my Lords. To that effect, the Secretary of State has already met with the chief executive of the contractors' consortium to discuss the position of the safety of workers.
Lord Clinton-Davis: My Lords, is the noble Lord aware that the statistics relating to accidents at that site represent 4 per cent. of the workforce, compared with 1·8 per cent. in the construction industry as a whole, which is one of the most dangerous industries in the country? Is he further aware that the acceptance of the inevitability of accidents represented by a number of noble Lords in questioning him today is in itself unacceptable? What the House surely wants to know from him is what action the Government are prepared to take to reduce the incidence of accidents, and particularly whether they are prepared to set up an independent inquiry.
Lord Strathclyde: My Lords, I am surprised that with his experience in those matters the noble Lord should use statistics so selectively. When we deal with statistics involving the construction industry, we include plumbers, carpenters and even decorators. When we deal with the Channel Tunnel, we deal with people who work deep underground under the sea, and that is obviously bound to be more dangerous.
Lord Clinton-Davis: My Lords, will the noble Lord indicate what action the Government are disposed to take?
Lord Strathclyde: My Lords, the HSE is working on the matter.

Manchester Prison: Refurbishment
3.38 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
Whether they are now in a position to announce the rebuilding programme and time-scale for Her Majesty's Prison Strangeways.
The Minister of State, Home Office (Earl Ferrers): My Lords, my honourable friend the Minister of State announced our plans for the future of Manchester Prison on 17th May. These include a major refurbishment of the living accommodation and the provision of a range of new or improved supporting facilities. The programme aims to have some 970 places back in use within about three years. However, we hope to provide accommodation for up to 200 remand prisoners by October of this year. All the remand accommodation—over 300 places—should be in use in about a year's time.
Lord Dean of Beswick: My Lords, I am grateful to the noble Earl for the detailed reply that he has given. However, will the Government take on board suggestions that, as the various phases of the building are completed, they are put into immediate use in order to create a viable establishment at Strangeways? Will he refer briefly to the part that has been played by the visitors' centre, which is controlled by the voluntary organisation Selcare and which is the only building that has been serviceable for some time? Does he agree that it has played a tremendous part in supporting the prison authorities and staff during the difficult period that they have experienced and are still experiencing?
Earl Ferrers: My Lords, I understand the noble Lord's desire to have the gaol brought into operation as soon as possible and in various stages. I am bound to tell him that K wing, which was the least damaged part of the remand prison, will be available after four months. The other parts of the remand wings—G, H and I—will be ready after 12 months. The remaining wings, which are to take the convicted prisoners, will not in fact be able to be introduced separately. As I understand it, there are fundamental alterations with regard to the common services and so on which require to be done all in one piece.
With regard to the visitors' centre, I agree with the noble Lord. It has been of remarkable assistance and has been supported by voluntary people who have done most magnificent work, not only after the disturbances but also beforehand. However, the work done after the disturbances has been of enormous benefit and help.
Lord Mulley: My Lords, can the noble Earl explain why Her Majesty's prisons, almost uniquely among

413
public buildings, seem to provide ready access to the roof from inside the building? In rebuilding Strangeways, will care be taken not to provide such access and perhaps remove it in other cases, so as to take away the temptation to prisoners to parade there for the benefit of the ever-ready television cameras?
Earl Ferrers: My Lords, I am bound to say that that is a question which I have often asked myself. I suppose the answer is that the prisoners cannot get downstairs and therefore the easiest way is to get upstairs. I can assure the noble Lord that in the rebuilding of Strangeways that particular precaution will be taken to ensure that it does not happen again.
Lord Mishcon: My Lords, without in any way wishing him to prejudge Lord Justice Woolf's anticipated report, can the Minister confirm that included in the refurbishing and rebuilding programmes are the essential civilised elements that, unfortunately, are lacking in Strangeways prison at the moment and have been over past years?
Earl Ferrers: My Lords, it is the Government's intention to renovate as soon as possible those parts of those prisons to which, quite understandably, the noble Lord refers. I can assure him that such matters as internal sanitation and so forth will be put in the refurbished Strangeways.
Lord Harris of Greenwich: My Lords, does that mean that there will be internal sanitation when the rebuilt remand facility is opened? Moreover, is the noble Earl aware that, following Strangeways and as a result of disputes with some branches of the Prison Officers' Association, many hundreds of prisoners are now being held in police cells in most deplorable conditions? What action does he propose to take to deal with that situation?
Earl Ferrers: My Lords, with regard to the noble Lord's first question about the position on the remand wings, the fact is that they will not have internal sanitation immediately because we wish to get the prisoners back into that accommodation as soon as possible. If rebuilding were to be delayed because of the introduction of internal sanitation, the overcrowding in police cells to which he refers in the latter part of his question would continue elsewhere. With regard to the question of prisoners in police cells, it is of course our desire to get them down to the lowest possible number as soon as possible. However, the noble Lord will realise that when all of a sudden 1,600 additional prisoners are put into the system inevitably police cells have to be used.

Business
3.43 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Report stage of the National Health Service and Community Care Bill will be adjourned at about 7 p.m. for about an hour and that during the
414
adjournment the Second Reading of the Road Traffic (Temporary Restrictions) Bill will be taken.

Redbridge London Borough Council Bill
Read a third time, and passed, and returned to the Commons with an amendment.
Bromley London Borough Council (Crystal Palace) Bill
Read a third time, and passed.

National Health Service and Community Care Bill
3.45 p.m.
The Parliammentary Under-Secretary of State, Department of Health (Baroness Hooper): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Hooper.)
On Question, Motion agreed to.
Clause 43 [Provision of accommodation and welfare services: agency arrangements]:
Lord Allen of Abbeydale Lord Allen of Abbeydale moved Amendment No. 144:
Page 47, line 37, at end insert:
("(aa) at the end of that subsection there shall be added—"(c) for the avoidance of doubt, "other circumstances" shall include persons currently or recently dependent on drugs or alcohol, having any HIV or AIDS related disease, having the Acquired Immune Deficiency Syndrome, vulnerable as a result of domestic violence or sexual or physical abuse or having an unsettled way of life." ").
The noble Lord said: My Lords, in moving this amendment I should like also to speak to Amendment No. 145. This discussion starts us on the community care aspects of the Bill. At the outset I should like to take the point that some of the government amendments have appeared rather late in the day on the Marshalled List. I find that a bit hard after my noble friend Lord Seebohm was criticised the other day for tabling a late amendment to the Social Security Bill. However, I hope that none of that will affect the amiability of our exchanges on the formidable agenda on which we are now starting.
Amendment No. 144 relates to the duties of local authorities to provide accommodation for particular groups in need of care and attention. Amendment No. 145 relates to the general duty of local authorities to promote the welfare of certain specified categories of people. Once again I seek to ascertain who exactly is entitled to receive community care. The nearest thing to a list of clients, if I may so describe them, is in Clause 47(4) which lists the statutes covering the elderly, mothers and children, those suffering from mental disorder and, crucially, those qualifying for services under Part III of the National Assistance Act 1948. The question is whether those with drug

415
and alcohol problems, and the others mentioned in these amendments, who have moved into the centre of the stage since the 1948 Act was passed, are covered by the provisons of that Act as amended in this Bill by Clause 43.
When the noble Lord, Lord Peston—who was in the Chamber but a moment ago—at Committee stage asked for a categorical assurance that those dependent on drugs and alcohol were already covered, the noble Baroness, Lady Blatch, gave an unequivocal answer yes; but then I fear, she went on to add words which, the more I study them, cause me to feel alarm rather than comfort. But for her part, the noble Baroness said that she would wish to return to the subject on Report. In the absence of any government amendment or any communication of any kind, these amendements give her that opportunity.
Having read in the White Paper (at paragraph 2.8) the splendid promises about helping people who have drug and alcohol-related problems and illnesses such as AIDS, my attention was orginally drawn to the possible gap in the Bill by the fact that in Clause 57 as it now stands, dealing with residential accommodation with nursing in Scotland, it has been found necessary to make specific reference, for example, to dependency on drugs and alcohol. Try as I might, I still cannot understand the explanation as to why the provision is needed for Scotland but is unnecessary for England and Wales in the context that we are discussing.
The noble Baroness suggested that the answer was in the speaking note. Since I have no idea what that note contains, or indeed what a speaking note is, that helps me but little. I confess that for a moment I was tempted to think that the advisers of the noble Baroness had not noticed this anomaly but I naturally hastened to banish so unworthy a thought. However, it seemed a little odd to be told that being specific risked narrowing the all-embracing effect of the existing provisions when the Scottish clause does precisely that.
Clause 43(1)(a) of the Bill extends the duty placed on local authorities by Section 21(1) of the 1948 Act to provide accommodation for those in need in order to cover those whose need arises because of illness or disability. The general duty in Section 29(1) of the 1948 Act, to which the second amendment relates, is not at present affected by the Bill. The duties falling on local authorities under this head remain as summarised in the words in brackets in our amendment. They include,
"the welfare of persons who are … substantially and permanently handicapped by illness, injury or congenital deformity or such other disabilities as may be prescribed by the Minister".
The trouble is that a person dependent on drugs or alcohol may or may not be ill but may well be in great need of community care services such as detoxification. Indeed, after detoxification the need may be at its greatest. Since illness is such a key word, can we be sure that people coming off drugs and alcohol will be covered at the moment it matters most?
People who have HIV and AIDS-related conditions may not be at the stage of being
416
substantially and permanently handicapped—to use the words of the statute—by their illness. HIV can be episodic but the need for care is continuous. Would it not be wrong for those people to be turned away on the ground that they are not yet ill enough?
Some of the homeless will not be ill but is there not a good chance that without care they would follow the path down to mental illness and institutionalisation?
Can the Government point to the words in the 1948 Act, with the one amendment made in the Bill relating to accommodation, which ensure that the individuals covered by our amendments or any part of them are already provided for? Are they confident that a person with, say, a drugs or alcohol problem who is refused community care services by a local authority on the ground that he is not covered by the legislation would be bound to succeed if he went for judicial review?
Do the Government have in mind to use the powers in Section 29(1) of the 1948 Act to specify any additional forms of disability? I gather that that power has not so far been used and I realise that, under the Section 21 duty, it would not help to provide accommodation.
The questions that we raise are absolutely crucial to the functioning of this part of the Bill. I could continue for some time. However, I hope that I have said enough to show that there is a real problem to which so far we have not had a convincing answer. The rumours that one hears about the reluctance of local authorities to touch on cases involving drug and alcohol problems are disquieting, to put it no higher.
In my simple way, it seems to me that there is much to be said for following the precedent that the Government set in the Scottish divisions, and for putting beyond doubt the fact that community services are to be available to the categories listed in these amendments, who are now at the centre of the need for community care. For some the White Paper fully recognises that. We await with great interest and some concern to learn where the ruminations of Government since the Committee stage have taken them. I beg to move.
Lord Kilmarnock: My Lords, the noble Lord has explained the two amendments so well that there is very little to add. I have added my name through the concern that I have with the treatment of people with HIV and AIDS in the community.
As the noble Lord has already stated, the problem concerns who is to receive community care and under what provision. The community care provisions of the Bill seem to hang almost entirely on Part III of the National Assistance Act 1948. That was designed for another era at a time when factors that are prevalent in our present society were not so prevalent. The Government also seem to have attached their provision to Section 21 of the National Assistance Act 1948 which deals with accommodation and to have overlooked Section 29 which deals with welfare, which could be more closely identified with community care in the present context.

417
The noble Lord pointed out that illness appears to be the key word in that statute. It is therefore hard to envisage that that could be used to cover people attempting to come off drugs or alcohol or those with HIV infection attempting to survive in the community.
HIV is an episodic condition. People may be very ill at one time and almost completely recover until the next bout of the infection occurs. The term "substantially and permanently" may therefore be understood to exclude people who are not ill all the time, in particular if assessment occurs at a time of relative good health. It is vital for people with HIV that care is provided on a continuous basis and not only at crisis times. Evidence has shown that the onset of infections may be very rapid. If care services are not already in place they may arrive too late. The Government must give us an assurance that people with HIV are eligible for community care services.
The argument that has been advanced by both noble Baronessess on the Government Front Bench against such specification on the face of the statute is that they wished to cast the net wide so that all client groups would be able to come in. The noble Baroness, Lady Blatch, on 8th May, said,
"That is why the definition is cast in [such] wide terms" —[Official Report. 8/5/90; col. 1274.]
However, that could be considered the other way round. What the Government see as a catch-all statutory provision may well be seen by hard-pressed social services departments as an escape-all provision if certain factors are not specified.
Like the noble Lord, Lord Allen, I hope that we shall hear either that the Government are prepared to accept the amendments or that they will ensure that the issues are covered in guidance. I look forward to hearing the Minister's reply.
4 p.m.
Lord Carter: My Lords, I was glad to add my name to the amendment and to support it. There is little more to say because it was moved by the noble Lord, Lord Allen, with his usual lucidity and clarity. Clarification of the definitions is crucially important. The Government are replying on previous legislation but we believe that the definitions should be spelt out clearly in the Bill because it must be apparent who will receive community care. The Minister promised to think about the matter and come back on Report. The Government have not brought forward amendments and therefore we hope that they will be able to explain their thinking.
A number of Members have been advised by Turning Point, an organisation which helps people with drink, drugs and mental health problems. It states:
"From our discussions with the Department of Health we understand that the local authorities will not be directed in guidance to include drugs and alcohol. It is clear from our contact at local levels that without a direct requirement on local authorities the needs of our clients are unlikely to be considered in any depth".
I hope that the Minister will be able to comment on that statement.
418
The wording of Amendment No. 144 must follow that of the 1948 Act. It is interesting to note how events have moved on because we no longer use the phrase "deaf and dumb" contained in that Act. The phase now used is "hearing and speech impared". If the amendment is accepted I hope to come back at Third reading and replace that phrase, which is no longer used in the disabled community.
Lord Mancroft: My Lords, I do not have a great deal to add to what was said by the noble Lord, Lord Allen, because he made the case very well. I put my name to the amendment with care and caution and after much thought because I believe that its importance is considerable. An important point has yet to be made in relation to the definition of the word "illness" and what is a disability and whether people qualify. As of today Her Majesty's Government are the only government in the Western world, including the United States and Europe, who refuse to accept addiction and alcoholism as an illness or disease. Theoretically, therefore, the definition has been moved outside those brackets even before we start to discuss it. The definition is important.
From what I have heard and read of the various exchanges during the past few weeks, it is clear that the Government hold a definite belief that drug and alcohol dependents are included in community care. It is equally clear, however, that local authorities do not believe that. There is a major communication problem which could be overcome by placing drug and alcohol dependents fairly and squarely on the face of the Bill. No vast matters of cost or principle appear to be involved, but it is a big issue to the enormous number of people covered by the amendment. These are unseen patients and therefore one has a tendency to believe that the group is only a small one and is suffering from an obscure condition. However, I wish to remind the House of what I said in Committee. At present about 800,000 people are suffering from alcohol problems; between 800,000 and 1·6 million people are suffering from dependency on prescription drugs; and approximately 150,000 people are suffering from addiction to street drugs. That is not a tiny group; it is a large group and the figures do not take into account the families who suffer along with the sufferers.
We need to be assured by the Government that they realise that the local authorities are in the dark. It would take little for the Government to give that assurance to those working in the voluntary sector and who carry approximately 75 to 80 per cent. of the workload in this area.
Baroness Faithfull: My Lords, I wish to refer to a point that has not been made; it is the perception of the community and the public. When I was a director of social services I was often asked, "Why don't you do this? Why doesn't your department help that person and do something?" I contend that members of the general public will welcome the amendment and I hope that they will be considered.
Baroness Masham of Ilton: My Lords, the amendments illustrate the real worry and insecurity now surrounding all those people mentioned in them. They also illustrate the anxiety of the people running the organisations. Many people might fall through the net of help. Therefore I support the amendments.
Barones Blatch: My Lords, Amendment No. 144 contains the words, "for the avoidance of doubt". It goes on to describe a group of people as, "having an unsettled way of life". For clarity and the avoidance of doubt, I must press the noble Lord to say precisely what the phrase means.
Amendment No. 144 covers the provision of residential and nursing home care by local authorities. As I explained in Committee, we deliberately cast the definition of the people for whom local authorities may provide these services very broadly in order to be as inclusive as possible. The noble Lord, Lord Allen of Abbeydale, has chosen to deem a number of groups to be excluded by the definition. I hasten to say that I suspect that that is more in the mind than in reality. The term "inclusive" is meant to provide that all people requiring the services shall be covered.
It may help if I remind your Lordships of what Section 21(1)(a) provides. With the amendments already set out in Clause 43 of the Bill it will read:
"subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State and to such extent as he may direct shall make arrangements for providing residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them".
I do not believe that anything could be more inclusive than that.
However, I appreciate that the purpose of this amendment is not to broaden the scope of Section 21 but to make it quite clear that people in the groups listed are covered by the definition. I do not believe that there can be any doubt but that this is the case. As I have indicated, it is unnecessary to make any changes on the face of the Bill. However, there is a further safeguard. The provisions of Section 21 as I quoted them a few moments ago are subject to approval and directions by the Secretary of State, and it is in giving such approvals and directions that the attention can be drawn to any group, such as people with drug and alcohol dependency, which it is felt needs a special mention. As I explained, we want to limit specific references to such groups so far as possible because mentioning one implies that others may not be so included. This is not the case; and, as I have already said, our intention is to be as inclusive as possible.
Turning to Amendment No. 145, the position here is a little more complicated. Section 29 of the 1948 Act and other legislation dependent upon it, such as Section 2 of the Chronically Sick and Disabled Persons Act 1970, are all aimed at helping people to cope with the effects of permanent and serious disability. It would only weaken the thrust of such provision to bring within it people who are not subject to such conditions. For them separate provision exists in Schedule 8 of the National Health
420
Service Act 1977. Paragraph 2 of this schedule contains powers to provide services for the prevention of illness, the care of the ill and the after-care of those who have been ill. Like the 1948 Act this power is subject to approval and directions by the Secretary of State and here again we can use this means to specify groups needing special attention.
Home help services are covered by paragraph 3 of the same schedule which states that local authorities must provide services which are adequate for the needs of their area in order to assist households where for example there is a person suffering from illness.
At this stage therefore we do not see any need for bringing any of these groups within the definition of disabled persons. But if we subsequently decided that there was a case for this it would be possible to do so. The Act already provides for the Secretary of State to add by regulations further disabilities to those listed. This device could be used therefore to bring other groups within the definition. However, the wording of Section 29 means that people suffering from such conditions would only be brought within its scope in so far as they were substantially and permanently handicapped by them. This, however, is consistent with the purposes of this legislation which as I have explained is to help people cope with the effects of serious problems of disability.
To summarise, there is no difficulty at all with residential accommodation which local authorities can provide for anyone who is in need of care and attention not otherwise available to them. For day and domiciliary services there are powers in Schedule 8 to the 1977 Act which local authorities would be able to use in so far as the Secretary of State gives approval to provide such services for people mentioned in these amendments.
Finally, if we wished to include any further group within the definition of disabled persons it would be possible to do this, within the limitations of Section 29, by regulations under that section. I hope that I have demonstrated that, although it may provide some reassurance to have one or more of these conditions specifically mentioned in legislation, there is no legal reason why that needs to be done and other ways exist to bring these groups to the special attention of local authorities.
As regards the words,
"vulnerable as a result of domestic violence or sexual or physical abuse or having an unsettled way of life",
it would be very difficult to define, with any degree of precision, the people who would fall within that description. There could well be an overlap, particularly in the case of people who have an unsettled way of life, with provision for homeless people. For those reasons we prefer to rely on the wording of Section 21 of the National Assistance Act as at present drafted. That provides for care and attention not otherwise available. Such people will not have substantial and permanent handicap. That is the underlying reason that those groups should not be included among disabled people.
The noble Lord, Lord Allen, made reference to the difference between Scottish and English legislation.

421
The Scottish legislation is drafted in narrower terms than the English legislation because it is only concerned with nursing homes. The English legislation, as is now obvious, refers to both residential care homes and nursing homes. Because it deals with residential care homes, it needs to be drafted in broader rather than less specific terms.
The noble Lord, Lord Allen, referred to legal authority for providing for drug addicts, alcoholics and HIV sufferers. We have ascertained that local authorities could provide services for drug and alcohol misusers under paragraph 2 of Schedule 8 to the National Health Service Act 1977. That deals with the care of the ill, the after care of those who have been ill and the prevention of illness. Before that can be done the approval of the Secretary of State is required. That was given in a circular issued in 1974 as regards another Act and that will be repeated in new guidance which we propose to issue in connection with the new community care arrangements.
I noted that the noble Lord, Lord Allen of Abbeydale, was rather cynical about my first reply and I have been somewhat repetitious in this reply. I hope that some of his cynicism has diminished as a result of my second reply.
Baroness Seear: My Lords, it would help me if the noble Baroness could explain one point. As I understand it, she said that provision of care would be available for people who for any other reason were in need of care. Whose right is it to decide whether care is needed? For example, I can envisage a household in which there is a person who is deeply into alcohol or drugs. He or she is living in the household but it is becoming intolerable for the family to cope. I believe that if the words of the amendment were written on the face of the Bill the family could go along to the local authority and say, "This is someone who is really in need of care which we can no longer give". I see the noble Baroness's point in not wishing the wording to be too specific. However, that family could then be refused care (could it not?) because there is no specified right to care. Am I wrong about that?
Baroness Blatch: My Lords, with the leave of the House, whether or not these amendments are written into the Bill, attending to the needs of anybody will always be a matter for judgment. People will not be attended to because they are alcoholic or HIV positive. It will be a question of whether their needs require attention. Judgment will have to be made about the needs of the individual rather than the particular client group from which they come.
4.15 p m.
Lord Carter: My Lords, I put a specific question to the Minister and I should be grateful if she could answer it because upon the answer depends the way in which we regard the amendment. I quoted from Turning Point, which stated:
"From our discussions with the Department of Health we now understand the local authorities will not be directed in guidance to include drugs and alcohol".
If that is the case, these amendments are essential.
Baroness Blatch: My Lords, again with the leave of the House, I can give the noble Lord an assurance that there will be guidance with specific mention of drugs and alcohol abuse. I should say to the noble Baroness, Lady Seear, that the responsibility for assessment will always be laid on the local authority.
Lord Ennals: My Lords, before the noble Baroness finally sits down, perhaps I may ask her why she feels that it is better to leave the matter in vague terms rather than to be specific. Will she take on board the point made by her noble friend Lady Faithfull, who was arguing that if these matters are written on to the face of the Bill the public, the local authorities and everyone else who reads the Bill will know that certain categories of people who need care will be included? Why is it best to leave that in vague terms?
The noble Baroness referred to categories of age, illness and disabilities. As I understand it, this amendment is concerned with those who cannot be classified as aged, ill or disabled. However, they are certainly people who need care. Does she not agree that, rather than leaving uncertainty, as the noble Baroness, Lady Seear, said, there is great merit in making it clear in the Bill that we are talking about a whole range of categories of people who desperately need help? Society wants them to be helped. Therefore, is it not best to include them?
Baroness Blatch: My Lords, with the leave of the House, the aim of the Bill is that the needs of all people are met—and we are talking about the degree of need—whether alcoholic, HIV positive and so on. The particular client groups are not mentioned. The noble Lord mentioned vagueness. The words:
"having an unsettled way of life",
are extremely vague.
Lord Kilmarnock: My Lords, as regards the guidance, the noble Baroness said that alcohol and drug related diseases will be included. Will HIV and AIDS conditions also be included in that guidance?
Baroness Blatch: My Lords, I understand that they will be included and I understand also that the draft guidance will be published tomorrow.
Lord Allen of Abbeydale: My Lords, to say that I am disappointed in that reply would be putting it mildly. I concede immediately that the words at the end of the amendment about having an unsettled way of life are too general. They are primarily intended to cover the homeless. Had the Government accepted the approach in principle, I should have been happy to draft an alternative which met that problem. Unfortunately they are not prepared to co-operate in principle on an amendment which has secured support on all sides of the House.
As the noble Lord, Lord Mancroft, said, the cases here have taken on an importance which was in nobody's mind when the 1948 Act was passed but they have now moved to centre stage. It is not an answer to say that these matters will be covered in guidance to local authorities. Local authorities are

423
entitled to look to the law. If they go to the courts and say that there is nothing in this Bill which puts an obligation on them to give care to an HIV sufferer who is not at present substantially ill, I do not know what will happen. When the debate started I had no intention of dividing the House.
Lord Ennals: My Lords, perhaps the noble Lord will give way. Does he not think that there is something very strange in the way the Government decide that tomorrow—the day after these amendments are debated in your Lordships' House—they will publish guidelines for discussion? Does he not feel that that shows disrespect for noble Lords and noble Baronesses who have spoken with experience on behalf of a vast range of organisations that are interested? It seems to me to be quite extraordinary.
Lord Allen of Abbeydale: My Lords, I agree with that point, but having myself behaved in a similar way in the past on more than one occasion perhaps I had better not pursue the matter.
I was slightly puzzled by the answer concerning Scotland. The noble Baroness said that one does not have to be specific as regards nursing homes because people who should qualify may be excluded. I am still left in a state of puzzlement. I am torn between withdrawing the amendment and trying again at Third Reading or dividing the House. On the whole I think I must take the opinion of the House.
4.21 p.m.
On Question, Whether the said amendment (No. 144) shall be agreed to?
Their Lordships divided: Contents,110; Not-Contents, 114.

DIVISION NO. 1

CONTENTS

Addington, L.

Ezra, L.

Airedale, L.

Faithfull, B.

Allen of Abbeydale, L.

Falkender, B.

[Teller.]

Falkland, V.

Ardwick, L.

Fisher of Rednal, B.

Aylestone, L.

Foot, L.

Bancroft, L.

Gallacher, L.

Birk, B.

Galpern, L.

Blackstone, B.

Gibson, L.

Bonham-Carter, L.

Gladwyn, L.

Boston of Faversham, L.

Graham of Edmonton, L.

Bottomley, L.

[Teller.]

Brightman, L.

Grantchester, L.

Broadbridge, L.

Greenhill of Harrow, L.

Bruce of Donington, L.

Grey, E.

Carmichael of Kelvingrove,

Hampton, L.

L.

Hanworth, V.

Carr of Hadley, L.

Hatch of Lusby, L.

Carter, L.

Hayter, L.

Cledwyn of Penrhos, L.

Hirshfield, L.

Clinton-Davis, L.

Hollis of Heigham, B.

Cocks of Hartcliffe, L.

Houghton of Sowerby, L.

Crook, L.

Hughes, L.

Darcy (de Knayth), B.

Hunter of Newington, L.

David, B.

Hylton-Foster, B.

Dean of Beswick, L.

Ilchester, E.

Diamond, L.

Jay, L.

Ennals, L.

Jeger, B.

Ewart-Biggs, B.

Jenkins of Hillhead, L.

424

Jenkins of Putney, L.

Rochester, L.

John-Mackie, L.

Russell, E.

Kilbracken, L.

Russell of Liverpool, L.

Kilmarnock, L.

Saltoun of Abernethy, Ly.

Kinloss, Ly.

Seear, B.

Leatherland, L.

Seebohm, L.

Listowel, E.

Serota, B.

Llewelyn-Davies of Hastoe,

Shannon, E.

B.

Shaughnessy, L.

Lloyd of Kilgerran, L.

Stallard, L.

Longford, E.

Stedman, B.

Lovell-Davis, L.

Stoddart of Swindon, L.

Macaulay of Bragar, L.

Strabolgi, L.

McNair, L.

Swann, L.

Mancroft, L.

Taylor of Blackburn, L.

Masham of Ilton, B.

Thomson of Monifieth, L.

Mayhew, L.

Thurlow, L.

Milner of Leeds, L.

Tordoff, L.

Molloy, L.

Turner of Camden, B.

Morris of Castle Morris, L.

Wallace of Coslany, L.

Nicol, B.

Walton of Detchant, L.

Northfield, L.

Whaddon, L.

Ogmore, L.

White, B.

Oram, L.

Wilberforce, L.

Peston, L.

Williams of Elvel, L.

Phillips, B.

Wilson of Langside, L.

Porritt, L.

Winstanley, L.

Rea, L.

Young of Darlington, L.

NOT-CONTENTS

Aldington, L.

Gridley, L.

Alexander of Tunis, E.

Harmar-Nicholls, L.

Allenby of Megiddo, V.

Havers, L.

Atholl, D.

Henley, L.

Auckland, L.

Hesketh, L.

Balfour, E.

Hives, L.

Belhaven and Stenton, L.

Home of the Hirsel, L.

Beloff, L.

Hooper, B.

Belstead, L.

Howe, E.

Bessborough, E.

Kimball, L.

Blatch, B.

Kinnaird, L.

Blyth, L.

Kitchener, E.

Borthwick, L.

Long, V.

Boyd-Carpenter, L.

Lyell, L.

Bridgeman, V.

McColl of Dulwich, L.

Brigstocke, B.

Malmesbury, E.

Brougham and Vaux, L.

Manchester, D.

Butterworth, L.

Margadale, L.

Caithness, E.

Merrivale, L.

Campbell of Alloway, L.

Mersey, V.

Carnegy of Lour, B.

Milverton, L.

Carnock, L.

Monteagle of Brandon, L.

Cavendish of Furness, L.

Morris, L.

Chesham, L.

Mottistone, L.

Clanwilliam, E.

Mountevans, L.

Cockfield, L.

Mowbray and Stourton, L.

Colnbrook, L.

Munster, E.

Colwyn, L.

Nelson, E.

Constantine of Stanmore, L.

Nugent of Guildford, L.

Cork and Orrery, E.

Orkney, E.

Cottesloe, L.

Orr-Ewing, L.

Cullen of Ashbourne, L.

Oxfuird, V.

Cumberlege, B.

Pender, L.

Dacre of Glanton, L.

Peyton of Yeovil, L.

Davidson, V. [Teller.]

Plummer of St. Marylebone,

Denham, L.

L.

Eccles of Moulton, B.

Quinton, L.

Eden of Winton, L.

Reay, L.

Elibank, L.

Sanderson of Bowden, L.

Ellenborough, L.

Sandys, L.

Elles, B.

Selborne, E.

Elliot of Harwood, B.

Sempill, Ly.

Erroll of Hale, L.

Sharpies, B.

Foley, L.

Strange, B.

Fortescue, E.

Strathcarron, L.

Fraser of Carmyllie, L.

Strathclyde, L.

Fraser of Kilmorack, L.

Strathcona and Mount Royal, L.

Gainford, L.

Gardner of Parkes, B.

Strathmore and Kinghorne,

Gisborough, L.

E.

Granville, E.

Swansea, L.

425

Swinton, E.

Wade of Chorlton, L.

Teviot, L.

Wedgwood, L.

Thomas of Gwydir, L.

Westbury, L.

Thomas of Swynnerton, L.

Wise, L.

Trefgarne, L.

Wolfson, L.

Trumpington, B.

Wyatt of Weeford, L.

Ullswaer, V. [Teller.]

Young, B.

Vaux of Harrowden, L.

On Question, amendment agreed to.

4.29 p.m.
[Amendment No. 145 not moved.]
Baroness Hooper Baroness Hooper moved Amendment No. 145ZA:
Page 48, line 19, at beginning insert ("Subject to subsection (1BB) below").
The noble Baroness said: My Lords, in moving this amendment I speak also to Amendments Nos. 145A, 145B, 167A, 169A and also Amendment No. 180A which is the Scottish equivalent.
When we discussed Clause 43 in Committee, my noble friend Lord Mancroft drew attention to the need to ensure that it would be possible to arrange community care services without delay for those in urgent need of them. I know my noble friend had particularly in mind the provision of nursing home accommodation for drug and alcohol misusers. I said at the time that we would look again at the Bill to see whether any changes were needed to make it absolutely clear that services could be provided in cases of urgency without the need either to seek the consent of the health authority as required by the new Section 26(1B) of the National Assistance Act 1948 (as inserted by Clause 43 of the Bill) or the need to carry out an assessment in accordance with Clause 48. The result of the examination was that we decided that further provision would clarify the position. This is contained in the government amendments.
I turn now to Amendment No. 145A, tabled by my noble friend Lord Mancroft. This amendment would achieve the need to which my noble friend drew attention at Committee stage, but we feel that there is a need to go further and cover not only the emergency provision of nursing home care but also the provision of other community care services by the local authority. Our amendments do that.
I appreciate that the government amendments mean that a voluntary organisation providing community care services would need to come to some arrangement with a local authority regarding the provision of urgent treatment. But, equally, the local authority itself will need—and, indeed will have a duty—to come to arrangements with providers in order to meet the need of their local communities. Therefore, there is nothing to stop a voluntary organisation and a local authority agreeing together for the provision of temporary care without any formalities in order to cope with situations where care is required urgently.
The government amendments provide a mechanism for such arrangements and we shall certainly be advising and encouraging local authorities to make them in order to supplement the
426
consultations that they will also need to make with voluntary sector and other interested parties in preparing their community care plans. I would say to my noble friend—and to others because I know there are anxieties in this area—that once the Bill has received Royal Assent it is the intention of my honourable friend the Minister of State and myself to meet representatives of the various voluntary sector bodies, including people involved in the alcohol and drug-related areas, to ensure that they are fully aware of all the mechanisms that are in place and what they will need to do to fulfil what they consider to be their own duties in this respect.
Therefore, I believe that the amendments tabled in my name remove any obstacles to the urgent provision of services, including those identified by my noble friend and others in our previous debate. I commend them to the House and I beg to move.
Lord Winstanley: My Lords, when is this very welcome meeting, to which the noble Baroness referred, to take place and will the result be available before Third Reading of this Bill?
Baroness Hooper: My Lords, with the leave of the House, I believe I said that the meeting would be after the Bill had received Royal Assent.
Lord Mancroft: My Lords, it was heartening to hear my noble friend's words this afternoon. I hope that the Government finally appreciate the difficulty of this area. However, looking at the wording of the amendments, I am slightly concerned at the use of the word "authority" which is printed with a small "a" and without the preface of the word "local". What does "authority" mean in this context? Is it a local authority, a district health authority, my authority or yours?
Lord Ennals: My Lords, or is it a water authority?
Lord Mancroft: Yes, my Lords, it could be that. I hope and believe that my noble friend may be using the word in a wide context to cover voluntary organisations because the biggest part of the problem that we discussed in Committee was the very poor relationships between local authorities and the voluntary sector. The voluntary sector in this case is by far and away the largest, most professional and most able carer. The local authorities have not shown themselves over-willing—which is a gentle way of putting it—to deal with their voluntary sector brethren.
Over the past few weeks I have not heard of one local authority which has said it will enter into arrangements with the voluntary sector. When I discussed that with my noble friend she said that they must keep trying. I appreciate that and they are trying; but a few more weeks have passed and nothing has happened. I believe I said to the Committee that Quentin House in Bournemouth—a facility which I know quite well—had written to 127 local authorities. Replies had been received from only 23 and only seven of those replies were remotely positive—and they were only remotely positive. The situation does not bode well.

427
Therefore, the one Question that hangs in the air above my noble friend's amendments is: does this word "authority" encompass voluntary sector organisations? If voluntary sector organisations are dependent on local authority assessment then the amendment does nothing. If they are not dependent on local authority assessment the amendment does everything.
Lord Carter: My Lords, I was pleased to add my name to the amendment tabled by the noble Lord, Lord Mancroft, and I spoke in Committee in his support. The importance of the matter is that we all understand that speed is essential in certain cases. We hope that the Government have gone far enough but we shall decide what to do with our amendment when we hear the Minister's answer.
Baroness Masham of Ilton: My Lords, perhaps I may ask my noble friend the Minister how long these payments will continue. Are they just crisis payments or will they go on to the rehabilitation stage? Will payments be only for nursing homes or will they be for other places? Otherwise, everyone will be taking nursing home status.
Baroness Hooper: My Lords, I respond first to the point raised by my noble friend Lord Mancroft. The reference to "authority" is to local government authority. I have been trying to relate this to the Bill because I realise that in the Bill we tend to refer to "local authorities" when speaking about local government authorities as opposed to health authorities, but in this instance we are referring to another Act and therefore to the terminology in that Act. I think the House will find that in that context the word "authority" is defined as a local government authority. Of course I will make absolutely sure that we are being entirely consistent.
In regard to the point raised by the noble Baroness, Lady Masham, I believe I said in moving the amendment that we feel that our amendments should go further than the request put on record by my noble friend Lord Mancroft; that they should go further than the provision of emergency nursing home care and include the provision of other community care services by local authorities.
Baroness Masham of Ilton: My Lords, can the noble Baroness say how far "further" is? Does it continue as long as it is needed?
Baroness Hooper: My Lords, we are running into difficulties in our procedures at this Report stage. With the leave of the House, I can say that "further" is used in the context of such community care services as there are available which will be, if necessary, those provided by voluntary organisations. In response to the other question raised by the noble Baroness, we do not want to be limiting about the length of time for which care is covered. It will be the length of time that is necessary for adequate assessments to take place.
Lord Carter: My Lords, with the leave of the House, I point out that there is something odd with
428
the drafting on the question of authority. The new subsection (1BB) follows subsection (1B) which refers to an authority that is a district health authority. One then immediately goes to subsection (1BB) which refers to an authority that is a local authority. The drafting is curious, to say the least.
Baroness Hooper: My Lords, with the leave of the House, I ask the noble Lord to look at subsection (1B). Above the reference to a "District Health Authority" there is reference to an authority with a small "a". That is why I said that we shall have to look at the matter. I take the point.
Lord Ennals: My Lords, if no indication is given as to how long temporary is, does the Minister not agree that there will be all kinds of argumentation with the authority about whether six months, three months or a year is necessary? Surely, there has to be some clarification of that.
Baroness Hooper: My Lords, with the leave of the House, I point out that our amendment says that as soon as practicable arrangements should be made. On the whole, that must be a short period. If there is a need for a longer period, obviously that will be possible.
Lord Mancroft: My Lords, before my noble friend finally sits down, which I am sure she is longing to do, I ask her to clarify the point that she made before. I am probably being very slow this afternoon. Can my noble friend say whether her amendment means that a voluntary sector establishment may not admit a patient without prior permission or arrangement with an authority? That is the crux on which the whole issue hangs. If that cannot be done then we are back where we started.
Baroness Hooper: My Lords, on the procedural question we are getting a little out of hand. Report stage requires that people speak only once to amendments, within reason.
Lord Ennals: My Lords, we are entitled to ask questions. If an amendment is moved which we do not understand, how can we possibly take a decision on it? I thought it was clear from earlier advice taken through the appropriate channels that we were entitled to ask questions; otherwise, what is a debate?
Baroness Hooper: My Lords, it clearly was not clear. I appreciate that questions have to be asked but there are limits to the number of questions that need to be asked. That intervention has caused me to forget almost entirely what my noble friend was asking me.
Lord Mancroft: My Lords, before my noble friend finally sat down, I was asking her whether or not her earlier words confirmed that voluntary organisations would need to have prior permission or authority from an authority before taking a patient. That is the most important point.
Baroness Hooper: My Lords, we would expect that a voluntary organisation offering the services that

429
come within the scope of this amendment would have a general arrangement with a local authority to provide facilities in urgent cases, but permission would not be required in each specific case.
Lord Swinfen: My Lords, my noble friend does not need to reply to me this afternoon, but I think—
Baroness Blatch: My Lords, it is Report stage and this is not a point of clarification. The noble Baroness has wound up on this amendment.
[Amendment No. 145A not moved.]
4.45 p.m.
Baroness Hooper Baroness Hooper moved Amendment No. 145B:
Page 48, line 22, at end insert:
("(1BB) Subsection (1B) above does not apply to the making by an authority of temporary arrangements for the accommodation of any person as a matter of urgency; but, as soon as practicable after any such temporary arrangements have been made, the authority shall seek the consent required by subsection (1B) above to the making of appropriate arrangements for the accommodation of the person concerned.").
Lord Allen of Abbeydale Lord Allen of Abbeydale moved Amendment No. 146:
Page 48, line 28, at end insert:
("(1D) Before arrangements are made by virtue of this section with any person, that person shall disclose to the local authority making the arrangements any relevant criminal convictions.
(1E) On request by a local authority, a police officer shall disclose to the authority any relevant criminal convictions of any person with whom it is proposed to make arrangements by virtue of this section.
(1F) Relevant criminal convictions for the purposes of subsections (1D) and (1E) above shall be specified in regulations made by the Secretary of State.
(1G) Any person in respect of whom a disclosure is made under subsection (1E) above shall be informed of the disclosure.").
The noble Lord said: My Lords, this amendment is a repeat of an amendment that I moved at Committee stage. I then withdrew it in the light of government assurances that the issues were under discussion. Since then I have heard no more. The amendment is concerned with the protection of especially vulnerable people, such as the elderly and infirm in residential homes. It stands out a mile that persons who have been convicted of certain types of offence such as manslaughter, blackmail, physical cruelty and some sexual offences should be precluded from running these homes. If there have been convictions then at the very least the registering authority should know about them before deciding how relevant they are.
We were told that the Government are thinking, in what I am bound to say appears to be a somewhat leisurely way, of altering the regulations under the Registered Homes Act 1984 to require that previous convictions are disclosed by an applicant. It is not clear to me whether the regulations would apply to all convictions, including, for example, traffic offences, or to certain types of offence.
Be that as it may, it is not much good going through all that procedure unless the record can be
430
checked with the police. It if were known that there was no check there could be a great temptation not to disclose a conviction in some far away place. Practical experience has shown that that is not a far-fetched idea. If it is known that there is to be a check—clearly, the applicant should be so informed—very few people would take the risk and the work falling on the police would be minimal.
As I know very well, checks with the police already take place in a number of areas where, as I see it, the need for protection is not so strong as it is in the case of the elderly and infirm people who are involved here. At Committee stage the noble Baroness, Lady Hooper, expressed sympathy and said that discussions were going on, but at that stage she said that she was not prepared to accept a need for primary legislation. I hope that we can now be told how those discussions have gone and how the Government propose to solve this question.
That is all I need say, but the brevity of my remarks should not be construed as meaning that the subject is not very important. It is. I beg to move.
Lord Renton: My Lords, I hope that my noble friends on the Front Bench will accept this amendment. It is very carefully conceived and drafted. There have been notorious cases—and some came within my own knowledge over the years—of people who have been convicted of sexual offences finding themselves employed looking after children. It is an alarming prospect that we should have legislation of this kind and not do something in the course of it to try to prevent a repetition of those circumstances.
The noble Lord, Lord Allen of Abbeydale, is quite right to invite your Lordships to take a very serious view of this matter. I earnestly hope that the Government will do the same.
Lord Ennals: My Lords, I can think of no answer that the Government can give. I entirely agree with everything said by the noble Lords, Lord Allen of Abbeydale and Lord Renton.
I spoke on this issue at Committee stage. As it stands, the Bill simply disqualifies persons who may have been convicted of an offence under the Registered Homes Act 1984 from being suitable persons for the purpose of the provision of community care services. It has one desired effect in that it provides a reason for withdrawing the registration of any home run by a person who has been so convicted. But it is a limited provision and offers no protection against racketeers whose offences did not spring from contraventions of the residential care legislation. As the noble Lord, Lord Allen of Abbeydale, said, it offers no protection against those who have committed offences of physical violence or sexual abuse.
Major problems arise in relation to the matter. People moving into the private sector of care—and there are many of them—are quite new to the sector. Any offences are most unlikely to have been committed in the residential sphere because such people were not previously in it. Contravention of the Registered Homes Act still does not prevent people from setting up a care home with fewer than

431
four beds where they can continue practices which led to their being disqualified from running homes with four or more beds. I am aware that the Government wish to deal with the regulation of small homes in another way and at another time; but here is one opportunity to introduce, along with safeguards for larger homes and other services, some small check on the background of those who wish to run small homes and with whom the local authority may wish to make arrangements.
That there are abuses is not questioned by Ministers; but they have appeared to rest somewhat too complacently on a requirement by registering authorities that applicants should declare any relevant convictions. There is no independent check or scrutiny. We believe strongly that there should be. That is one of the central points of the amendment. Eventually it will be possible to ask all applicants for jobs to supply details of their criminal record in a form supplied to them by the police. When that facility is generally available, there may be less need for a system which gives the local authority direct access to information held by the police.
The Government's anxiety about this matter has not seemed to focus on any civil liberties aspect of the subject, but on the ability of the police to deal with applications for information within a reasonable period of time. It is well known that the system, which was referred to in Committee, of securing information from the police has in some areas run into difficulties because of the time taken by the police to complete their inquiries and to reply. It might be said that to require more information in respect of another group of persons would cause more problems for the police. The fundamental issue is not whether we wish to protect the police from taking on additional work, but whether or not we wish to introduce the minimum degree of protection against exploitation by known criminals of vulnerable elderly people, of those with such severe disabilities that they need residential care and of others whose protection ought to rank highly in any list of priorities.
Finally, the argument in favour of the amendment is strengthened by the fact that it would provide a deterrent to those who know that their convictions would be revealed. They would know that they would not be able to get away with it. It is the case that not all convictions would serve as a disqualification—a point which I mentioned in Committee—but we would expect the Secretary of State together with the local authorities to develop guidance on the kind of discretion to be exercised in certain cases. Fraud and physical exploitation would probably be barriers—certainly to work which would present similar opportunities—but minor and wholly unrelated offences would not. There is an overwhelming case for the amendment. I agree strongly with the noble Lord, Lord Renton, that the Government should accept it.
Baroness Faithfull: My Lords, I rise to support the amendment. Directors of social services carry an awesome responsibility when delegating people to look after the very vulnerable. Unless they are helped
432
by the police, they will find themselves in serious difficulty.
I understand that the police feel that the amendment would mean a great deal of work for them. The Metropolitan Police have files on computer. The work could be done by a clerk and need not take up the time of a policeman. In the metropolitan area, the police are currently contacting collators at local police stations to get such information from them. That might mean that one would be told of a case that was perhaps pending, which would be wrong.
I must apologise to the noble Lord, Lord Allen, because I meant to discuss my next point with him before the amendment was called. However, I was unable to do so because I have been away. The amendment applies to local authorities but as the noble Lord, Lord Renton, will know, MENCAP has 274 homes. Would the amendment apply to voluntary organisations as well as to the local authorities? Would an application to the police have to go through the local authority? If that were the case, local authorities would be in some difficulty. I support the amendment.
Lord Winstanley: My Lords, I support the amendment. Some time ago I carried out an informal investigation into the personal circumstances of some elderly people in registered homes of this kind. Frankly, I was disturbed and faintly alarmed by the number of cases that I discovered in which a person running a home had acquired enduring power of attorney in respect of a resident. The Enduring Powers of Attorney Act is fairly new and could easily be used fraudulently if the wrong people were in the wrong position. The amendment seeks to ensure that some of the wrong people are not in the wrong position.
Lord Peyton of Yeovil: My Lords, I think it unnecessary to repeat the cogent arguments adduced in favour of the amendment. I would not think it necessary to argue it at any length were it not for one's acute awareness of the tendency of governments of all colours to show a knee-jerk reaction which leads them to reject all amendments and defend as though it were a matter of principle the integrity of their Bills, or what would be flatteringly described as the integrity of their Bills. In those circumstances, I want only to tell my noble friend that if the Government cannot see their way to accepting this very sensible and reasonable amendment, my surprise would overcome my desire to support them.
Lord Kilmarnock: My Lords, the arguments put forward in favour of the amendment are unanswerable. However, one broader consideration arises. With present demographic pressures in the population, it is inevitable that new people will come into this field with the aim of opening new residential homes. The Bill itself will mean that, with the closure of their own homes, local authorities will license more homes in the private sector. It is therefore important that the undoubted need for more homes should not become an excuse for lowering standards. That would be grossly irresponsible. The expanding

433
demand for this type of accommodation should lead to greater and not to less stringency. I hope that the Government will accept the amendment.
Baroness Masham of Ilton: My Lords, I support the amendment which seeks to protect vulnerable people who may be at risk in nursing homes. I wish to ask one question. Running some of the drug rehabilitation services are certain people with past criminal records. Would the amendment cause a problem? Perhaps we might have to have an amendment at the next stage of the Bill in order to exempt these people.
Lord Swinfen: My Lords, I support the amendment and particularly the words of my noble friend Lady Faithfull that it should be also be made to apply to homes run by voluntary organisations.
5.p.m.
Baroness Hooper: My Lords, this is undoubtedly an important and serious issue and one on which there is some strength of feeling in your Lordships' House. I wish to respond as positively as I can to the case that has been made. It is not inconsistent with my wish to be positive to argue, as I intend to, that the amendment should not be pursued. In our earlier debate on criminal record checks I described the safeguards that are already built into the system, so I shall try to deal briefly with the matter.
People in residential care and nursing homes are protected by the requirements of the Registered Homes Act 1984 and by the work local authorities and health authorities do to ensure that those requirements are met. The fitness of proprietors and managers to run such homes is a cardinal requirement. It is given considerable weight by authorities in considering applications for registration. Information from applicants about previous convictions is sought as part of the process. In the same way, the business of negotiating and agreeing contracts will include both a critical assessment of the fitness and suitability of the potential contractor and specification of the way quality control will be exercised by the authority.
There will of course be occasions when an authority's hand would be strengthened if it had free access to police records. As the noble Lord, Lord Ennals, and others have reminded us, we intend as soon as possible to amend regulations made under the Registered Homes Act so that applicants for registration are required by law to disclose previous convictions. This is an anomaly and it is only right that it should be removed.
As to the wider question of disclosure of police records raised by the noble Lord, Lord Allen of Abbeydale, and others, I have to tell the House with some regret that discussions between the Department of Health, the Home Office and the Association of Chief Police Officers have ended without agreement on the extension of the present disclosure arrangements. The association is not, I believe, unsympathetic in principle to providing information about the criminal records of those applying to run residential care homes and nursing homes. The need to protect vulnerable groups is
434
one of the criteria for making exceptions to the traditional confidentiality of police records. But the association is extremely, and understandably, concerned at the burden which forces are already having to bear because of the arrangements, set up in 1986, for vetting people whose work in schools, the health service and social services gives them substantial opportunity for access to children.
These arrangements generated 170,000 checks in 1986; a year later the number had more than doubled. At present 470,000 checks per annum are being made, and the rate is increasing. In addition, there are firm proposals to extend the child protection arrangements into the voluntary sector. The practicalities are being looked at in a series of pilot studies that are now well under way.
All this means extra work for the police. My noble friend Lady Faithfull said that it was merely necessary for a clerk to extract the information from a computer. However, it is obviously more than that because it has led the Association of Chief Police Officers to conclude that it could not commit the police service to more vetting work within existing resources.
However, some local authorities and police forces have come to local agreements to provide information from the criminal record in respect of care home proprietors and managers. But the service generally feels it must give priority to the child protection arrangements. I sympathise, as I hope the House will sympathise, with this view.
I turn now to the recommendation of the Select Committee on Home Affairs that legislation be introduced to establish an agency independent of the police to maintain a computerised national collection of criminal records. The committee recommended that such an agency should be responsible for providing criminal records for vetting purposes in accordance with principles prescribed in legislation and that the agency should charge for its services. The Home Office will respond formally to the report later this month and is establishing a scrutiny to explore the idea of a national criminal records agency.
We believe that it would therefore be premature to attempt to assess the significance of all these developments at this stage, but their existence is encouraging. Measured progress is being made and I believe that we should not attempt unrealistically to force the pace. I hope therefore that the movers of the amendment will feel able to withdraw it. Some queries were raised about whether the voluntary sector was included in the amendment. Obviously the noble Lord, Lord Allen, will respond on the point but it is my understanding that it is.
Baroness Seear: My Lords, before the noble Baroness sits down, I am sure that in the preparation for her reply to the amendment she herself or her officials must have asked what the numbers were likely to be. If the police are already carrying out inquiries into, I believe she said, over 100,000 cases, I cannot envisage that the percentage increase of cases required for homes will be so great. We shall not have homes sprouting like mushrooms all over the country. Once the system is established, the

435
number of cases will be small relative to the total. To hazard a guess, it should be a 5 per cent. increase at the outside. Has the noble Baroness made an estimate? I should have thought the figure would be negligible in relation to what the police are already doing.
Lord Renton: My Lords, before my noble friend replies and finally concludes, I wish to ask another question.
Baroness Hooper: My Lords, the figures I quoted were in relation to the child protection requirements. I do not have estimated figures to offer to the noble Baroness. But from experience and as a result of advice in discussions with the Association of Chief Police Officers, I do not believe that the association agrees with the noble Baroness that the number of cases that would have to be investigated would be small.
Lord Renton: My Lords, before my noble friend sits down, perhaps she would be good enough to deal with a matter which she did not deal with in her reply but which is truly relevant to the decision we have to take. I ask her to turn to page 48, line 23, the new subsection (1C) amending the previous legislation and also to this amendment. Does she not find that the amendment strengthens and makes a reality of the provision that the Government have put into subsection (1C)? It is therefore not breaking new ground but making effective what was proposed in the Bill. That is all it does.
Baroness Hooper: My Lords, I take my noble friend's point and his reference to Clause 43. However, I am not excluding all possibilities. I am simply saying in my response that in view of all the work that has been undertaken on this and the progress that we hope will be made, it is not timely to accept an amendment of this nature.
Lord Allen of Abbeydale: My Lords, I am grateful for the wide-ranging support from around the Chamber for this modest amendment. I have two comments to make to the point made by my noble friend Lady Masham. It is not suggested that a previous conviction would necessarily be a bar; it is a question of the authority knowing about the conviction and coming to a judgment on whether it would constitute a bar.
In reply to the noble Baroness, Lady Faithfull, I should say that it is a question of the registering authority knowing about convictions rather than the people who are responsible for the home. The measure would not involve a lot of extra work. There are not all that many registered homes. We are talking only about the owners and the people who run the homes. We are not talking about the staff. The fact is that without this precaution things have gone wrong and will continue to go wrong. I remain convinced that it is our duty to do what we can to protect these vulnerable people.
I have been trying to work it out, but I believe that I have spent 30 years of my official life dealing with the police. I rarely fell into the habit of doing
436
what the Association of Chief Police Officers told me to do. The association is entitled to express its view, but even the police will obey what is provided for by Parliament. I am sorry but I am afraid I must take the view of the House on this matter.
5.12 p.m.
On Question, Whether the said amendment (No. 146) shall be agreed to?
Their Lordships divided: Contents, 105; Not-Contents, 95.

DIVISION NO. 2

CONTENTS

Addington, L.

Kilmarnock, L.

Airedale, L.

Kinloss, Ly.

Allen of Abbeydale, L.

Kitchener, E.

[Teller.]

Lawrence, L.

Ardwick, L.

Listowel, E.

Auckland, L.

Llewelvn-Davies of Hastoe,

Aylestone, L.

B.

Birk, B.

Lloyd of Kilgerran, L.

Blackstone, B.

Longford, E.

Bonham-Carter, L.

Lovell-Davis, L.

Boston of Faversham, L.

Macaulay of Bragar, L.

Bottomley, L.

McIntosh of Haringey, L.

Broadbridge, L.

McNair, L.

Carmichael of Kelvingrove,

Masham of Ilton, B.

L.

Mayhew, L.

Carter, L.

Meston, L.

Cledwyn of Penrhos, L.

Milner of Leeds, L.

Clinton-Davis, L.

Molloy, L.

Cocks of Hartcliffe, L.

Morris of Castle Morris, L.

Crook, L.

Morris of Kenwood, L.

Darcy (de Knayth), B.

Mottistone, L.

David, B.

Nicol, B.

Dean of Beswick, L.

Northfield, L.

Diamond, L.

Ogmore, L.

Elliot of Harwood, B.

Oram, L.

Ennals, L.

Peston, L.

Ewart-Biggs, B.

Peyton of Yeovil, L.

Faithfull, B.

Phillips, B.

Falkender, B.

Pitt of Hampstead, L.

Fisher of Rednal, B.

Rea, L.

Foot, L.

Renton, L.

Gallacher, L.

Richard, L.

Galpern, L.

Rochester, L.

Graham of Edmonton, L.

Russell, E.

[Teller.]

Saltoun of Abernethy, Ly.

Grantchester, L.

Seear, B.

Greenhill of Harrow, L.

Seebohm, L.

Grey, E.

Serota, B.

Hampton, L.

Shaughnessy, L.

Hanworth, V.

Stedman, B.

Hatch of Lusby, L.

Stoddart of Swindon, L.

Hayter, L.

Strabolgi, L.

Hirshfield, L.

Swann, L.

Hollis of Heigham, B.

Swinfen, L.

Houghton of Sowerby, L.

Thomson of Monifieth, L.

Hughes, L.

Thurlow, L.

Hunter of Newington, L.

Tordoff, L.

Hylton-Foster, B.

Turner of Camden, B.

Irvine of Lairg, L.

Wallace of Coslany, L.

Jay, L.

Whaddon, L.

Jeger, B.

White, B.

Jenkins of Hillhead, L.

Williams of Elvel, L.

Jenkins of Putney, L.

Winstanley, L.

John-Mackie, L.

Young of Dartington, L.

Kilbracken, L.

NOT-CONTENTS

Aldington, L.

Belstead, L.

Alexander of Tunis, E.

Bessborough, E.

Allenby of Megiddo, V.

Blatch, B.

Ashbourne, L.

Borthwick, L.

Atholl, D.

Boyd-Carpenter, L.

Balfour, E.

Brougham and Vaux, L.

Beloff, L.

Butterworth, L.

437

Caithness, E.

Margadale, L.

Campbell of Alloway, L.

Merrivale, L.

Carnegy of Lour, B.

Mersey, V.

Carnock, L.

Milverton, L.

Cavendish of Furness, L.

Monteagle of Brandon, L.

Chesham, L.

Morris, L.

Colwyn, L.

Mountevans, L.

Constantine of Stanmore, L.

Munster, E.

Cork and Orrery, E.

Nelson, E.

Cottesloe, L.

Nugent of Guildford, L.

Cullen of Ashbourne, L.

Orkney, E.

Cumberlege, B.

Orr-Ewing, L.

Dacre of Glanton, L.

Oxfuird, V.

Davidson, V. [Teller.]

Pender, L.

Denham, L. [Teller.]

Plummer of St. Marylebone,

Dilhorne, V.

L.

Eccles of Moulton, B.

Prior, L.

Eden of Winton, L.

Quinton, L.

Elibank, L.

Rankeillour, L.

Elles, B.

Reay, L.

Elton, L.

Saint Albans, D.

Ferrers, E.

Sanderson of Bowden, L.

Foley, L.

Selborne, E.

Fraser of Carmyllie, L.

Sempill, Ly.

Gainford, L.

Stanley of Alderley, L.

Gisborough, L.

Strathcarron, L.

Gridley, L

Strathclyde, L.

Harmar-Nicholls, L.

Strathcona and Mount

Havers, L,

Royal, L.

Henley, L.

Strathmore and Kinghorne,

Hesketh, L.

E.

Hives, L.

Swinton, E.

Hooper, B.

Thomas of Gwydir, L.

Ironside, L.

Trefgarne, L.

Killearn, L.

Trumpington, B.

Lauderdale, E.

Ullswater, V.

Layton, L.

Vaux of Harrowden, L.

Long, V.

Wade of Chorlton, L.

Lucas of Chilworth, L.

Wedgwood, L.

Lyell, L.

Westbury, L.

McColl of Dulwich, L.

Whitelaw, V.

Manchester, D.

Young, B.

On Question, amendment agreed to.

Resolved in the affirmative, and amendment agreed to accordingly.
5.19 p.m.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley)The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley) moved Amendment No. 146A:
Page 48, line 31, after ("and") insert ("subject to subsection (3A) below").
The noble Lord said: My Lords, in moving Amendment No. 146A I should like to speak to Amendment No. 146B, Amendment No. 209A in the name of my noble friend Lord Sanderson and also to Amendment No. 147 in the name of the noble Lord, Lord Carter.
When we discussed this point in Committee I said that I would come back with an amendment later to address the problem which we accept that the proposed payment arrangements would cause for voluntary organisations providing accommodation as housing associations. Amendments Nos. 146A and 146B are the result. It may help if I explain what the amendments do.
Briefly, they provide an alternative method of payment for use where the local authority, the provider of the accommodation and the user agree. Under the alternative arrangement the user will pay the part of the cost of the accommodation he can meet from his resources, including income support and housing benefit, direct to the provider. The local authority will then pay the balance of the cost, rather
438
than the full cost which it would otherwise be liable to pay under Section 26(2) of the 1948 Act. The local authority will work out what the user should pay using the same rules as it would use to work out what a user would pay it if it were paying the full cost of the accommodation. Thus both the user and the local authority will pay the same in both instances. However, instead of the local authority meeting the full cost and the user paying his share to the authority, the local authority and user will both pay their shares direct to the provider.
This alternative arrangement will permit the provider and user to form a normal landlord/tenant relationship. We have discussed this with the Housing Corporation which has confirmed that, if that is so, the funding will not be endangered. This appears to meet the concerns expressed by the Committee, which I accept were fully justified. I commend the amendments to the House and hope that the noble Lord, Lord Carter, will not feel it necessary to move his amendment, which seeks the same worthy objective, in favour of the government amendments.
Lord Carter: My Lords, I am extremely grateful to the Minister. The amendment is the result of an undertaking that the Government gave at Committee stage to deal with the problem. We feel that the amendments do so.
There are just a couple of points that I should like to raise. First, the amendments do not deal with the problem of notional rent, which we shall be dealing with under Amendment No. 155. If the level of notional rent is set too low there will still be a problem for housing associations.
There is still some concern among organisations regarding the need for the three-way agreement between the authority, the housing provider and the voluntary agency. There is a worry that there is a potential for dispute between the agencies which could still lead to the scheme being frustrated. Can the Minister say whether the Government have any intention of addressing the issue either in the Bill or through regulations?
Baroness Gardner of Parkes: My Lords, I am particularly pleased to see the amendments. Can the Minister confirm that we can be reassured that housing association grant will now be available for providing such homes? There was some concern that if a mentally handicapped person, for example, was not technically paying rent but was instead being sponsored by the social services which were paying the costs entirely on his or her behalf, the fact that no rent was visible would mean that no housing asociation grant could be made available for the construction of the property. Housing associations which are either currently involved or have in the pipeline well-advanced plans to provide accommodation for the categories which are so desperately in need of it were very worried that the Bill might have prevented them from providing such accommodation and obtaining the necessary grant to do so. As I understand it the amendments will mean that housing association grant will remain available. Subject to confirmation of that point I support the amendment.
Lord Henley: My Lords, I confirm that my noble friend's interpretation is correct. Regarding the points made by the noble Lord, Lord Carter, I look forward to Amendment No. 155 which we shall discuss later today. I shall have to consider his second point and come back to him on the matter. If there is a suitable moment during the consideration of some other amendment I shall respond at that stage.
Lord Henley Lord Henley moved Amendment No. 146B:
Page 48, line 35, at end insert:
("(3A) At the beginning of subsection (3) of that section (liability of persons for whom accommodation is provided to make refunds to the local authority) there shall be inserted "Subject to subsection (3A) below" and after that subsection there shall be inserted the following subsection—
"(3A) Where accommodation in any premises is provided for any person under arrangements made by virtue of this section and the local authority, the person concerned and the voluntary organisation or other person managing the premises (in this subsection referred to as "the provider") agree that this subsection shall apply—

(a) so long as the person concerned makes the payments for which he is liable under paragraph (b) below, he shall not be liable to make any refund under subsection (3) above and the local authority shall not be liable to make any payment under subsection (2) above in respect of the accommodation provided for him;

(b) the person concerned shall be liable to pay to the provider such sums as he would otherwise (under subsection (3) above) be liable to pay by way of refund to the local authority; and

(c) the local authority shall be liable to pay to the provider the difference between the sums paid by virtue of paragraph (b) above and the payments which, but for paragraph (a) above, the authority would be liable to pay under subsection (2) above."").

[Amendment No. 147 not moved.]
Baroness Hooper Baroness Hooper moved Amendment No. 147A:
Page 48. line 45, leave out ("other person") and insert ("any person carrying on, professionally or by way of trade or business, activities which consist of or include the provision of services for any of the persons to whom section 29 above applies").
The noble Baroness said: My Lords, we have made it clear throughout our community care proposals that we want local authorities to exercise an enabling role in the provision of community care services.
Our intention always was that local authorities should only make arrangements for the provision of services for payment with persons professionally engaged in providing those services or otherwise providing them by way of business or trade. It was never our intention that local authorities should be able to pay people who would have provided these services on a non-commercial basis and the amendments which we have introduced into the Bill make this clear. We feel that the amendments are needed to protect local authorities from presssure to use their powers to make arrangements with private providers in ways in which the Government never intended. The amendments are therefore necessary to clarify Section 30 of the National Assistance Act 1948 and Section 45 of the Health Services and Public Health Act 1968.
In moving Amendment No. 147A I am also speaking to Amendment No. 147B. I beg to move.
Baroness Hooper Baroness Hooper moved Amendment No. 147B:
Page 49, line 1, leave out ("other person") and insert ("any person carrying on, professionally or by way of trade or business, activities which consist of or include the provision of services for old people").
5.30 p.m.
Baroness Masham of Ilton Baroness Masham of Ilton moved Amendment No. 148:
After Clause 43, insert the following new clause:
("Residential services for persons currently or recently dependent upon drugs or alcohol

(1) The Secretary of State shall make transitional arrangements, which shall come into force on 1st April 1991, and which satisfy subsection (2) below in respect of those voluntary organisations in receipt of funds or other assistance from local authorities given in connection with the exercise of their community care functions providing residential care under the Registered Homes Act 1984 for persons who are now or were recently dependent upon drugs or alcohol.

(2) The arrangement referred to in subsection (1) above shall provide for monies, to be paid by the Secretary of State with the approval of the Treasury and provided by Parliament, to be available for the making of grants to voluntary organisations referred to in subsection (1) above for the continuation of those services, where those services would otherwise no longer be available, and to continue to be made until such time as the Secretary of State is satisfied that other funds are available and adequate to ensure the continuation of those services.").

The noble Baroness said: My Lords, I hope that this amendment will give us an opportunity to receive clarification because I am not sure whether the amendment which the noble Baroness moved on the same subject incorporates what we are trying to achieve here.
The new clauses arise from the difficulties which will be caused for residential drug and alcohol projects by the change in funding mechanisms proposed by the Bill which are likely to lead to the closure of large numbers of residential projects within a few months of the Bill being enacted. The amendment seeks to safeguard residential drug and alcohol services, until such time as permanent funding mechanisms are seen to be operating satisfactorily, through provision for transitional grants to be made where services would otherwise be forced to close.
The White Paper Caring for People states that many people need extra help at some stage in their lives and notes that people with drug and alcohol-related disorders may need community care at some time. In the Bill, however, there is no specific reference to drugs and alcohol. During the Committee stage debate the noble Baroness, Lady Blatch, was asked if she could given an unequivocal assurance that people with drug and alcohol problems are included. She replied:
"I can give an unequivocal answer. The answer is yes. Whether the person is suffering from an alcohol-related problem, from drug abuse or whatever it may be, if a local authority deems there to be a need for provision, it is the local authority's duty to respond to that need. Those groups are included".—[Official Report. 8/5/90; col. 1274.]
Alcohol services have always received very low priority for funding from social service departments despite the fact that alcohol problems are not only damaging to the individual but also cause far more social and economic harm than any other equivalent problem. The Bill reflects that neglect in making no explicit reference to provision for people with alcohol or drug problems.
Problem drinkers are a largely hidden population who, because of the stigma, make very few direct and explicit demands upon social services. They are far more likely to approach a specialist alcohol agency. Alcohol problems are often seen as self-induced and are not a politically attractive option when set in competition for resources against other vulnerable groups. There is no statutory responsibility to provide services. The blurred division of responsibility between health and local authorities has meant that some authorities have failed to recognise or accept their share of that responsibility.
Perhaps I may now turn to the problem for the residential alcohol services sector. Residential services are currently funded by board and lodging payments. There are some regional variations, but the standard position in London is that a project will receive £173 per week made up of £40.60 rent, £29.40 food and £103 extra care. The extra care payment contributes towards social work costs. From April 1991 the extra care payment will cease to be paid for any new resident moving into a residential scheme. Instead, the Department of Social Services will transfer to local authorities an equivalent sum, and all referrals and funding will be via the local authority.
There are a number of serious problems with that. Clients presently seen by voluntary alcohol services put a high premium on confidentiality and are unlikely ever to approach a local authority in that way. Individual clients often have only tenuous links with any local authority. That is particularly the case for homeless problem drinkers. The number of local authorities with which most agencies would need to have formal arrangements would be extremely high as referrals come from a wide range of sources. Local authorities do not have expertise in that field of assessment. The vast majority of local authorities do not currently take any responsibility for services to problem drinkers and nowhere are they considered a priority. It is therefore extremely unlikely that local authorities will be able or willing to provide top-up funding for care costs at the levels which will be needed if current services are to be maintained and residential alcohol projects are to be prevented from being forced into closure.
Evidence to confirm that view is already mounting. A survey of 12 local authorities which have already begun planning their community care services showed that not one had made any provision for alcohol services, and that at least two had not been aware that they would inherit any kind of responsibility for funding clients in residential alcohol projects.
That is an urgent problem. The new funding arrangements apply only to those who enter residential care after the implementation date of 1st
442
April 1991 and for those in, say, the elderly field that offers a gradual transition to the new system spread over a period of several years. However, for drug and alcohol projects, that is not the case.
In the alcohol field, the turnover of clients ranges from a few days in detoxification and crisis centres, to a few weeks in assessment units and to three to six months in rehabilitation projects. That means that the switch to the new system will be completed almost immediately and will leave no time for difficulties to be ironed out before projects feel the full impact of the changes.
Voluntary organisations such as those running residential homes do not have large cash reserves, and closures would begin to occur as early as the summer of 1991. It is therefore vital that transitional funding arrangements are already in place in order to safeguard existing services until such time as a new funding system can be seen to operate effectively for residential alcohol and drug projects.
I hope that we shall have clarification on that issue. There are many worried people in the community. I beg to move.
Lord Ennals: My Lords, this amendment stands in my name as well as that of the noble Baroness, Lady Masham. She has made an overwhelming case, and I simply wish to summarise one or two points.
However, before doing so, I should say that I doubt from earlier debates whether the Government realise the extent of the danger that those voluntary organisations now face in the drug and alcohol field. When the noble Baroness warns that there may be massive closures, the Government must accept that that is true. It is a disturbing situation and it could all happen so quickly if the Government are not prepared to accept this amendment or another like it. Sometimes, when the Government are faced with a problem that the wording of an amendment seems to be excessive for them, they wisely take it away and consider it. I hope that, if they are not satisfied with the wording of this amendment, they will perhaps offer to do that.
The anxieties stem from four principal points. First, there is the impossibility of negotiating separate funding arrangements with the relevant local authority for each individual client where a relatively small voluntary organisation is taking hundreds of referrals a year from all over the country. Secondly, there is the lack of any statutory obligation to provide alcohol services and the lack of any clear reference to alcohol services within the scope of the Bill. I have already referred to that point on an earlier amendment which the Government rejected. It is because the Government object to those points being written into the Bill that the problem arises. Thirdly, there is the low priority generally given to alcohol services by social services departments, as the noble Baroness, Lady Masham, said, and the firm indication from social services departments that that lack of priority is likely to continue as they struggle to meet their statutory responsibilities under the new legislation. Fourthly, there is the rapid turnover of clients in alcohol projects which means that the full impact of the legislation will be felt

443
almost immediately with the first closures likely to take place within a few months of the April start date.
Those difficulties are the inadvertent by-products of a Bill which appears to have been framed with other groups as the principal focus and were clearly not intended by those drafting the Bill. Although the Government are perhaps beginning to recognise those difficulties, there have as yet been no measures taken to address the urgency of the situation. No doubt with time and goodwill, all the difficulties can be resolved. I am sure that the goodwill exists. It certainly exists among voluntary organisations, but time is in very short supply.
The amendment would provide the breathing space to safeguard existing projects while effective funding mechanisms are developed. Without such a provision, goodwill alone will not be enough to save the majority of residential projects from closure. The Government must recognise the urgency of the position. I hope that they will accept the amendment or, if they do not, that they will take it away to consider it.
Baroness Hooper: My Lords, I appreciate the anxiety that lies behind the amendment. I can assure noble Lords that the Government fully recognise the importance of residential care for drug and alcohol misusers and the care that the voluntary sector provides. I have had a series of meetings with representatives of the voluntary sector about this subject and was invited to respond to the all-party group on those matters in another place. We are therefore well aware of the problem.
Concern has been expressed that local authorities may ignore residential services for drug and alcohol misusers in their community care provision, in part because it has been suggested that many of them have little experience in this field and also perhaps because this group of clients may not be politically attractive. However, my right honourable friend the Secretary of State for Health has made clear that he will require local authorities to include services for drug and alcohol misusers in their community care plans.
Lord Ennals: My Lords, when the noble Baroness says that "the Secretary of State will require", how does he require other than by legislation?
Baroness Hooper: By direction, my Lords. I have also ensured that express reference is made to these services in the draft guidance to which reference has already been made and which is due out tomorrow. This should ensure that services for these clients are considered by local authorities on an equal footing with services for other client groups.
The Government's objective is to ensure that local authorities make informed decisions about the priority that each aspect of community care provision will attract. To single out any particular aspect of service provision would tie the hands of local authorities and make it hard for them to set about this important task in a rational way. The Government do not wish to make any sort of
444
statement that community care provision for any one client group is more important than provision for any other, and I fear that the noble Baroness's amendment asks the Government to do exactly that.
It may be—I accept—that what lies in part behind the amendment is a concern that in the transitional period the process of implementation up to and immediately following April 1991 may not go smoothly in its initial stages and that during the course of the transition the services provided by the voluntary sector may be damaged. Once again, I fully appreciated that concern. As I have said, many local authorities have little experience of providing services for drug and alcohol misusers, since that has been in the domain of health authorities up to now, or indeed of liaison with the voluntary organisations that are active in this field.
I appreciate that also many voluntary organisations do not have large financial reserves which would enable them to withstand a significant interruption in their cash flow. However, we believe that the way to get round those difficulties is to have proper consultation and planning rather than through the introduction of any special financial arrangements. I can assure your Lordships that consultation and planning are matters that will be very seriously addressed.
Furthermore, I remind noble Lords that we are continuing to provide substantial central government funds in this respect, in addition to the £15·5 million of earmarked funds for regional health authorities to develop local services in 1990–91, of which £9·5 million are to be used to expand services to take account of HIV and drug users with AIDS. That exists and it is expected to continue for the foreseeable future. Further, the current campaign of education and information on drug services launched in February 1990 made available a further £3·8 million and that too will overlap into 1991. I am talking about matters to cover the difficult transitional period. An additional £4·3 million has been made available to Alcohol Concern to improve and extend the existing network of local councils on alcohol. That is in addition to the recent appointments of regional drug co-ordinators and regional alcohol abuse co-ordinators, who are doing an important and useful job at grass-roots level.
A lot has been and is being done to help the voluntary sector in its important work, which I believe would not be helped by this amendment. I hope that what I have said and the reassurance that I have been able to give will enable the noble Baroness to withdraw her amendment.
Lord Ennals: My Lords, before the noble Baroness sits down, will she accept that it is precisely the voluntary organisations, with whom I know she has been in consultation, that support this amendment? Was the impression that she gained from her consultation with them that in fact they thought that this amendment was the way to deal with the problem?
Baroness Hooper: My Lords, with the leave of the House, all the organisations that I met intimated

445
that they had been considerably reassured by what I had to say to them; but no doubt everybody wished to build on what is on offer.
5.45 p.m.
Baroness Masham of Ilton: My Lords, alcohol is a particularly problematical thing. So many people enjoy it, including many of your Lordships. Sadly, with alcohol, some people fall by the wayside and become very ill. They do not just get drunk and have a hangover; they become ill. Their livers pack up and eventually they die. However, before that happens the problem can cause the break-up of many families. Alcoholism is perhaps one of the biggest causes of family break-up that is known.
The drug problem also exists. I do not think that the Government can see the need for this interim funding, but sadly it is the people who want to come off drugs who go into treatment. If there is no treatment and places have to close down, those people will be on the streets. They will be back with their colleagues, stealing and breaking into cars and will eventually land up in prison, and our prisons are full enough.
As I said when I moved the amendment, this matter has a very low priority. I am sure that if the noble Baroness, Lady Faithfull, were present, she would say that children have to be the priority. There are so many priorities. Indeed, child abuse is one of the first that springs to mind. So this issue has a low priority. The Government, I think, have realised it; indeed, the noble Baroness, Lady Hooper, said so herself.
At this stage I should like to consult further with the organisations, wait until we see what comes out tomorrow and then bring this matter back again at Third Reading. This is a very important issue. I said that the local authorities had not realised what had to be done. This is a new responsibility landing on their plate. I think that we need a little more time to consider this very important matter. Therefore I shall withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 57 [Residential accommodation with nursing]:
The Minister of State, Scottish Office (Lord Sanderson of Bowden)The Minister of State, Scottish Office (Lord Sanderson of Bowden) moved Amendment No. 148A:
Page 61, line 37, leave out ("arrangements") and insert ("such arrangements as they consider appropriate and adequate").
The noble Lord said: My Lords, this amendment clarifies the nature of the duty on local authorities under new Section 13A of the Social Work (Scotland) Act 1968 to provide residential care with nursing. It picks up the wording of Section 12 of the 1968 Act which deals with other residential accommodation. I beg to move.
Clause 44 [Exclusion of powers to provide accommodation in certain cases]:
Baroness Seear Baroness Seear moved Amendment No. 149:
Page 49, leave out lines 26 to 30 and insert:
("(3) Subsection (1) of this section shall not apply to—

(a) persons in "relevant premises" unable to meet the fees in the said premises and to whom care is not otherwise available,

(b) other such classes of person as the Secretary of State may by regulation prescribe.

(4) The Secretary of State shall make grants out of money provided by Parliament towards any expenses of local authorities incurred under subsection (3)(a) above.").
The noble Baroness said: My Lords, this is a very familiar subject. It concerns people in voluntary and private residential homes whose incomes are not sufficient from income support with the rising prices to be able to pay their bills. We have put this matter before noble Lords on a number of occasions and have not got anywhere. Would the Government give us the best news of all and tell us that they accept the amendment? If not, will they say what is to happen to those people? They cannot pay their bills and it is a familiar position. Are they to be flung out of the institution? If so, where are they to go? Alternatively, is it expected that the voluntary and private organisations will foot the bill on their behalf? If so, where will they obtain the money from?
It is Report stage. I shall not make a long speech. I beg to move.
Lord Carter: My Lords, as the noble Baroness said, we have been over this ground a number of times. We have been unable to convince the Government. However, we intend to keep on trying.
We are talking about 180,000 residents in private and voluntary residential nursing homes in receipt of income support. All are at risk of shortfall between the level of income support and the fees that are charged.
I shall not take the time of the House by repeating the arguments because the Minister knows them well. We are talking of elderly, infirm and disabled people under great strain. The strain is on them, their relatives and those who care for them. We have evidence from all over the country that the shortfall can be as much as £60 a week. It is certainly £30 a week in a number of cases despite the increases that the Government gave in April and August. I hope that the Minister will accept the strength of the arguments this time.
Lord Henley: My Lords, as the movers of the amendment, the noble Baroness, Lady Seear, and the noble Lord, Lord Carter, said, we have been over this ground. We have been over it once before on this Bill and twice on the Social Security Bill. Perhaps I may remind the movers of the amendment that when we last went over the ground, as they put it, on 10th May, which was the sixth day of the Committee stage of the Bill, the Committee divided on an amendment that was virtually identical. It decided by 90 votes to 112 to reject that amendment. It is quite wrong and improper for noble Lords to come back again with virtually the same amendment on the same Bill.
Lord Carter: My Lords, on a point of information, if it had been improper, I presume that the amendment would not have been accepted.
Lord Henley: My Lords, I said that the amendment had virtually the same effect. The amendment was rejected by the Committee on that occasion. It is not right that the noble Baroness and the noble Lord should bring it back on a later occasion.
Nevertheless, despite the fact that neither the noble Baroness nor the noble Lord spoke to the amendment, I have every intention of doing so. I shall set out the Government's case again. It is a good case. I shall repeat what I said on a earlier occasion, setting out what we are doing and what we have done.
Baroness Seear: My Lords, I cannot follow my noble friend's argument. If it were improper for us to have tabled the amendment, the clerks would have said that it could not be accepted. We must rely on the clerks' judgment on such matters.
Lord Mottistone: My Lords, let us keep to the spirit of the rules.
Lord Henley: My Lords, I thank my noble friend for that remark. I have no idea how the clerks decide what is right or wrong. The noble Baroness knows full well that the effect of her amendment is virtually identical to that of the previous amendment, although the wording is very different. The previous amendment was much longer.
Nevertheless, I intend to answer the points that the noble Baroness and the noble Lord have made because the Government's case is a good one. We recognise the very real need to give as much reassurance as possible to those who are currently residents in homes and on benefit. In addressing the new clause and the anxieties of the two movers—which they have not expressed on this occasion but did so on an earlier occasion—I must remind the House that one of the key reasons that the Government have decided to continue the income support system for people who are resident in homes at the point of change to the new arrangements was to enable local authorities to concentrate on their primary task after April 1991: that is, to provide an effective service for those turning to them for help for the first time under the new arrangements. This clause would detract from that effort. Moreover, the fact that in this case the Secretary of State would be required to reimburse the local authority for the money spent on the preserved cases would mean that they would be taking decisions on the help that they should give without any budgetary discipline.
We have heard much about the blank cheque. I believe that I used that expression on a previous occasion. I make no apology for that. But this is yet again the blank cheque approach. The Government are therefore clear that it is an issue which has primarily to be addressed through the social security system. The issue of the income support system for people in homes has, to say the least, been extensively debated, as I have already said, during the passage of this Bill, and of the Social Security Bill, both in this House and in another place. There
448
are three separate themes in the Government's response, and that response renders this new clause unnecessary.
In April we increased the weekly benefit of virtually all existing claimants in homes by £10 a week at an additional cost of over £100 million. I remind the House that that is over an existing expenditure of £1,100 million. We are also introducing a second stage of this increase in the limits in 1990–91. In addition to the changes already made, from 13th August there will be further targeted increases to all income support limits to help maintain their value during the coming year. The House will be aware that more than 200,000 people will benefit from those additional increases.
My right honourable friend the Secretary of State has also undertaken to make a thorough assessment of the position and to look carefully at the levels and structure of income support limits as they would apply from 1991. He is particularly concerned to have more and better information on the true costs of running residential care and nursing homes. Tendering for a research project has begun and details will be announced shortly.
In setting the limits for income support my right honourable friend wants to be able to use the information that will become available as a result of practical decisions and negotiations by local authorities after 1991. To this end the Social Security Bill currently before this House contains a new provision which confirms his powers to do just that: to set local limits for income support taking into account evidence supplied to him by local authorities about the charges that they will be meeting for residents in homes under the new arrangements.
I hope that the House will recognise that it is a thorough, practical and sensible response in what we freely admit is a highly complicated and sensitive area. All the various suggestions that have now been put to us have not altered my conviction that ours is the realistic way forward.
However, we recognise that there will always be some people whose care needs will be such that they cannot be catered for within the income support scheme. We have already announced that we will take three measures to help such people. First, if it is a question of someone remaining in a particular home where the fees are above the income support limits, it will still be possible to disregard any help they receive from relatives or charitable sources so that they can remain in the home of their choice. Secondly, since many of the people with exceptional care needs are likely to be younger physically disabled people, local authorities will be given power to "top up" fees for people under pension age as they can now. Thirdly, if someone over pension age cannot afford fees and is likely to be asked to leave the home as a result, the local authority will be able to arrange care for them in a home under local authority management.
I return to what I said at the beginning of the amendment. The question has been debated on many occasions. On 10th May the Committee rejected a very similar clause. I hope that having given my explanation, the movers will feel prepared to withdraw their amendment.
Lord Carter: My Lords, on a point of information, we should make clear that the amendment is wholly different from the one we discussed previously. It is no good the Minister saying, "Pah!". The amendment simply asks that local authorities be able to assist those over pension age. It is wholly different in terms and in spirit from that which was debated and divided on previously.
Lord Peston: My Lords, I assume that the noble Lord will not reply to that remark. I hope that he will not be as ratty with me as he was with my noble friend Lord Carter, and the noble Baroness, Lady Seear. The noble Baroness asked a very straightforward question.
Lord Mottistone: My Lords, I do not believe that it is appropriate at Report stage for the noble Lord to intervene.
Lord Boyd-Carpenter: Hear, hear!
Lord Mottistone: My Lords, my noble friend had sat down and the noble Lord did not intervene by saying, "Before the noble Lord sits down".
Lord Peston: My Lords, I am in difficulty because I am not clear whether I am allowed to reply to the noble Lord, Lord Mottistone, at Report stage. I consulted the clerks on this matter, as I explained to him last week. I was told that I could ask a question and that there was no need to use any particular phraseology. I am about to ask a very simple question and I should like to be able to do so without interruption so that we do not waste time. The noble Baroness, Lady Seear, asked the noble Lord the central question; namely, what will happen if someone cannot pay? The issue revolves around that question and it concerns us the most. We have not yet received an answer. I believe that we are entitled to a simple answer to a simple question.
Baroness Seear: My Lords, in order to save time because my question is supplementary—
Lord Belstead: Order, order!
Baroness Seear: I wish to clarify a point made by the Minister and the answer will make all the difference when I decide whether to call for the opinion of the House.
Baroness Phillips: Just say "by leave". That will satisfy them.
Baroness Seear: My Lords, the Minister said that a local authority could move someone from a private home for which they could not pay into a local authority home. Did he say that the local authority would be under an obligation to do so, which will meet our point, or that it would have the power to do so? If he said that it would be under an obligation to do so I am satisfied. Surely, if I may say so to the Leader of the House, it is entirely reasonable to ask for clarification.
Lord Belstead: My Lords, I apologise to the noble Baroness, Lady Seear, who moved the amendment. However, I assume that she will not speak yet again.
Lord Henley: My Lords, I apologise if the noble Lord, Lord Peston, felt that I was "ratty", as he put it, in my response to the noble Lord, Lord Carter, and the noble Baroness, Lady Seear. I was being perfectly fair. It is obvious that the amendment has exactly the same effect as the one moved previously. It was right and fair of me to state that clearly in order that your Lordships were aware that we had debated the subject at great length on three separate occasions. Indeed, the subject was debated at great length in another place. We have voted on an amendment which had a virtually identical effect. As I then said, the effect was the blank cheque book approach, as is the effect of this amendment.
The noble Lord, Lord Peston, asked what we were doing now. I stated clearly, if he had listened to me, what we were doing—and I come to the point raised by the noble Baroness, Lady Seear. I said that the local authority will have the power to arrange care for people in a home under its management if it so wishes.
Baroness Seear: My Lords, venturing to displease the Minister again, if he had said that the local authority had a duty I should have been entirely satisfied. However, he has said only that it has the power. Will he take the amendment away and say whether at Third Reading he will consider making it a duty? If he will do so I shall not divide the House. If he will not I shall divide the House.
Lord Henley: My Lords, no.
Baroness Seear; My Lords, I ask for the opinion of the House.
6.2 p.m.
On Question, Whether the said amendment (No. 149) shall be agreed to?
Their Lordships divided: Contents, 74; Not-Contents, 106.

DIVISION NO. 3

CONTENTS

Airedale, L.

Glasgow, E.

Allen of Abbeydale, L.

Graham of Edmonton, L.

Ardwick, L.

[Teller.]

Aylestone, L.

Hampton, L.

Birk, B.

Hanworth, V.

Boston of Faversham, L.

Hatch of Lusby, L.

Bottomley, L.

Hayter, L.

Carmichael of Kelvingrove,

Hollis of Heigham, B.

L.

Houghton of Sowerby, L.

Carter, L.

Hughes, L.

Clinton-Davis, L.

Jay, L.

Cocks of Hartcliffe, L.

Jeger, B.

Darcy (de Knayth), B.

Jenkins of Hillhead, L.

David, B.

Jenkins of Putney, L.

Dean of Beswick, L.

John-Mackie, L.

Ennals, L.

Kilbracken, L.

Ewart-Biggs, B.

Kilmarnock, L.

Falkender, B.

Lawrence, L.

Foot, L.

Listowel, E.

Gallacher, L.

Llewelyn-Davies of Hastoe,

Galpern, L.

B.

451

Lloyd of Kilgerran, L.

Robson of Kiddington, B.

Lovell-Davis, L.

Rochester, L.

Macaulay of Bragar, L.

Russell, E.

McIntosh of Haringey, L.

Saltoun of Abernethy, Ly.

Masham of Ilton, B.

Seear, B. [Teller.]

Mayhew, L.

Serota, B.

Molloy, L.

Stoddart of Swindon, L.

Monson, L.

Strabolgi, L.

Morris of Castle Morris, L.

Thomson of Monifieth, L.

Morris of Kenwood, L.

Tordoff, L.

Nicol, B.

Turner of Camden, B.

Northfield, L.

Wallace of Coslany, L.

Ogmore, L.

Whaddon, L.

Peston, L.

White, B.

Phillips, B.

Williams of Elvel, L.

Pitt of Hampstead, L.

Winstanley, L.

Rea, L.

Wise, L.

Richard, L.

NOT-CONTENTS

Alexander of Tunis, E.

Kitchener, E.

Allenby of Megiddo, V.

Long, V.

Arran, E.

Lucas of Chilworth, L.

Ashbourne, L.

Lyell, L.

Atholl, D.

McColl of Dulwich, L.

Auckland, L.

Mancroft, L.

Balfour, E.

Margadale, L.

Beloff, L.

Merrivale, L.

Belstead, L.

Mersey, V.

Blatch, B.

Milverton, L.

Borthwick, L.

Monteagle of Brandon, L.

Boyd-Carpenter, L.

Morris, L.

Braye, B.

Mottistone, L.

Brightman, L.

Mountevans, L.

Brougham and Vaux, L.

Munster, E.

Butterworth, L.

Nelson, E.

Caccia, L.

Nugent of Guildford, L.

Campbell of Alloway, L.

Orkney, E.

Campbell of Croy, L.

Orr-Ewing, L.

Carnegy of Lour, B.

Oxfuird, V.

Carnock, L.

Peyton of Yeovil, L.

Cavendish of Furness, L.

Plummer of St. Marylebone,

Chesham, L.

L.

Constantine of Stanmore, L.

Prior, L.

Cork and Orrery, E.

Quinton, L.

Cox, B.

Rankeillour, L.

Craigavon, V.

Reay, L.

Crook, L.

Renton, L.

Cullen of Ashbourne, L.

Renwick, L.

Cumberlege, B.

Saint Albans, D.

Dacre of Glanton, L.

St. John of Bletso, L.

Davidson, V. [Teller.]

St. John of Fawsley, L.

Denham, L. [Teller.]

Sanderson of Bowden, L.

Dilhorne, V.

Seebohm, L.

Eccles of Moulton, B.

Selborne, E.

Eden of Winton, L.

Stanley of Alderley, L.

Elles, B.

Strathclyde, L.

Elliot of Harwood, B.

Strathcona and Mount

Elton, L.

Royal, L.

Faithfull, B.

Strathmore and Kinghorne,

Ferrers, E.

E.

Fraser of Carmyllie, L.

Swinton, E.

Gainford, L.

Thomas of Gwydir, L.

Gardner of Parkes, B.

Thomas of Swynnerton, L.

Gisborough, L.

Thurlow, L.

Greenhill of Harrow, L.

Trefgarne, L.

Greenway, L.

Trumpington, B.

Henley, L.

Tryon, L.

Hesketh, L.

Ullswater, V.

Hives, L.

Vaux of Harrowden, L.

Hooper, B.

Wade of Chorlton, L.

Howe, E.

Walton of Detchant, L.

Hunter of Newington, L.

Westbury, L.

Hylton-Foster, B.

Whitelaw, V.

Moved accordingly, and, on Question, Motion agreed to.

6.10 p.m.
[Amendment No. 150 not moved.]
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 151:
Before Clause 58, insert the following new clause:
"Licensing of Horne Care.
(". After section 14 of the Social Work (Scotland) Act 1968, there shall be inserted—
""Licensing of Home Care.
14A.—(1) Subsections (3) to (6) below shall have effect only if and insofar as a local authority has so resolved in accordance with subsection (2) below.
(2) A local authority may resolve that, as from a day specified in the resolution (being not earlier than three months from the date the resolution was made), the provision of domiciliary services in the area of the authority shall be regulated in accordance with subsections (3) to (6) below.
(3) Subject to subsection (4) below, a licence, to be known as a "domiciliary services licence", shall be required for carrying on business as a provider of domiciliary services.
(4) The following persons shall be exempt from the requirement to obtain a licence under subsection (3) above—

(a) any local authority providing services under Part II of the Social Work (Scotland) Act 1968;

(b) any Health Board; and

(c) such other persons as the Secretary of State may direct.

(5) A local authority may refuse to grant or withdraw a domiciliary services licence if they are satisfied that—

(a) the applicant or any person employed or proposed to be employed in the management of the business, is not a fit person to carry on or to be employed in such a business as is stated in the application; or

(b) the way in which the business is carried on or is proposed to be carried on is such as not to provide an acceptable standard of care to persons using the service.

(6) A local authority shall have such powers to inspect the business of any persons holding, or applying for, a domiciliary services licence, and to require information from any such person, as the Secretary of State may direct."").
The noble Lord said: My Lords, with this amendment it may be convenient for the House also to take Amendment No. 182. The purpose of this amendment is to establish a licensing system to protect the users of home care domiciliary services. One of the White Paper's key objectives is to promote the development of domiciliary day and respite services to enable people to live in their own homes wherever feasible and sensible.
While this is to be commended, it is important that the shift from care in institutions to care in a person's home does not result in a loss of protection for the users of that service. People who want to look after an elderly or disabled person in a care home must establish that they are fit and that they will provide an adequate service. Similarly, people providing child-minding services in their own homes must register with a local authority. Local authorities have a wide range of licensing systems in respect of taxis, secondhand dealers, street traders, charitable collections, boat hirers and even window cleaners. However, those who provide intimate care to vulnerable people in their own homes need not pass any such test. They need not have any suitable training or experience and they may even seek to exploit the people in their care.
Sadly, most organisations involved in this field are aware of cases where a person who has been paid to care for an elderly or mentally disabled person at

453
home has stolen property or has physically abused the vulnerable adults. The Government have opposed a registration system on the ground that it would be an unrealistic burden for local authorities. This amendment would avoid that problem by giving a local authority the power to decide if and when it wants to introduce such a system.
The Government have also argued that local authorities' power to fund and enter into contracts for services will provide a safeguard. However, this is only true to a limited extent. In particular, the White Paper states that local authorities should concentrate on services to those with the greatest needs. Inevitably there will be many people who may not receive the full service they would wish to have from the local authority and will have to make their own arrangements.
We believe that a licensing system would do much to prevent unscrupulous people from preying upon those who may find it difficult to protect themselves. We adept that by no means do these circumstances apply to all cases, but all the evidence from the various bodies involved in this work shows that there is a need for some inspection and protection. We suggest that these amendments would give the Government the necessary flexibility to introduce a licensing system if they so wish. I beg to move.
Lord Mottistone: My Lords, may I ask whether I might speak on Amendment No. 182? Is no one going to move Amendment No. 182 as such?
Lord Carmichael of Kelvingrove: My Lords, I did say that it might be for the convenience of your Lordships to—
Lord Mottistone: My Lords, perhaps I might make a short speech on Amendment No. 182. I have no views on Amendment No. 151 but I have views on Amendment No. 182, which is grouped with it. I was very confused over what was discussed in Committee on the forerunner to Amendment No. 182. It seemed to me, although I did not take part in the debate, that the movers and the Government were not at all clear as to what Clause 49 would actually cover.
It seems clear that if arrangements are made by a local authority, either directly or indirectly, the inspection envisaged in Clause 49 is possible; but your Lordships may have seen the report in the Independent on Sunday, 10th June, reporting that council officers in Islington were called, and I quote:
"to a house infested by several hundred thousand of the blood sucking insects (bed bugs). The residents, who are mental patients, had to go to hospital for blood transfusions.
If these residents were placed in a house by the council, which is very possible, then as I see it Clause 49 would apply without this amendment. If not, I do not think it would. What would happen if they had been placed in a house by the health authority, as sometimes happens? What would the local authority do with the residents if they felt that the house was unsuitable in the long term? Would they offer alternative accommodation? It seems that the problem is not as simple or as straightforward as the answers would indicate when we had them earlier. I
454
think that there is a need for something like Amendment No. 182. I do not know about the wording, but shall be most interested to hear what my noble friend on the Front Bench has to say about it.
6.15 p.m.
Lord Sanderson of Bowden: My Lords, I should like, if I may, to deal with my noble friend's point later and deal, first, with the amendments themselves. The amendments have a certain attractive logic, but I should like your Lordships to pause for a moment to consider that they would give local authorities the power, or, in the case of Amendment No. 182, a duty to regulate. In Scotland and, for the most part, in England these are domiciliary services. There is no doubt about that; we are dealing with services in people's homes. We are clearly not just speaking about the so-called "cowboy firms" which provide domestic services, or about local authority home helps. We are talking about the WRVS, meals-on-wheels and voluntary bodies offering grannie-sitting services. These are very important services and it is vital that the people involved in providing them do not take advantage of those they are helping. As regards registration and inspection, I would suggest that this is a matter of over-kill.
I shall now turn to the points which make me wonder whether we would be wrong to go down this route, and there are two main reasons. First, is regulation needed? Although isolated instances of abuse or wrong-doing have apparently been found, there seems to be no evidence that private domiciliary care services are offering anything other than a good service to people who need it at a price they can afford.
The second problem is that the regulation proposed appears to be too wide-ranging. For example, both amendments could extend licensing to neighbours, friends and relatives who provide help in the home. That would be quite inappropriate and might actually deter such valuable sources of help. Equally, local authorities would have to establish extensive arrangements for registration, with no certainty that there would be a better quality of care.
Amendment No. 151 could also cover services which have nothing to do with community care. "Domiciliary services" are defined in Schedule 9 to this Bill as services which appear to the local authority to be necessary to enable a person to maintain as independent an existence as practicable in his home. That means a social work service which could be provided by the local authority itself or under arrangements made for the purpose with another agency, voluntary or private. The problem comes with any agency providing services not only to community care clients but also to people with no such care needs: for example, a daily help service. Even if the daily help service formed the major part of an agency's business, it would under this amendment still have to be licensed and inspected by the local authority, and the local authority would have powers to intervene in areas unconnected with the protection of vulnerable people. We believe that that would spell unnecessary bureaucracy.

455
Let me explain how our proposals will ensure that there is quality control for domiciliary services. Local authorities making arrangements with individuals or organisations to provide domiciliary services will be able to do so under contract. Contracts of this kind will, wherever possible, include standard specifications and provisions for monitoring. The most effective safeguard against sub-standard privately provided services will be the frequency and intensity of local authority inspections. And the ultimate sanction of cancelling a contract will be a powerful incentive for agencies to deliver a proper standard of service.
Finally, any dissatisfied clients will be free to use the new complaints procedures which we will establish under Clauses 51 and 53. We are anxious to see these procedures well publicised so as to provide a clear avenue for consumer reporting.
The House heard at the Committee stage of the Bill instances where vulnerable people were allegedly exploited in relation to domiciliary care services. We are not complacent about that particular problem. However, we firmly believe that our existing proposals will provide adequate safeguards, without the need for the unnecessarily bureaucratic and over-zealous approach contained in the amendment.
My noble friend Lord Mottistone spoke of some confusion at the last stage of the Bill. I acknowledge that when we debated the issue in Committee on 14th May, we ended in some confusion about the relationship between the regulatory controls which the local authorities exercise and the meaning of Clause 49 as it stands. I shall try to clear up that confusion.
The provisions of Clause 49 apply to people authorised by the Secretary of State. Those are principally members of the Social Services Inspectorate and other staff of the Department of Health. The clause does not apply to the inspection by local authorities of community care services. On the other hand, Amendment No. 182 deals with local authority registration and inspection functions.
As regards what a local authority would do with people in Islington displaced by bedbugs, the inspection and registration already covers residential services so that I am not clear as to how Amendment No. 182 would help to prevent that situation arising. In practice, local authorities will contract with a wide variety of homes. That will give them the ability to find an alternative placement for the people whom the noble Lord mentioned, as I have already said in my explanation to the noble Lord, Lord Carmichael.
Lord Carmichael of Kelvingrove: My Lords, I thank the Minister for that very full explanation. I take issue with him when he tries to suggest that there were only isolated incidents of abuse although I do not have any figures on that. Perhaps the Minister could obtain information on that from his sources in order to discover how serious is that situation. Like the noble Lord, Lord Mottistone, I do not suggest that the wording of the amendment is perfect. However, if the Minister discovers that there are significant numbers of cases of abuse, he will then decide that a need exists. He will then be able to test
456
that need, if it exists, against his standard specification and the very serious business for an individual of the cancelling of contracts.
The Minister has tried to help. I shall read his very full and helpful reply. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 [Charges for accommodation provided by local authorities]:
Lord Ennals Lord Ennals moved Amendment No. 152:
Page 49, line 44, after ("(6)") insert ("and the requirements of subsection (6A)").
The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 153. The amendment seeks to ensure that a claimant who is placed in residential care by a local authority will receive the same entitlement to income support and housing benefit whether he is in private care or in a home run by the local authority.
The amendment is needed to promote freedom of choice. As the Bill stands, the Government have erected barriers which disadvantage the public sector and which cut across their commitment to promote a mixed economy. Such an economy cannot be expected to operate on unequal terms. This amendment would ensure that the providers of residential care compete on equal terms, and that local authorities, in deciding which facilities they can choose, can choose which is the best for the client's need and which is the most cost effective in their operational costs.
During the debates in both Houses on this Bill the Government have said that one of their main criticisms of the current benefit rules is that they create a perverse incentive in promoting residential care. Therefore, it appears to be the Government's intention that the availability of benefits should have a neutral effect on the decisions about what kind of care is to be provided to an individual. I believe that that principle is right.
Ministers have referred to the "level playing field" in describing how the system should operate from April 1991. And yet, at the heart of the Government's proposals on funding, there is a major inconsistency. At paragraph 3.7.6, the White Paper, Caring For People, makes it clear that if the local authority places an individual in a private and voluntary home, the resident will be able to claim both income support and housing benefit towards the costs of the placement. Paragraph 3.7.10 states that, if the individual is placed in one of the authority's own homes, housing benefit will not be paid and the Government have not yet announced the level of income support that will be paid.
Such a structure does not provide a level playing field. It creates a significant financial incentive to use private homes rather than those run by the local authority.
That anomaly has now been debated several times. Ministers have been quite open that it is their intention to rig the market—they have not used that term; that is my term—so that it is weighed against local authority provision.
Responding to the debate in Committee, the noble Lord, Lord Henley, said:
"the amount that a resident who qualifies for income support will be able to pay will be much less at a local authority home compared with an independent home".
He went on to say:
"As we said in the White Paper … that is a deliberate choice. We want to give local authorities every incentive to use independent sector provision".
The decision to pay housing benefit on private and voluntary homes undoubtedly has consequences and raises questions which the Government have not ad dressed in their response to these issues.
In the White Paper and in debates the Government have said that they wish local authorities to use the most cost effective care options. They clearly have no confidence that the private sector will have the lowest and most effective operating costs. The payment of housing benefit towards the cost of private homes will be a hidden subsidy which will make that sector artificially competitive. I do not see how there can be any two ways about that.
Secondly, we must question whether the use of housing benefit to subsidise the private sector in that way is a justifiable or proper use of taxpayers' money.
Thirdly, the noble Lord, Lord Henley, stated in a debate in Committee that the Government want authorities:
"to proceed slowly, considering how they can strike the best balance between residential provision (of all types) in their areas".—[Official Report, 8/5/90; col. 1343.]
The reality is that local authorities are already struggling to meet existing responsibilities. Financial incentives to use private homes will force many authorities to transfer people from their own provision to the subsidised private sector.
There is a fourth problem. The proposal will create anomalies and confusion for residents. After all, we are mostly concerned with patients and residents. A resident who needs change may very well have to move from a home provided by the local authority to one run by another agency or vice versa. The change of home will mean that the residents will have completely different entitlements to benefit; they will have to make new claims and will not be able to understand the basis on which they are liable for a contribution to the local authority. It is madness.
The Government recognise that it is essential that local authority provision is not extinguished, and at the very minimum there needs to be local authority provision for last resort cases. Yet the effect of their proposals on funding will be to jeopardise the ability of many authorities to provide their own homes. That cannot be sensible.
The Government's proposals are unfair in principle because they do not create equity between the different sectors. They will also have undesirable consequences in practice because they will very quickly lead to a massive reduction in the availability of local authority-run homes. If that is the intention of the Government and if that happens then we shall be facing a crisis in community care, especially for elderly people. The proposals are more likely to limit choice and reduce local authority flexibility than to
458
promote the Government's stated objective of a mixed economy of care. I beg to move Amendment No. 152.
6.30 p.m.
Lord Henley: My Lords, perhaps I may point out that I found the Hansard of Committee stage concerning the discussion of the amendment moved by the noble Lord, Lord Carter, rather confusing. I believe some of the columns may have been printed in the wrong order.
Lord Carter: My Lords, with the leave of the House perhaps I may say that I raised this matter with the Hansard office. It is correct in the weekly edition of Hansard, but the two amendments were transposed in the daily Hansard.
A noble Lord: It was not only the arguments then?
Lord Henley: My Lords, no. As always, the Government's arguments were totally unconfused and very sound. Hansard was very confusing and I found myself responding to a question from my noble friend Lord Balfour when answering the noble Lord, Lord Carter.
At Committee stage I explained the reason behind the Government's decision that residents in local authority-managed residential care homes should not be able to claim housing benefit or the full rate of income support. This is so local authorities will have every reason to use independent homes. The thinking behind our decision to restrict the benefit entitlement of people in local authority homes was precisely along the lines suggested by the noble Lord in his amendment. The Government also wish to promote individual choice and to maintain a balance of provision between the public and independent sectors.
Over the past ten years the independent (mainly private) sector has grown to the point where it equals the public sector. We all recognise that the availability of income support has helped many people to exercise choice in favour of independent homes. Whether the present balance is the correct one I am not going to speculate. That will vary from place to place in the light of local conditions. Independent homes are not distributed as evenly as local authority homes and that leads to severe imbalance in a few areas. However in most places we might expect to see an expansion of the private sector. What we do not wish to see, in national terms at any rate, is any reversion to the previous position where local authorities were virtually monopoly providers of residential care in most areas.
The rapid growth over the past few years has occurred in a situation where independent homes have been available without cost to local authorities. The Government felt that to maintain the present position and to encourage a better distribution of private and voluntary facilities across the country it was necessary to build some continuing incentive into the financial arrangements.
That is what we have done. At present it need not cost the local authority anything, as I was explaining, when someone enters a private or voluntary home

459
at public expense. Under the new community care arrangements the local authority will have to meet the difference between what the resident can afford to pay and the home charges, so there will be a cost to local authorities. In this way rather than making the playing fields less level we have in fact evened it up somewhat. In addition, although residents in local authority homes will not be able to claim housing benefit and will have only a limited entitlement to income support, the rules for working out what residents can afford to pay from their own resources will be broadly the same as for calculating their entitlement to income support.
In an increasing number of cases, therefore, where the residents have resources of their own, local authorities will be able to charge more than the minimum charge. This will reduce the cost to the local authority of placing someone in its own homes. When we discussed this in Committee the noble Lord, Lord Carter, produced figures showing that the difference in cost to a local authority between placing someone in a home of its own and placing them in an independent home might be as high as £87 per week. Without accepting that figure I can say that the noble Lord presented possibly the worst case and, for the reasons I have given, in many instances there will be a much smaller shortfall, if any at all.
The noble Lord referred to the Government's intention to force the privatisation of local authority residential care homes. However, as I explained to the Committee, we do not expect local authorities to embark upon rapid and wholesale privatisation. What we are looking for is a gradual, planned process of change. Local authorities need to have regard to the balance between public and independent provision in their areas, as the noble Lord points out, and also to the need to avoid creating a local monopoly of provision. They also need to consider the relationship between residential provision in all sectors and other forms of community care.
I hope I have shown that the amendments proposed by the noble Lord are not really necessary. In fact we are both aiming to do the same thing; to maintain a balance between independent sector and public facilities and for clients to have the widest choice of different types of provision. The measures proposed by the Government will attain the desired result without resorting to the intricacies required by the amendment. I hope, in the light of the explanation I have given, the noble Lord will withdraw his amendments.
Lord Ennals: My Lords, I will withdraw the amendment, not because I have been convinced by the noble Lord's arguments, but because I am convinced that there is not much point in putting it to a Division. In his reply the noble Lord referred to my noble friend Lord Carter—we thought we would provide an alternative with at least the two of us making the same argument—as having presented the worst case in favour of the amendment. I only say that I thought his argument in defence was the worst defence
Lord Henley: My Lords, perhaps the noble Lord will give way. I should not want it to go down on record that I had been rude to the noble Lord. I said that, when the noble Lord, Lord Carter, gave the figure of £87, that that was the worst case figure. Under no circumstances would I say that the noble Lord, Lord Carter, had presented the worst possible case.
Lord Ennals: My Lords, in that case I shall withdraw what I intended to say. I intended to say that the Minister had made the worst defence, but as he did not accuse my noble friend, I shall not accuse him.
The Minister says that the amendment is unnecessary. From our point of view the more he repeats his arguments the more it becomes clear that fairness requires action such as this. The Government's main criticism of the current benefit rules was that they create a perverse incentive. I say in return that the Government's plans create a perverse incentive. That incentive is to the expansion of the private sector and therefore to the limitation of the ability of local authorities to provide the services that they know are necessary for those people for whom they are responsible.
I shall not win the argument except in terms of logic; I shall certainly not win it in terms of a vote, and therefore I beg leave to withdraw the amendment.
Amendment. by leave, withdrawn.
Lord Carter Lord Carter moved Amendment No. 152A:
Page 50, line 22, at end insert:
("( ) After subsection (5) (dealing with treatment of income and capital when assessing ability to pay) there shall be inserted—
"(5C) in assessing a person's ability to pay, in taking into account any earnings or other payments, the local authority may disregard their value in whole or part if it appears to the authority that to take earnings or other payments into account as resources would be contrary to the authority's philosophy of care or detrimental to the objectives of the care programme.".").
The noble Lord said: My Lords, after the thunder and lightning of Amendment No. 149 it seems that all is now sweet reason and light.
Amendment No. 152A was discussed at Committee stage. At that time the noble Lord, Lord Henley, expressed sympathy with the argument and said that the Government would bear it in mind when drafting regulations. Although we welcome the Government's acknowledgement of the problem, we feel that we should push them a little harder. The issue of disregarding income for a disabled person who wishes to work if he or she is in residential care is too important to be left for discussion at a later stage and for regulations.
As the regulations stand, under the appropriate section of the National Assistance Act 1948 a disabled person is severely discouraged from taking up work. We know that many projects in the voluntary sector and local authorities with training or rehabilitative components are encouraging and supporting residents to take paid work. The amendment allows a local authority to continue to disregard the value of earnings when taking into

461
account what would cause disincentive or discouragement to residents who have difficulty in finding and retaining employment.
We can all understand that for many disabled residents work has therapeutic as well as Financial value It can enhance an individual's sense of identity and self-esteem. Extra money can enable people to lead a fuller social life, develop interests and buy new clothes just like their colleagues at work. All those aspects are of particular importance to people who plan to move into the community in the future.
The amendment also seeks to allow local authorities to have some discretion over the treatment of earnings. Without this amendment local authorities will be required to apply the income support regulations under which single claimants, where working, are allowed to keep only the first £5 of their earnings or up to £15 a week if they are elderly or disabled. We believe that it is essential that local authorities should continue to be able to exercise the discretion they now have and we feel that it is important for it to be spelt out on the face of the Bill. I beg to move.
Lord Boyd-Carpenter: My Lords, it is fascinating to see in this amendment that it is solemnly proposed to put into statute the doctrine of "the authority's philosophy of care". To put that into statute would be very unusual and it would certainly present the courts, if the action of a local authority were challenged, with a most remarkable task of interpreting whether "the authority's philosophy of care" would be outraged by doing this or that and, indeed, what that philosophy of care was. It is a nice, rhetorical expression but it would be a serious error to seek to put it into statute. I can hardly believe that it is meant seriously.
Lord Henley: My Lords, I thank my noble friend for making that point. It certainly would be an interesting task for the courts and provide a very interesting income for our colleagues at the Bar and for the rest of the legal profession.
We discussed this point briefly in Committee and I acknowledge the concern behind the noble Lord's amendment. I take first people who have earnings. It is right that people who can work, even though their care needs are so high that they need to live in a home, should be encouraged to do so if they wish, and the chief form of encouragement would be, I agree, to allow them to enjoy some personal benefit from their increased income. In Committee I was able to assure your Lordships that there would be arrangements for earnings to be disregarded. The disregards will be specified in regulations we shall be making under Section 22(5) of the National Assistance Act 1948. It is to Section 22 that the noble Lord's amendment would add a further subsection.
I am afraid the full details of the disregard have still to be decided. They will of course be modelled closely on the income support and housing benefit rules, since our over-riding aim is to bring the two schemes into line. However, I can draw attention to
462
one important difference between the two schemes. The noble Lord will be aware that people working 24 hours or more a week cannot get income support however little they earn. Such a rule would clearly be inappropriate when working out local authority charges for people living in residential care. It does not apply (because of the more flexible charging arrangements) to local authority services for people living in their own homes, such as day and domicilliary care, or to housing benefit or community charge rebate.
As I was saying a few moments ago, people in residential care homes need a great deal of care which cannot be given elsewhere. Nevertheless, work may be to them, as the noble Lord explained, of great therapeutic value if they are able to undertake it, quite apart from any income it brings in. In some instances income may be output-related and, where work is undertaken by a severely disabled person, the output from working 24 hours a week may bring in a substantially lower income than it would if it were carried out by an able-bodied person. However, even where that is not the case it would be foolish to put residents in the position where they could not remain in the home and receive the care they needed if they worked full-time. Therefore, we have decided that there will be no full-time work disqualification in the local authority rules.
The noble Lord's amendment also mentions "other payments". Again, as the notes on the use of the Section 22 regulations annexed to the notes on clauses make clear, there will be a limited range of disregards for various kinds of income. However, I do not think that the situation is similar to that of earnings, which come from the residents' own endeavours, and I do not think there is a case for a general disregard. Nevetheless, where payments are made for specific purposes connected with the care programme there may be a case for allowing some additional disregard and we shall take that possibility away and consider it further in drawing up the details of the regulations.
I hope that, in the light of that explanation and the assurance I have given, the noble Lord will feel able to withdraw his amendment.
Lord Carter: My Lords, I am extremely grateful to the Minister for that reply. As he will know, the purpose of putting down the amendment was to get on record the remarks he has just made.
The noble Lord, Lord Boyd-Carpenter, referred to the amendment. The amendment was entirely serious but I take his point about the drafting. In fact, I though that "philosophy of care" was a good phrase.
I am sure that everyone involved in this matter will be interested to read what the Minister said and will read with great care the draft regulations when they are issued. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 153 not moved.]
6.45 p.m.
Lord Carter Lord Carter moved Amendment No. 154:
("Exemptions from charges for local authority services
In section 17 of the Health and Social Services and Social Security Adjudications Act 1983 (charges for local authority services) there shall be inserted after subsection (3)—

"(3A) In deciding what it is reasonably practicable for a person who avails himself of a service under this section to pay for the service, the authority shall take into account any extra costs attributable to any disability of that person.

(3B) Any attendance allowance received by a person who avails himself of a service to which this section applies shall be disregarded.

(3C) This section shall be disregarded for a disabled person as defined under section 29 of the National Assistance Act 1948 for England and Wales and section 12 of the Social Work (Scotland) Act 1968 for Scotland.").

The noble Lord said: My Lords, this amendment introduces a new clause to deal with a situation which has been brought to our attention by the Spinal Injuries Association, of which the noble Baroness, Lady Masham, is a distinguished president.
The purpose of the amendment is to highlight the growing cost to disabled people of receiving community care services essential to their ability to lead independent lives in the community. Social services departments, because they are under financial pressure, are increasingly asking disabled people to contribute towards the cost of the services provided.
Subsections (3A) and (3B) deal with the situation where disabled people are having to pay for the additional costs of disability, whether or not they are receiving attendance allowance. Subsection (3B) deals with the situation where disabled people are asked to contribute an attendance allowance towards the service provision. Subsection (3C) ensures that people with a disability should not be means-tested for the cost of services provided to them.
The attendance allowance is a benefit which is payable to a person who is disabled to such an extent that he or she requires frequent attendance during the day or night for bodily functions. It is therefore payable only to the most severely disabled people and is intended for personal care needs, not domestic help. It is intended to make care easier for disabled people, who are free to decide how to spend it. It is a compensatory benefit that goes nowhere near meeting the cost of employing care.
Government Circular 53/71, issued shortly after the introduction of attendance allowance and at the time of the introduction of the home help service, states in connection with charges for services in the home:
"In assessing the means of persons qualified to receive attendance allowance under the National Insurance Act 1970 the amount of such an allowance is to be disregarded … The few authorities who still impose a minimum charge are asked to review their practice".
We understand that the disability organisations are increasingly receiving information of cases where people are being charged for services out of the attendance allowance. In a great many cases these are for home help services; that is, for domestic and not personal care. As I said, we are advised that the government guidance is not being adhered to by a number of local authorities.
We should like to know, if the Government accept that the circular should be adhered to by local authorities, whether the charging of attendance allowance is discriminating against those least able to pay. Can we have it confirmed that the attendance allowance is not intended for domestic help? The level at which it is set is far too low to expect it to meet any realistic level of personal care, let alone domestic help as well. If accepted, this amendment would prevent local authorities from demanding such payments from severely disabled people.
That deals with the part of the new clause which is concerned with attendance allowance. I now deal with disability costs and means-testing. We appreciate that the vast majority of disabled people are on very low incomes. Many would probably not fall within most of the brackets for means-testing and they are much more affected by charging under attendance allowance. Those who do not fall within that bracket are, by and large, working, but earning low incomes compared with the rest of the population. The services that they need from local authorities are as a direct consequence of disability needs. It is entirely wrong that any income they earn should be used to pay for their disability costs. Indeed, in some cases the introduction of a means test could act as a disincentive to work.
We ask the Minister whether he agrees that means testing severely disabled people can lead to a disincentive to work. Does he accept that the number of disabled people to whom means testing applies is small and to prevent it from happening would not be a costly measure? The central point is the principle. People with disabilities should not have to pay for the cost of their disabilities with their disposable income. I know that the Minister will be familiar with the long debate about the possibility of a disability cost allowance and whether the disabled should be reimbursed for the cost of a disability irrespective of income.
I admit that the drafting of this amendment is not perfect. Subsection (3A) modifies subsection (3C) to allow for means testing after deducting the extra cost of disability. In other words, it creates a level playing field with the able-bodied. It is a very important amendment and deals with a situation where we believe that the Government must put some clear directions on the face of the Bill; otherwise we shall have a patchwork quilt. The help from local authorities will differ in the way in which they handle this problem. I beg to move.
Baroness Masham of Ilton: My Lords, I support this amendment. I do not see the point in giving an attendance allowance to a severely disabled person if it is to be taxed by a means test. I wish to bring to your Lordships' attention two cases of young men each of whom broke his neck. One is the son of a late Member of your Lordships' House who broke his neck while playing rugby. He is a doctor. That young man may be means-tested in respect of the costs of care, which could take away all the incentive to make an effort to carry on with his job.
Another young man is one of the most brilliant students at Cambridge University. He dived into a river and broke his neck. Britain needs its brightest

465
people. Not many of these severely disabled people are able to work. But those who are must be given an incentive to work, and means testing is a real killer in that regard. It is the meanest of all means tests when the extra costs involved in severe disability are not taken into consideration. The Government should look at this matter and not just leave it to local authorities. I cannot say more than that on the subject.
Lord Henley: My Lords, we were all sweetness and light when discussing the previous amendment. I am afraid that on this occasion I must say that the amendment is not acceptable to the Government.
In explaining why this should be so may I first say something about the way Section 17 of the Health and Social Services and Social Security Adjudications Act 1983 works. The purpose behind Section 17 is to provide a very flexible charging regime for day and domiciliary care provided by or arranged by local authorities. In distinction to residential care where the user's entire needs for support and care are provided and where local authorities are required to operate a fixed charging scheme, in the case of other welfare services, including day and domiciliary care, local authorities are free to charge whatever seems reasonable in the circumstances, subject to the user of the services being able to afford it.
At present we have little information centrally about the way Section 17 is operated but it is clear that most authorities prefer to impose a flat rate charge at a modest level for most services. This flat rate charge is pitched at a level most users are able to pay. It seems that few users are able to afford anything like the full cost of the services and local authorities thus avoid the burden of having to consider user's resources only to show that a high proportion of users could not afford to pay more than a small proportion of the cost of the services. Of course any user who feels unable to pay a flat rate charge is still free to make representations to the authority. There is no reason to think that the provisions of Section 17 as they now stand are in anyway unacceptable to either local authorities or to users and the Government have no intention of amending it.
Thus local authorities will have the same power once our new community care arrangements come into effect as they do now. There will be no power to charge for assessments of community care needs under the provisions of this Bill. As we said in the White Paper Caring for People at paragraph 3.8.1:
"In practice many consumers of personal social services cannot afford the full cost of the service, and ability to pay does not and should not in any way influence decisions on the services to be provided".
To illustrate the limiting level of charges under this section I point out that in 1988–89 local authorities in England supplied home help services at a cost of £245 million but only collected £19·5 million in charges. As noble Lords will see, that is a small percentage of £245 million.
But this system, generally fair and reasonable as it is, overlooks the possibility that a minority of users may be in a position to pay a higher charge for
466
the services they receive. As the White Paper goes on to point out, the Government's general policy on charges is that those able to meet all or part of the economic cost of providing services should be expected to do so. Since under the new community care arrangements local authorities will be providing a wider range of services to a wider range of users, we shall expect them to have greater regard to the users' ability to pay than some do now.
Our present guidance on the use of Section 17 which is limited to a couple of paragraphs in a circular, I admit, could be described as laconic, but we shall be reviewing this as part of our preparations for community care. But we shall not be changing local authorities' essential power to determine the level of the charge. Local authorities need to be able to do this if they are to respond sensitively to a wide range of circumstances. In some cases the services the local authority arranges may be only part of a care package which could also include other formal or informal facilities the amount of which the user pays for separately. Clearly local authorities should have regard to the amount the user pays for these and any other expenses arising from his or her disability in deciding what it is reasonable to expect someone to pay for the services they provide.
On the other hand, when the local authority services include personal care it may be quite appropriate for them to have regard to the user's attendance allowance in deciding what to charge. Attendance allowance is given to those severely disabled people who need frequent attention from another person in connection with their bodily functions and/or continual supervision in order to avoid substantial danger to themselves or others. Their needs may well be met by local authority-provided services. A user can hardly expect to be provided at public expense with both cash and services to meet the same need.
Turning to the details of the new clause, I hope that I have explained that Section 17 as it stands gives local authorities the freedom to take into account any expenses attributable to disability in deciding charges for the services. I have also explained why, to avoid double provision, there should not be an automatic disregard of attendance allowance though the local authority would be right not to take it into account if it was being spent on attendance needs not covered by the services the local authority was providing.
The attendance allowance should not be taken into account for home help services: it is not intended for domestic help. Since the circular was issued home help has changed in many places to home care, which includes personal care. It is towards the personal care element that the user might be asked to contribute from his attendance allowance.
Finally, given the principle that those who can pay should pay, I do not feel that there is any case for automatically exempting disabled people from these charges. I do not accept the noble Lord's point that it will necessarily be a disincentive to work. I have already made it clear that expenses attributable to disability should be taken into account together with the use to which attendance allowance is put. Other

467
services provided under the powers to which Section 17 refers can, particularly in the provision of meals, cover ordinary living expenses; in other words, expenses which a user would have to bear whether disabled or not.
I know that what I have been saying will come as a disappointment to the noble Lord, to the noble Baroness and to all those who have the interests of disabled people very much at heart. But we must be fair to everybody. Any cost of services not met by charges paid by users has to be met by the local authorities. That in turn means both the charge payer and the taxpayer, many of whom may themselves be of limited means. In the light of my explanation, I hope that the noble Lord will feel able to withdraw the amendment.
7 p.m.
Lord Carter: My Lords, I am grateful to the Minister. I shall read carefully what he has said because it is a complicated point. His reply was disappointing. I do not believe that the Government have taken sufficient account of the way in which some local authorities ignore Circular 53/71 on attendance allowance. In this amendment we have touched on a fundamental difference between the policy of the noble Lord's party and the policy of my party in the treatment of disability. It is in our policy that there should be a comprehensive disability income and a disability cost allowance. It is the simple argument that, irrespective of income and whether or not he is rich or poor, a disabled person should have the extra cost met first. He would then be on a level playing field, to use a phrase with which we are all familiar, with everyone else. The noble Lord summed up the issue very well—those who can pay should pay, even if they are disabled. We do not agree with that. But at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch: My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage should begin again at 8 p.m.

British Nationality (Hong Kong) Bill
Brought from the Commons; read a first time, and to be printed.

Road Traffic (Temporary Restrictions) Bill
7.2 p.m.
Lord Brougham and Vaux: My Lords, I beg to move that this Bill be now read a second time.
In moving that this modest measure be read a second time, I should like to thank the Member for Nottingham, South, Mr. Brandon-Bravo, for his help, not to mention the assistance of my noble
468
friend on the Front Bench and of the officials in the Department of Transport. The main provisions of the Bill as it is drafted—I shall return to this point later—are designed to enhance highway authorities' powers in the area of temporary traffic regulation, to relax existing requirements on local authorities, to seek the Secretary of State's consent for extended restrictions, to secure uniformity of approach among all authorities in Great Britain, and to sort out one or two unreasonable anomalies in the existing law. Those are reasonable objectives and are the result of wide consultation over some years with local authorities which have welcomed them.
Clause 1 together with Schedule 1 embodies the substance of the Bill in making new provision for the temporary regulation of traffic by means of orders and notices. At least 15,000 such orders are estimated to be made by local highway authorities alone every year. The schedule contains substitute versions of Sections 14 and 15 of the Road Traffic Regulation Act 1984. The main effect is to introduce a new power to make short-term restrictions for no longer than five days for the purposes of road works by means of a more rapid notice procedure. Experience shows that to be a reasonable objective. The duration of other kinds of notices would be extended from 14 to 21 days.
However, there will always be a requirement to have regard to alternative routes before introducing temporary traffic regulations which will cover both notices and orders. The Bill also provides for enhanced powers to regulate traffic on alternative roads affected. It further allows authorities to make equivalent provision on trunk roads with the Secretary of State's consent. All this will avoid the present cumbersome process which requires the Secretary of State to deal with such matters himself in separate orders.
The new Section 15 removes the present three months' time limit on orders for local highway authorities outside London except with the Secretary of State's consent. This is replaced by a standard limit of 18 months, extendable in the case of essential road works or in other cases where a temporary order is to be followed by an equivalent permanent order. Throughout the history of traffic regulations there has been progressive relaxation—and the time is now ripe to relax them in this area also.
Local highway authorities are responsible bodies and should be allowed to proceed with local road works without the need for reverting yet again to the Secretary of State. The other main change is to allow the Secretary of State to prescribe the necessary procedures by means of regulations. That is already the case in respect of other traffic orders. The change will secure greater consistency and flexibility for futher adjustment. I do not imagine that the procedures will be greatly different. The Bill defines their scope and the 1984 Act provides that they will need to be subject to prior consultation with all the representative bodies, including the local authority associations.
Subsection (5) of Clause 1 rectifies an anomaly. Your Lordships may be surprised to learn that exceeding a temporary speed limit in a coned-off area of a motorway—a contraflow section—does

469
not carry the same penalty as elsewhere on the motorway. The penalty under Section 14 attracts a maximum penalty of Level 3, which is currently only £400, but is not subject to obligatory endorsement or discretionary disqualification. That must be put right as it is monstrous that a driver who indulges in dangerous driving in a coned-off area of a motorway cannot suffer the same punishment as a driver caught doing the same thing on the open road.
Clause 2 is mainly technical. It provides for the necessary repeals or amendments of enactments in the light of the Bill, including further repeals by order after consultation. It provides also for commencement on an appointed day.
At the outset I indicated that I would return to the main provisions of the Bill. Due to the procedures of another place there was not time to resolve concerns about temporary orders affecting traffic, other than motor vehicles, on a footpath, bridleway, cycle track or byway open to all traffic. These concerns were raised in amendments proposed by the Ramblers Association and the British Horse Society. It was therefore agreed that the Bill would be amended at Committee stage in your Lordships' House to meet the concerns of those two organisations. I shall table amendments for the next stage to meet that undertaking. I shall if I may, to save time at Committee stage, briefly talk about them now as they are straightforward, and then, with the leave of the Committee, move them formally en bloc.
The amendments would introduce a shorter period of six months as the maximum permitted duration of temporary orders relating to footpaths, bridleways, cycle tracks or byways open to all traffic, instead of 18 months for all other orders. The six-month period may be extended by the Secretary of State at the request of the order-making authority. This follows the existing procedure in Section 15 of the 1984 Act. If the Secretary of State withholds consent, a period of three months must elapse before another order can be made by the authority. The amendments will help 10 ensure that rights of way for those on foot, on horseback and so on are not interrupted for lengthy periods without the express approval of the Secretary of State.
This is a short and uncontroversial Bill. Taken together, its provisions will be of practical benefit to all authorities involved in temporary traffic regulations. It offers scope for prompt and more effective measures, less encumbered by bureaucracy.
Moved, That the Bill be now read a second time.—(Lord Brougham and Vaux.)
7.10 p.m.
Lord Tordoff: My Lords, the House will be grateful to the noble Lord, Lord Brougham and Vaux, for explaining the Bill with clarity and speed. I am interested that amendments will be made at a later stage in respect of bridleways, footpaths and cycle tracks. I hope that the noble Lord will be able to move his amendments en bloc, but perhaps the House will wish to reserve its right to discuss them at greater length, if necessary. It may well not be necessary when we see the amendments put down by the noble Lord before the Committee stage.
470
The major question that I wish to ask tonight which perhaps the Minister or the noble Lord, Lord Brougham and Vaux, could answer, is this. How far will these provisions be compatible with the Government's intended legislation on the Home report? En passant, the Minister will not be surprised to hear me impress on the Government once again the urgent necessity to bring the results of the Horne report into legislation before your Lordships' House at the earliest possible moment.
I know that the Minister cannot anticipate the Queen's speech but I hope that he will impress upon the people drawing up next year's legislative programme that we need legislation on the Horne report. It is there, ready in the Government's pigeonhole. Please let it flutter out and see the light of day. If it does not come next year, there is fear that it will be delayed until after the next general election. It is far too long since the Horne report produced its response, which was agreed by virtually all sides of your Lordships' House and the other place. I hope that we can have as clear an undertaking as Ministers are normally able to give on these matters.
The provision for the registration of alternative routes is useful in this short Bill. I support it and also the idea of the devolution of the power to the local authority. There is no doubt that local authorities have had powers taken away from them at an alarming rate recently, with Secretaries of State wishing to do everything by order from their office desk. It is a welcome change to see matters being devolved down to the local authorities, where the decision-making powers should be in this case.
The only other subject to which I wish to refer is speed limits on motorway contraflows. I was astonished when the noble Lord told me that the penalty provisions for drivers offending against the temporary speed limits where not the same as those on a normal speed restricted road. Bearing in mind that a high proportion of the serious and fatal accidents on motorways occur near the coned-off sections of roadworks, it is absolutely essential that this provision be brought into force. People must be persuaded, cajoled, threatened and made to stick to the speed limits, particularly in those areas. People do not recognise how dangerous it is to exceed the speed limits in the contraflow parts of motorway construction sectors. With these few remarks, I commend the Bill to your Lordships' House and thank the noble Lord for introducing it tonight.
7.14 p.m.
Lord Carmichael of Kelvingrove: My Lords, after the introduction by the noble Lord, Lord Brougham and Vaux, and the remarks of the noble Lord, Lord Tordoff, there is little that I should like to say. The Bill, is useful and we are all grateful for its introduction by Mr. Brandon-Bravo in the other place. We are, however, concerned that it should not affect the Horne report in any way and should not be used as a stopgap.
I am a little disappointed that the very good suggestion put forward by my honourable friend in another place, Mr. Marshall—who is the chairman of the Select Committee on Transport—was not

471
accepted. It was that contractors or others who cause roadworks should be given a time limit and should be penalised if they go beyond it. Perhaps a period should be given to them to complete a job.
As part of the contract, there should be a charge for inconvenience caused to other road users which should increase as time goes on if the contractor oversteps the scheduled time. My honourable friend in another place believed—and I think that there is something in this—that it is not outwith the philosophy of the Government that if people make a nuisance of themselves they should pay for it. Perhaps this would help. However, in Committee the other place decided that it was not ready to accept such a penalty clause and my honourable friend withdrew the amendment.
One other amendment went to a vote and again my honourable friend and other Members of another place lost it. The general feeling was that this is a useful Bill as long as it does not become too big. The noble Lord, Lord Brougham and Vaux, introduced the Bill with the intimation that there would be an amendment dealing with the time provision which would be of benefit. I accept that and with those reservations I wish the Bill God speed.
7.17 p.m.
Viscount Davidson: My Lords, let me first take this opportunity to express the Government's wholehearted support for the Bill. We welcome it and it will usefully strengthen the powers of highway authorities to regulate traffic for short periods. I am grateful to my noble friend Lord Brougham and Vaux for his detailed explanation of the provisions in the Bill. I may speak for a little longer than noble Lords opposite but I wish to give a general welcome to the Bill and to explain its history.
Local highway authorities have a long history of using orders and notices to restrict or prohibit traffic for temporary periods. They are best placed to determine when a temporary restriction is appropriate. Even so, we do well to remember that the purposes for which a temporary order or notice can be used are strictly limited as the law now stands.
A temporary traffic restriction can only be justified where a highway authority is "satisfied" that traffic should be so restricted or prohibited. The grounds on which it is to be satisfied are because of works or proposed works on or near the road or because of the likelihood of danger to the public or of serious damage to the road.
If the authority is so satisfied, its may temporarily restrict or prohibit the use of the road or part of it. But it cannot at any time use temporary restrictions to prohibit pedestrian access to premises. General duties under the Highways Act 1980 to protect rights of way and minimise obstruction must be observed at all times. Nor can vehicular access be retricted for more than eight hours in any 24-hour period unless the authority is satisfied that the order is necessary on one of several counts: namely, for avoiding or preventing danger to road users; for preventing damage to the road or in the near vicinity; for allowing vehicular traffic to pass on the road, or
472
for preserving amenities of an area by prohibiting or restricting heavy commercial vehicles from using the road or roads in that area.
The Bill makes no fundamental change to any of those safeguards. Rather, as my noble friend has said, it seeks in a number of respects to enhance the powers and procedures when all those tests have been met. We must ensure that, where the powers are appropriate, they provide local highway authorities with an adequate and efficient means of managing the road network while emergency work, repairs to water mains and other remedial measures are in progress. The Government welcome the provisions set out in the Bill because we believe they will do just that.
I shall comment only briefly on a number of respects in which the Bill offers improvements. First, it introduces a new but strictly limited short-term notice for restrictions on account of road works. Parliament has approved this principle in a number of local Acts. There is merit in giving it general application. Secondly, the Bill will allow the notice procedure to provide for appropriate temporary restrictions on alternative roads. For example, parking places or a bus lane could be temporarily suspended on a diversionary route while emergency road works were in progress. As my noble friend has said, highway authorities will, with the Secretary of State's consent, also be able to introduce temporary restrictions on alternative routes where they are trunk roads rather than having to resort to the present duplication of procedure. The Bill will also clarify the powers to erect traffic signs in connection with temporary restrictions imposed by the notice procedure.
The Government particularly welcome and support the provision which will rectify the present anomaly in the law on speeding. Temporary speed limits can be essential to ensure safety in the vicinity of road works, especially where carriageway widths have been reduced. In strengthening the penalty for breach of a temporary speed restriction by making it subject to obligatory endorsement and discretionary disqualification, the Bill will bring it into line with speeding offences generally.
The Government are aware that the relaxation of time limits with regard to orders and notices has led to some concern that restrictions might be maintained for unduly long periods. That is one reason why I have reminded your Lordships of the general constraints surrounding the use of these powers. In general the Bill offers a welcome relaxation in the consent procedure which will help to remove unnecessary central involvement. We are satisfied that the proposed 18-month limit strikes the right balance.
But, as my noble friend has indicated, he will bring forward an amendment to the Bill in Committee to introduce a shorter duration of six months for temporary orders affecting non-motorised traffic on footpaths, bridleways, cycle tracks and byways open to all traffic. There are unlikely to be many such orders. But the Government are content to accept a shorter period for those, with power for the Secretary of State to approve an extension of time where necessary, as he has powers to do under the present arrangements.

473
The Bill does not seek to strengthen the law in respect of road works by utilities and the matter of subsequent re-instatement. I know that some of your Lordships would like to see more far-reaching changes in the management of utility street works. The Horne report made a convincing case for reform. The Government accept that the Public Utilities Street Works Act 1950 (PUSWA), which regulates the relations between highway authorities and utilities, is in need of replacement. The Bill before us is not an appropriate vehicle to make piecemeal changes to street works legislation. I hope the House and in particular the noble Lords, Lord Tordoff and Lord Carmichael, will accept my assurance that the Government regard the reform of PUSWA as a priority and intend to bring forward a substantive Bill at an early opportunity.
In summary, the Bill is a useful tidying up measure. Its main advantages lie in the greater flexibility and improved powers it offers highway authorities to manage traffic for temporary periods in the interests of minimising congestion and disruption to all road users. I commend the Bill to the House and hope it will be received favourably during the passage of its remaining stages.
Lord Brougham and Vaux: My Lords, I thank my noble friend the Minister for his comments which I think have more or less answered all the questions that were raised. I also wish to thank the noble Lords, Lord Tordoff and Lord Carmichael, for their support. I too should like to see the Horne report included in the measure, but the Long Title to the Bill is too restrictive to bring that in. Although I am not party to government business, I am hopeful that report will be discussed in the next Session along with another report which I have in mind. I thank noble Lords for their support. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
Viscount Ullswater: My Lords, I beg to move that the House do now adjourn until 8 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.24 to 8 p.m.]

National Health Service and Community Care Bill
Consideration of amendments on Report resumed.
Lord Carter Lord Carter moved Amendment No. 155:
After Clause 45, insert the following new clause:
("Calculation of Housing Benefit for People in Residential Care Homes and Nursing Homes

(1) Persons who are provided with accommodation under Part III of the National Assistance Act 1948 in premises managed by a person other than a local authority or a landlord who is a registered housing association shall be eligible for housing benefit and the Secretary of State shall prescribe that the amount of housing benefit payable shall be calculated based on the average eligible rent and eligible service charges for residential care homes and nursing homes (excluding homes where the landlord is a registered housing association) in the relevant area.

474

(2) Persons who are provided with accommodation under Part III of that Act in premises where the landlord is a registered housing association shall be eligible for housing benefit on the eligible rent and eligible service charges calculated on the same basis as for any other claimant in private rented accommodation.

(3) "registered housing association" has the meaning set out in the Housing Associations Act 1985,

"eligible rent" and "eligible service charges" have the meanings set out in the Housing Benefits Regulations.").
The noble Lord said: My Lords, with Amendment No. 147 we dealt with the problem of registered housing associations regarding the calculation of the care element and the resulting effect on the finances of the Housing Corporation. This amendment, to which we referred in the debate on Amendment No. 147, deals with the equally important question of the calculation of notional rent. It seeks to exempt housing association residential and nursing home schemes from the notional rent formula so that they are treated in the same way as other forms of accommodation. It would also ensure that for schemes which are not owned or managed by housing associations the notional formula reflects the cost of services.
The Department of Social Security issued a consultation document which proposed a notional rent formula for the payment of housing benefit on residential care and nursing homes. It proposed that local authorities should apply the formula to reflect the rents of two-bedroomed properties in their area. It appears that those proposals may cause particular problems for housing association developments. The amendment seeks to ensure that housing association schemes are treated as any other type of accommodation so that rents can be charged which reflect the type of accommodation which is provided in order that the costs can be recovered.
I do not wish to rehearse the debate that he had at Committee stage, but the noble Lord, Lord Henley, said then that he was aware of the concerns about the issue and that the Government intended to address them in their final decisions on the subject. He also mentioned that consultations were intended with local authority associations. The amendment provides an opportunity for the noble Lord to tell the House how far those consultations have progressed. Perhaps he can also tell the House what is their likely outcome and, most of all, how the Government intend to deal with the problem, which they have admitted exists. I beg to move.
Lord Henley: My Lords, as the noble Lord knows, we debated an identical amendment at Committee stage. The purpose of the amendment is to prescribe the way in which housing benefit should be calculated after April 1991 for people who are provided by their local authority with a place in a private or voluntary residential care or nursing home.
I honestly do not believe that at this stage there is much that I can usefully add to what I said when the matter was last before the House. I hope that the noble Lord will not think me rude or discourteous. I can assure him that we are giving all the issues careful consideration as part of the consultation process with local authorities. At this stage I do not

475
believe that I can go further on the matter. I hope that the noble Lord will accept that and feel able to withdraw his amendment.
Lord Carter: My Lords, we hoped when we put down the amendment that it would stiffen the Government's resolution in this matter and that they might have been able to tell us what the consultation process would produce. It is obvious that we are not going to learn that. It is disappointing, but there is another stage of the Bill. We had hoped that by putting down the amendment we would find out how far the consultation had progressed and whether we would need to put down an amendment at Third Reading. At this stage of the Bill I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 156 and 157 had been withdrawn from the Marshalled List.]
Lord Ennals Lord Ennals moved Amendment No. 157A:
Before Clause 47, insert the following clause:
("Guidance to Local Authorities
—(1) The Secretary of State may issue guidance to local authorities on the application, implementation and purpose of this part of this Act, and on good practice in the exercise of their community care functions.
(2) A local authority shall, in making any decision under this part of this Act, have regard to any guidance issued under this section by the Secretary of State.").
The noble Lord said: My Lords, I move this amendment in the sure knowledge that Ministers will not feel that this is a subject that they have already debated. We have had a great deal of discussion about guidance; so much so that this amendment is the natural result of the fact that every time I have sought to put something on the face of the Bill Ministers in their wisdom have decided not to do so and usually said that it will be done by guidance. That being the case I am anxious to ensure that guidance is taken as seriously as possible. The amendment is intended to give some force and weight to the guidance which the Secretary of State issues. The principle is one that could well apply to health authorities. If the Government surprise us all be accepting it I shall suggest to them that we broaden its scope and include health authorities.
The Secretary of State will be issuing copious guidance to local authorities on community care. The purpose of the amendment is to ensure that the results of the working groups on purchasing and budgeting, care management and assessment, inspection and quality assurance, community care plans, mental illness, training, complaints, as well as working groups on joint finance and other issues, should be taken into account. Guidance issued by the Secretary of State has only the force which legislation gives it. For example, the Secretary of State for the Environment has specific powers under Part III of the Housing Act 1985 to issue a code of guidance to local authorities on homelessness. It is only because Section 71 of the Act gives local authorities a duty to have regard to that guidance that it has any force at all. In the case of judicial review it has been held that a local authority under a duty to have regard to
476
guidance must at least consider how the guidance applies and if it makes a decision departing from the guidance it must have good reason for doing so.
That is not a particularly onerous burden on local authorities but it is a sensible precaution which generally improves the standard of decision-making in local government. It gives some assurance that the Government's oft-repeated assurance to the House that the guidance is a means of generalising good practice is meant seriously. Clearly guidance will generalise nothing if no one needs to read it. If a local authority, in the words of the amendment?
"shall, in making any decision under this part of this Act, have regard to any guidance issued under this section by the Secretary of State",
in order to do that it must at least read it.
The consequence would be that the work which has gone into the preparation of guidance would be wasted if local authorities did not read the guidance. Local authorities would not have any incentive to use best practice from the guidance where that proves to be more expensive than their current operations. The only way in which anyone could be assured that local authorities were using the guidance would be to wait and see whether the Secretary of State was sufficiently committed to his own guidance that he would incur the expense and trouble of using his default powers under Clause 51. The Government have already said that they do not envisage extensive use of the Clause 51 powers. Perhaps the Minister will address himself, or herself, to the clause and how it might be used.
The amendment gives the Secretary of State specific power to give guidance and local authorities a duty to have regard to it. It is a very modest amendment but it is a modest amendment which might ensure that the enormous amount of guidance which will be consequent upon the Bill will have some effect. It is hoped that the Government will at least be able to give some clear indication that they intend to give the guidance some kind of statutory force. I beg to move.
Baroness Hooper: My Lords, I am happy to say to the noble Lord that the requirement that he seeks to add to the Bill is already covered by relevant legislation.
The community care functions under this part of the Bill will become social services functions by virtue of the provisions in paragraph 11 of Schedule 9. Section 7 of the Local Authority Social Services Act 1970 requires local authorities to have regard to general guidance given by the Secretary of State when carrying out their social services functions. It is implicit in that section that the Secretary of State already has power to issue guidance and he does not need to be given specific powers. I might add that by making those functions social services functions we shall also bring them within the scope of the general power of direction, the power to hold inquiries, the complaints procedure and the default action all set out in additions to the Local Authority Social Services Act 1970 in Clause 51 of this Bill. I hope and feel sure that in view of this explanation, the noble Lord will withdraw his amendment.
Lord Ennals: My Lords, I am most grateful to the Minister for that helpful explanation of the fact that what is proposed in the amendment will be effected as she said. I am grateful to her for her careful answer and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 47 [Local authority plans for community care services]:
Lord Carter Lord Carter moved Amendment No. 158:
Page 51, line 35, at end insert:
("(1A) Any plan as defined by subsection (1) above shall include the local authority's proposals for ensuring that community care services are provided in a manner consistent with its powers and duties under the Children Act 1989").
The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 172.
We discussed this amendment in Committee when we said that we wished to bring the matter back before the House. There is an absence of a clear Government rationale for the relationship between the Children Act and this Bill. That is exemplified by the current unwillingness of the Government to establish any mechanism for considering the relationship between the Act and the Bill, either within the Department of Health or in consultation with other statutory and voluntary organisations. In view of the imminent implementation of both pieces of legislation, there appears to be a danger of leaving things too late. We are aware, for example, that local authorities are already individually making plans to implement the two pieces of legislation. We are advised that different authorities appear to be adopting quite different strategies and structures to accommodate the link between the Children Act and this Bill. So far as we know, the Government have as yet offered no guidance on the issue or expressed a view on how they see the relationship developing.
We pointed out at length in Committee the areas of overlap. I do not wish to rehearse the argument again, but the noble Baroness, Lady Blatch, did not give a very satisfactory answer. We pointed out the problems faced when young people with disabilities and other special needs reach the age of 18 and then find that the nature of service provision available to them as adults contrasts dramatically with what they had experienced as children. The Government have a role in creating a framework whereby that transition can be made smooth. It is not reasonable to say that this is a matter solely for local judgment.
It must be made clear that we do not seek the merging of the statutory base for adult and children's services. We emphasise that they share the common objectives, as the Government acknowledged in the White Paper, Caring for People. That point must be formally recognised. There are any number of existing pieces of legislation, including the Bill, which make explicit links with other Acts as a way of trying to ensure consistency of service delivery. In this case, there is a link between the Bill and the Disabled Persons Act to which we shall turn later. All that we are trying to achieve with this amendment is a recognition that similar links should be made with the Children Act.
In Amendment No. 172, we have used the wording of the Children Act to try to ensure that inter-agency co-operation is consistent between the two pieces of legislation. For the Government then to deny the validity of the amendment appears highly inconsistent as they have already incorporated almost exactly the same form of words into the Children Act itself. Since that requirement is precisely what is included in the Children Act, it appears that, if the Government do not accept the amendment, they are challenging their own legislative position. We should appreciate some clarification on that point.
In conclusion, I must question the claim advanced by the Government in Committee and elsewhere that the separation of provision for children has worked well in the past. It is obvious that it has created difficulties at the point where children move into adulthood and take on adult responsibilities, but where services of a particular kind may still need to be made available and have stopped short of the age of 18. There is enough evidence of confusion from past experience to suggest that a more systematic approach is required. That is the purpose of the amendment. It is essential that some effort to integrate services between the Children Act and this Bill should be made. I beg to move.
8.15 p.m.
Baroness Blatch: My Lords, the noble Lord raised his concern at Committee stage, and has done so again today, that there should be consistency between the two pieces of legislation. It might therefore be helpful if I try to set out why we believe that they are indeed compatible.
The Children Act places a general duty on local authorities to safeguard and promote the welfare of children in their area who are in need. So far as it is consistent with that duty, they are required to promote the upbringing of children in need by their families. Local authorities discharge their duty by making provision for a range of services specified in the Act. These include, among other things, home helps, day care and holidays as well as social work advice and support. Where a child in need is identified, the assessment carried out for the purposes of the Children Act will include an assessment of the family circumstances in so far as they affect the needs of the child concerned. The Act specifies that a service can be provided to any member of a child's family so long as it is directed at promoting the child's welfare. Any assessment may be carried out simultaneously with other statutory assessments, such as those required under the Disabled Persons (Services, Consultation and Representation) Act 1986.
Under the Bill now before us, the needs of individuals requiring community care will be assessed by local authorities. Where appropriate, that assessment must be as defined in the Disabled Persons (Services, Consultation and Representation) Act 1986. The assessment procedure will take into account the views and needs of the carer or carers as well as those of the service user. Subsequent provision of care and support will be based on that assessment and, wherever possible, the aim will be

479
to enable individuals to live as independently as possible in the community. Thus, both pieces of legislation allow for the needs of both users and carers, who are usually the family, to be taken into account when providing care and support services. It will of course be important for local authorities to ensure a smooth transition in arranging services for young adults (over 18) previously covered by the Children Act. I know that that matter has concerned my noble friend Lady Faithfull.
As I said in Committee, that transition from a service designed for children to one designed for adults is always a challenge to professional social workers and can be unsettling for the young adult concerned. I can assure the House that that area of concern will be covered by guidance for those aged 18-plus.
The key is surely good assessment of the young adult's changing needs and family relationships combined with good communication and co-operation within the social services department and with any other agencies that may be involved. However, I am not clear what a statutory duty as suggested in the amendment would add in practical terms for the individual client. It seems to me that any problems which might arise would do so from problems of managing the transition which must be addressed locally in social services departments. The legislation is already consistent and any further central help would more properly come in the form of good practice guidance.
Amendment No. 172, like some others that we have discussed, for example in relation to planning, seeks to get into the detail of how local authorities carry out their responsibilities for community care. I am sure that the intention in many of those amendments is to help local authorities by pointing them in the direction of how to fulfil their duties effectively. But, as I and my noble friend Lord Henley have pointed out, the Bill is not the place for good advice. Its purpose is to lay the foundation on which local authorities can build. As noble Lords are aware, we shall supplement the Bill with more detailed guidance on policy which will spell out what is expected of local authorities in relation to their community care functions. That in turn will be followed by advice on good practice, prepared by the Social Services Inspectorate, on how they might approach various aspects of their duties.
This amendment suggests that local authorities may request help from other statutory authorities. Local authorities can already do that—it is an eminently sensible thing for them to do—but I do not think that we need to put it on the face of the Bill. There are many areas of overlap between authorities in carrying out their statutory duties. But I do not believe that this amendment would add anything that is not already covered by the statutes relating to the duties of each authority. I therefore hope that, with that explanation, the noble Lord will feel able to withdraw both the amendments.
Lord Carter: My Lords, with the leave of the House perhaps I may clarify one point. The noble Baroness referred to the guidance. Does she have any idea when the guidance will be available, even in draft?
Baroness Blatch: My Lords, I referred earlier to guidance. I believe that a substantial amount of guidance will be put out in draft form tomorrow. I see an affirmative nod. It will be included in the drafts that go out tomorrow.
Lord Carter: My Lords, it is not Friday the 13th is it? It is extraordinary what an amount of guidance is being put out the day after we discuss these amendments. I am sure that it is perfectly coincidental and happens completely by accident. When I hear Ministers say that they place great reliance on the assessment for community care, local authorities' responsibilities, the smooth transition, liaison and co-ordination, I am tempted to say—although it would be extremely rude—that the Government are passing the buck to local authorities. I shall not say it.
I hear what the Minister says. Obviously we cannot get much further this evening. I am sure that Ministers are aware that there is considerable concern on the part of a number of organisations, and the Children's Society in particular, about what they see as the overlap or muddle that may occur. We shall wait to see the famous guidance tomorrow—which looks like being a very busy day with all the guidance that is being produced. We have to reserve the right to come back on this matter perhaps even at Third Reading. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kilmarnock Lord Kilmarnock moved Amendment No. 158A:
Page 51, line 40, after ("services") insert ("giving consideration to the religious persuasion, racial origin and cultural and linguistic background of inhabitants").
The noble Lord said: My Lords, this is another issue which, I am happy to say, we have not previously debated. Amendment No. 158A attaches to Clause 47, which governs plans for community care. Amendment No. 167B attaches to Clause 48, governing the assessment of needs for community care. Taken together they seek to oblige local authorities to give consideration to:
"the religious persuasion, racial origin and cultural and linguistic background",
of their communities, both in drawing up their plans and in making their assessments.
One may ask: why is this necessary? Are we not already a multi-cultural society and do not these things happen already? The answer, sadly, is, not by any means everywhere or widely enough. The better local authorities are attempting to improve their services generally because of a growing recognition that particular groups in their communities may have particular needs which require a different approach. There is very little point in attempting to give accurate information about the services on offer to a local community if, in the first place, a section of the community does not speak English as its first language and, in the second place, the services are offered in such a way as to make trust in the local authority's sensitivity to cultural, religious and ethnic differences unlikely to be very high.
So a sensitive response to the particular needs of sections of the community is one which recognizes

481
that the kinds of service needed may be the same but the approach to delivering and advertising those services may need to be rather different. Unless authorities are required to consider these issues at the stage of planning their services it is probable that such services on offer will be inaccessible and inappropriate to large numbers of their populations.
More specifically, black people with HIV/AIDS have experienced great difficulty in their contact with statutory services and have had to rely very extensively on such voluntary groups as "Black HIV/AIDS Network" and "Black Liners" to make their case for them and to talk to health advisers, social workers, counsellors and doctors on their behalf in order to secure access to appropriate services for those who come from ethnic minority communities, some without any or with little knowledge of English. Therefore, I suggest that it is vital that the requirement to deal not only sensitively but competently with such members of their populations be built into authorities' community care plans.
Next, there are severe housing problems. Clause 47(2) of the Bill obliges local authorities which are housing authorities to include details of how those authorities propose to meet the housing needs of the persons in their areas who are in need of community care services. That again is particularly applicable to black people with HIV or AIDS. There is considerable evidence of existing tenants being victimised and attacks being made on their person and homes. This leads to a need for prompt rehousing in alternative accommodation which is suitable to their medical condition, secure and sufficiently supportive to ensure their reasonable safety and well-being.
In Hammersmith and Fulham from the beginning of this year to the end of last month there were recorded eight separate serious cases of harassment of people with HIV and AIDS between council and private tenants and four additional cases from other boroughs which sought advice from Hammersmith and Fulham. But other local authorities might simply want to wash their hands of such problem cases requiring both housing and community care if they are to remain in the community rather than in institutions.
In a particular case, someone with advanced HIV disease approached Hammersmith and Fulham housing department. He was an ex-intravenous drug user who had been clear for six to nine months and was receiving additional therapy from the London Lighthouse. He was terrified of returning to the local authority of his origin, where he believed that he would not receive sympathetic treatment and additionally would be under pressure and threats from local pushers to go back to his earlier habit.
It is quite wrong that some authorities should be allowed to opt out of difficult cases which require help, thus loading them increasingly onto more enlightened authorities. Thus, it seems to me to be important to have a statutory obligation to require all local authorities to prepare in their plans and to make allowance in their housing and care policies for people from different ethnic backgrounds experiencing the sort of difficulties that I have described.
As your Lordships will be aware, there is a very large black community in south London. Many of those with HIV and AIDS are treated at St. Thomas's Hospital. That puts tremendous pressures on local authority accommodation in the surrounding areas. There will be a natural tendency for local authorities to pass on those pressures to other authorities who may not want to assume them. These problems should be shared as widely as possible among social services departments, and a statutory requirement in the words that I propose would be of great assistance.
Finally, and quite apart from the humane and sensitive treatment of people in very difficult circumstances, there is also a public health point to be considered. If people in the categories of which I am speaking are shunted around the country without proper accommodation, treatment, domiciliary care or counselling, there is the additional danger of the spread of infectious disease. Alternatively, if they return to hospital they occupy beds, which their condition may not warrant, at a greater cost, thus reducing the availability of those beds for other purposes.
On all those grounds, I suggest that something along the lines of what I propose is needed in the Bill. I beg to move.
Baroness Blatch: My Lords, the Government accept that the characteristics mentioned are some of many which need to be taken into account when planning services and carrying out assessment of individual needs. Indeed, in paragraph 2.9 of Caring For People it is stated that:
"Good community care will take account of the circumstances of minority communities and will be planned in consultation with them".
However, we do not believe that it would be helpful to draw particular attention to them on the face of the Bill and so I cannot support the amendment. I can repeat the assurance given to the noble Lord, Lord Peston, on his withdrawal of a similar amendment on 10th May (Hansard, col. 1588) that the need to take account of these factors will be stressed in our guidance, which can be reinforced by directions.
In the light of that explanation, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Kilmarnock: My Lords, we have read many things in the White Paper which are not in the Bill. I agree that not all of them can be there but the spirit of some of them could perhaps have been reproduced rather more accurately on the face of the Bill.
That takes us back into the world of guidance about which we have heard so much this evening. The noble Baroness has already made a distinction between guidelines and guidance. She implied that guidance is somewhat stronger. She has also spoken of good practice and about advice on good practice being given to local authorities by the Social Services Inspectorate. All that sounds admirable, but it is extremely unclear what precise status and force these various exhortations have. Can the noble Baroness enlighten me as to what force she believes the guidance issued by the Social Services

483
Inspectorate will have? In relation to that and the drafts which have been referred to, can the noble Baroness say to whom the drafts will be circulated and whether we shall see them on the day they are published, which I understand will be tomorrow?
Baroness Blatch: My Lords, with the leave of the House, the answer to the question about the strength of guidance is this. As we have been told a number of times, guidance is stronger than guidelines. My understanding is that if an authority did not take note of guidance, the Secretary of State has the power to make directions. In other words, guidance is expected to be followed. In the absence of it being followed and there being breaches, the Secretary of State can use powers so to direct.
I should have thought that some of the examples given by the noble Lord, which were very distressing, were in breach of the law on racial discrimination. I therefore believe that where that can be proved, the law should be invoked.
Lord Kilmarnock: My Lords, I am grateful to the noble Baroness. She has stated that the matter that I have raised will form part of guidance. She has given me some slight reassurance on the strength that is to be attached to it. I shall read carefully what she has said, and I shall read the draft and decide whether it is necessary to come back to the matter at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.30 p.m.
Lord Seebohm Lord Seebohm moved Amendment No. 159:
Page 51, line 40, at end insert:
("(2) The plan prepared under paragraph (a) of subsection (1) above shall include arrangements made between the local authority and each District Health Authority such as is mentioned in paragraph (a) of subsection (1) above whereby—

(a) the District Health Authority shall give the local authority at least 14 (fourteen) days' notice in writing of the date of formal discharge into the area of the local authority from the Authority's hospitals of—

(i) persons who have received medical treatment for mental disorder (other than those to be immediately discharged pursuant to an order made by a Mental Health Review Tribunal);

(ii) other disabled persons who have been resident in hospital in excess of such period of time as the Secretary of State shall direct;

(iii) other persons who have been resident in hospital for more than three months;

and who in the opinion of the authority may need the provision of community care services after discharge;

(b) if the local authority agrees with the opinion of the District Health Authority given in the notice under paragraph (a) above they shall prior to the discharge of that person carry out an assessment in accordance with section 45 below of his needs for community care and then decide in accordance with that section whether his needs call for the provision by them of any such services; and

(c) if community care services are to be provided, a named individual is appointed to oversee the provision of those services.

And for the purposes of this section "mental disorder" and "disabled person" shall have the same meanings as in the Disabled Persons (Services, Consultation and Representation) Act 1986.").
The noble Lord said: My Lords, I believe that this amendment is probably one of the most important on Part III of the Bill. In moving the amendment I shall rely very much on the skills and knowledge of the noble Lord, Lord Mottistone, about those suffering from mental disorder. His knowledge and skills are much greater than mine.
We both put down amendments at Committee stage which overlapped. This amendment is a combined effort which we believe covers the point that we were both trying to make. The objective is to ensure that local authorities are given 14 days' notice of a discharge of a patient so that an assessment of his needs can be made. It is a requirement that does not at present exist and is not covered in the Bill.
The amendment covers three categories of patients. The first concerns those who have been receiving medical treatment and who suffer from mental disorder. The second refers to other disabled persons who have been in hospital for some time; the length of time is to be fixed by the Secretary of State after consultation with the appropriate authorities, normally the local authority. The third category concerns any person who has been in hospital for more than three months.
I need hardly stress the importance of the first category. My experience concerns those who have been discharged without arrangements for after-care and those who have discharged themselves knowing that they are not fit. We all know what happens then; I need not elaborate. The noble Lord, Lord Mottistone, will no doubt elaborate if he feels it necessary. The second category would frequently merely return to previous management for care. For many, a fresh assessment before care will be necessary. The third category concerns anyone who has been out of circulation and is likely to need help to rehabilitate himself or herself into the responsibilities and problems of ordinary life.
It is worth repeating that there is no obligation at present for health authorities to notify the local authority that they are about to discharge a patient. The amendment is strongly supported by the Association of Directors of Social Services, the Schizophrenia Fellowship, MENCAP and RADAR. I beg to move.
Lord Mottistone: My Lords, I fully endorse the remarks of the noble Lord, Lord Seebohm, about this being probably the most important amendment. For me it is certainly the most important amendment to the Bill. I am most grateful to the noble Lord, Lord Seebohm, for having suggested at Committee stage that we should get together, as we did. We were able to have a meeting. I thank the noble Baroness, Lady Hooper, for meeting us to discuss it. I hope that we were able to convince her and her officials that we were discussing a matter which requires some provision.
I have the support of the Association of Directors of Social Services—who in the last resort prepared the amendment and met with the requirements of the National Schizophrenia Fellowship—and Rescare, in addition to those organisations that the noble Lord, Lord Seebohm, mentioned.

485
Although I shall try to be brief, because it is so important I have much to say. The amendment has three vitally important aims. It seeks, first, to ensure that local authorities are given advance warning of patients who are thought to be ready for discharge from hospital and who in their consultants' opinion will need community care services. Secondly, it enables the local authority to decide (a) which of those patients it can assess before discharge; and (b) what services they need. Thirdly, it makes a named individual responsible for overseeing any community care services that are to be provided.
There is widespread concern about how a persons' needs for community care services may first "appear" to a local authority (Clause 48), so triggering the vital assessment which is the gateway to any provision of services. A particularly critical time is before discharge from hospital. That was the fundamental argument behind Section 7 of the disabled person's measure. That was the nub of the Schizophrenia After-care Bill which I introduced to your Lordships during the last Session and which was supported on all sides of this House.
The Audit Commission—which is more important than many people in this country—in preparing for its new responsibilities for the NHS under the Bill has already said,
"if suitable support is not co-ordinated at this critical point of transition, much expensive constructive work in the hospital may be rapidly undermined".
The amendment covers three groups of patients. I shall speak only about those who have received treatment for mental disorder. The noble Lord, Lord Seebohm, mentioned the others. It is not limited to schizophrenics, as was my Bill. The House wanted its provisions extended to all mentally disordered persons. That was ruled out for technical reasons at that time. I am happy to have met the wishes of the House in the amendment.
Nevertheless, as the noble Lord, Lord Pitt, said, even using a broader definition, its provisions are most likely to benefit schizophrenics and others with serious psychotic illnesses. It is essential to distinguish them from disabled persons and others, where a special need for community care can reasonably be linked with their longer stay in hospital. That was where Section 7 of the disabled persons legislation seemed to us to fall down.
Contrary to what is still generally believed, the overwhelming majority of schizophrenics are not and never have been long-stay hospital patients. But as the Chief Medical Officer pointed out in 1988,
"It remains an unpalatable fact that many mentally ill people require support and treatment on a long term basis".
He also said,
"Over half of those admitted to hospital with a diagnosis of schizophrenia will be left with significant residual symptoms and seriously impaired social functioning".
I should like to quote some figures to back up what I have said. The latest figures refer to 1986. In 1986, in English hospitals there were 25,046 admissions of schizophrenics, of whom 13,307 were discharged in less than a month (over half the total), 20,665 were discharged in less than three months (four fifths of the total) and 22,872 were discharged in less than six months. Section 7 of the Disabled
486
Persons (Services, Consultation and Representation) Act would not apply to any of those people. Of the 25,046 admissions, 90 per cent. were re-admissions. Relapses needing hospital treatment are a characteristic feature of the fluctuating illness. However, almost certainly some would have been preventable if adequate, continuing medical and social care had been available.
There is no doubt that after-care for schizophrenia is crucial. We know that failure to provide it has led to the shameful homelessness of some, to the inappropriate imprisonment of others and to the colossal strain on many family carers. It led to the murder of the social worker Isobel Schwartz, the public inquiry into her death and to various recommendations which surfaced in the White Paper Caring for People. In the chapter about the mentally ill, legal provisions about after-care recommended in the inquiry report have not so far commended themselves to the Government.
This is an important amendment. I hope that after our meeting with the Minister she will, if not accept the amendment exactly as it stands, be able to welcome it and make provisions in the Bill which represent the amendment's main features, particularly those relating to schizophrenics.
Lord Ennals: My Lords, I am grateful to the noble Lords, Lord Seebohm and Lord Mottistone, for their work in preparing the amendment following their discussions within the department. Speaking from these Benches and as president of MIND, I totally support the argument. I agree with both noble Lords that this is an extremely important amendment.
Almost every day we see or hear from all sides the consequences of the absence of a statutory obligation on the district health authorities to inform local authorities of people who are to be discharged. We see the consequences of the Government's failure to implement Section 7 of the Disabled Persons (Services, Consultation and Representation) Act 1986. As was said by the noble Lord, Lord Mottistone, the Act would not cover all such people but it would have covered many of them.
The Government have made clear the fact that they do not intend to implement that section. That is most sad. There are many cases in which social services departments cannot find out about people arriving in their areas and requiring community care services. If local authorities are not given notice of people who are about to be discharged and if those people are not referred to social services departments there is no way in which we can blame the departments. How are they to know? It is often the case that people moving into an area for which a social services department is responsible do not originate from that area. They may have started life somewhere else and then been admitted to hospital. They may have come from any part of the country.
Unless there is a way in which local authorities receive such details and unless health authorities have an obligation to inform them, the present situation will continue. I agree with the noble Lord, Lord Mottistone, that a large number of such people suffer from schizophrenia. Many others suffer from chronic depression or other psychotic conditions.

487
However, for the sake of the argument the nature of their complaint does not matter. For that reason the noble Lords were wise to use words in their amendment which do not specify schizophrenics or a particular type of person.
The amendment is crucially important. The noble Lord, Lord Mottistone, referred to the case of Isobel Schwartz. I could give case after case in which tragedies have occurred—for example, the Sharon Campbell case, which we debated at length in this House. The case for the amendment is overwhelming. The Government must say by what means it will be made obligatory for health authorities to consult with and inform local authorities in order that they may pick up these numerous cases. I hope that we shall receive a satisfactory answer.
8.45 p.m.
Lady Kinloss: My Lords, I support the amendment. In recent years it has been hard to escape from the image of homeless people sleeping rough in our major cities. As noble Lords have heard all too often, many have a history of mental illness. For them community care has meant no more than a doorway in the Earls Court Road or in "cardboard city" around Waterloo.
Today the sixth report of the Social Services Select Committee in another place stated that the Disabled Persons (Services, Consultation and Representation) Act 1986 should be implemented immediately. Unfortunately, the Government have made it clear that Section 7 is not to be implemented. That section provides for assessment before discharge. Therefore, I hope that the noble Baroness will accept the amendment.
Baroness Faithfull: My Lords, I wish to refer to the people who must arrange for patients in hospitals to return to the community. When people suffer from, for example, schizophrenia or a mental disability, not only must one find accommodation for them but one must also deal with the neighbours in order to make them acceptable to the community. If people are physically handicapped one must find separate places for them.
In a recent case it has taken me eight months to find an appropriate placement for someone who had a severe stroke. If we are to rehabilitate or place such people in the community, a great deal of time must be taken in negotiating the accommodation and in dealing with the neighbours and the family to prepare for their reception at home or somewhere in the area.
Lord Allen of Abbeydale: My Lords, the case for the amendment has been clearly made. I wish to say only that MENCAP is heartily in favour of it. We learned with regret the proposal of the Government to postpone indefinitely the implementation of Section 7 of the 1986 Act. I noted with interest the fact that the Select Committee in another place has now recommended that the section should be implemented. However, the proposal contained in the amendment is even better and we hope that the Government will accept it.
Lord Thurlow: My Lords, I wish to express my strong support for the amendment. The arguments for it have been expounded clearly. My interest is in relation to those who are mentally ill and discharged. I wish to refer to the resource prospects in relation to after-care which makes the tying down of the procedure particularly important. In previous debates we have listened with growing apprehension to the scenario for resources. It appears that for the foreseeable future the pressure on local authorities in relation to the poll tax and so forth means that the prospects for after-care are poor. Therefore, it is all the more important that the procedures should be laid down as far as possible within a cast iron framework.
Baroness Elliot of Harwood: My Lords, I wish to support the amendment most strongly. Since its formation I have had a close association with a psychiatric association. For many years I was chairman of a local health authority. I assure the Minister and the Government that the amendment provides a way of saving money; it is an investment. If when patients are discharged into the community there are enough people to help, understand and care for them they will be saved from returning to hospitals, mental institutions and so forth. We know it is one of the tragedies of life that once somebody is very ill or has a mental condition of some kind it is very difficult to help them except over a long period; and if they are to be out of the hospital and out of care they will simply go back into a hospital again. It is vital that they should be cared for by the community. That can only be done if there is the closest association between the health authority, the community councils and local government. I hope that the Government will accept this amendment.
Lord Renton: My Lords, although we have had an excellent debate up to now, I wonder whether I might dare to add a few more facts and arguments to what we are discussing, especially from the point of view of MENCAP. The policy of discharging mentally-handicapped people from long-stay hospitals where there are still countless thousands of them, was initiated by MENCAP in 1980 when I was chairman. It was supported by the Government and by the noble Lord, Lord Ennals, who was then the Opposition spokesman, and indeed it commended itself to everybody. Therefore we welcome that policy. However, a vital part of it is that people should not be discharged unless there are effective alternative arrangements for them to live in the community in suitable accommodation where they will be properly cared for. That really means in small homes, much smaller than long-stay hospitals—homes of 10 or 12 people at the most.
In MENCAP we started, with some government support, a massive programme of creating such small homes and I believe that our branches now have over 200 of them. As a result—and it is only right and fair that one should say this—after being discharged very few mentally handicapped people have nowhere to go. The mentally ill have been much less fortunate. However, whether people are mentally ill or mentally handicapped, we really must take this opportunity to ensure that none of them is ever found to be homeless after discharge from hospital. This

489
amendment will ensure that they never will be homeless.
There is a real practical need for this amendment, and I hope that my noble friend on the Front Bench will not find reasons for rejecting it because, if I may say so with deep respect, they would be purely departmental reasons.
Baroness Seear: My Lords, I intervene in this debate simply to say that this amendment has our very strongest support.
Lard Swinfen: My Lords, noble Lords from all side, of the House have spoken about the position of disabled people on leaving hospital. We have an increasingly elderly population in the country. This amendment will apply to them equally, whether or not they are disabled. The tendency today is for people, when they grow up, to leave home and to work. and live well out of reach of their parents. Often when an elderly person is discharged from hospital the only person at home will be another elderly person—perhaps the spouse—who quite often may be infirm and incapable of looking after someone who is both elderly and ill. It is essential that proper arrangements should be made before discharge from hospital, and in the long run it will be a great deal more economical.
Baroness Masham of Ilton: My Lords, I, too, would like to support this amendment. I am told that subparagraph (ii) incorporates physically disabled people. I have a whole file at home from a surgeon in Newcastle-upon-Tyne, who has had difficulty in getting his patients back home. His acute beds are being blocked and although some of the local authority housing departments are very good, some are only middling and others are totally hopeless. His health authority will not employ an occupational therapist to help and advise the housing authorities, and there is a shortage of hospital social workers. This amendment might help to encourage more hospital social workers and occupational therapists to help to get people home.
The Spinal Injuries Association is concerned about this and says that this is a good amendment. So many awful accidents happen. Sometimes one half of a family is killed and the other person, perhaps after a long time in hospital, has to go back home. It can be very difficult for that person to adapt without the help of husband or wife, and so there is a great need. The local authorities and the health authorities need to be encouraged to work together, otherwise this problem will get worse.
Baroness Hooper: My Lords, because we recognise the need for a seamless service for patients being discharged from hospital and in particular the special needs of those who have had treatment for a mental disorder, we have taken steps to address the situation. First, we have issued guidance on discharge planning for all patients. That was issued in a comprehensive circular last year. It covered the care of patients released after a short spell in hospital as well as of those who have received long-term care.
Secondly, our draft guidance on community care planning, which is to be issued tomorrow, specifically mentions discharge procedures as an
490
area on which health and local authorities should make planning agreements. As part of such agreements, health and local authorities will need to reach agreement on assessing the needs for care services provided by local authorities.
Thirdly, in relation to mentally ill people, we have made it clear that mentally ill people discharged into the community should have a precise plan drawn up for their aftercare. This should help both to prevent inappropriate discharge and also lessen the risk of people losing touch with the caring services at a later stage. We have recently issued for consultation with local authorities, district health authorities and other interested bodies draft guidance on care programmes for mentally ill people.
Perhaps I may mention some good news in all this. I would say to my noble friend Lord Renton, in relation to mentally handicapped people, that I had the pleasure of going to Huddersfield yesterday to open a community care unit for patients discharged from an institution, which until eight years ago had 3,000 mentally handicapped people in it. That institution now contains just over 200 people, and the facilities that are being offered in a community setting are excellent and also a very good example of good practice—an example which is being replicated up and down the country. So I would say that everything is not impossible in the worst of all possible worlds.
Fourthly, Section 117 of the Mental Health Act 1983 already imposes a duty on district health authorities and local authorities to provide, in collaboration with voluntary agencies, aftercare services for certain categories of mentally disordered patients who have ceased to be detained and who leave hospital. The duty on the authority is to provide such aftercare services until they are satisfied that the person concerned is no longer in need of them.
Finally, the arrangements for the mental illness specific grant, which will be paid through regional health authorities, will bring further pressure to bear on local authorities to bring all their services and arrangements up to scratch and encourage co-operative planning locally.
Eyebrows have been raised once or twice in the course of today's discussions about the timing of the issue of guidance on community care planning. That guidance is to be issued tomorrow. I wish to make it clear that the fact that it is to be published the day after rather than the day before these discussions, is entirely fortuitous. That has depended upon practicalities such as printing deadlines. Formal consultation will take place with local authority associations, the Association of Directors of Social Services—
9 p.m.
Lord Ennals: My Lords, is the noble Baroness really saying that it was necessary for the draft guidelines to be published after today's debate, and that that could not have been done before? I find that very difficult to understand.
Hansard is printed overnight, and look at the way in which that is done and the accuracy which is achieved! I should have thought that it would have

491
been possible with some foresight and respect for your Lordships, to have had the guidance, which is not a large volume, printed in time for today's debate. After all, 12 noble Lords on all sides of the House have spoken on this amendment. Should not the guidance have been in our hands in time for today's debate?
Baroness Hooper: My Lords, I hate to worry the noble Lord, but it will be quite a large document. We have not been aware of the date of today's discussions sufficiently early—namely, at the initiation of the consultations which had to take place—to enable us to have the guidance in the lap of the noble Lord at what he considers to be the appropriate time.
Nevertheless, consultation will now be with local authority associations, the Association of Directors of Social Services, the NCVO and medical and nursing professions. In addition, it will be distributed widely to local authorities, health authorities, the voluntary sector, professional and other organisations involved in implementing the proposals, and it will be available to your Lordships.
This amendment also seeks to introduce a requirement for a named individual to oversee care arrangements which the local authority agrees to provide. That is the point made by my noble friend Lord Mottistone. We agree that a named individual or key worker should, as a matter of practice, play an integral part in case management. Our draft guidance on the care programme approach for the mentally ill, which has been recently circulated for consultation before today's discussions, makes that very point in paragraphs 8 to 10, of which noble Lords will already be aware. The annex refers to guidance on aspects of the care programme approach. Our draft guidance on assessment and case management at paragraph 24 also covers that area.
This type of detailed advice about how local health authorities discharge their obligations to care for patients and clients is much better addressed as part of the guidance which fleshes out the framework of care which this Bill attempts to establish.
I am grateful to the noble Lord, Lord Seebohm, and to my noble friend Lord Mottistone, for coming to see me in order to discuss the position and for giving me this further opportunity to explain how we believe the matter is covered.
Perhaps I should add that the effect of the amendment is merely to require local authorities to include such arrangements in their plans. If the intention is to impose a duty on district health authorities to give notice to local authorities in the circumstances mentioned, then the amendment is defective.
I hope that the movers of this amendment will appreciate that we are taking very seriously this situation and will not feel that the only way to achieve the best possible results is by insisting upon this amendment.
Lord Mottistone: My Lords, before my noble friend sits down, perhaps I may ask her two
492
questions. She referred to Section 117 of the Mental Health Act. Is she aware that in 1986 of the 26,077 schizophrenics discharged, only 1,175 were eligible for after-care under Section 117? It does not answer the problem of schizophrenics.
Is she telling us that effectively—and until we see it we cannot believe it—regulations and guidance will replace this part of the Bill? Does she not agree with me that it is very important to have in major legislation underpinning matter from which circulars can be developed rather than circulars, even if they are already in existence? Circulars can be changed at the drop of a hat because they do not even have to come before Parliament. The whole burden of my noble friend's remarks, as I saw it, was: "Oh yes, it is all in circulars". Does she not agree that that is a very inadequate reply? It is terrible that, after seeing my noble friend, this very important matter is being left to circulars, whether or not they are issued. I just do not like this.
Baroness Hooper: My Lords, with the leave of the House, my noble friend has in a sense contradicted himself in his last remarks in that he has pointed to a matter which is enshrined in legislation and then said that that was not effective—that is, Section 117 of the Mental Health Act.
Lord Mottistone: My Lords, it is not good enough.
Baroness Hooper: My Lords, I have pointed to the various forms of guidance which will, as I said earlier, flesh out the framework of care, the general principle of which is established in this Bill. After all, this is a framework Bill and it provides the necessary legal framework. I have explained at an earlier stage of the Bill that guidance carries a great deal of clout. In draft it is subject to considerable consultation so that it is not something which is in any way prepared secretly. If not complied with, it is for the Secretary of State to enforce the guidance by giving the necessary directions. The position therefore is well covered and I hope that your Lordships will recognise that.
Lord Ennals: My Lords, does the guidance deal with the 14 days' notice? Does it deal specifically with the issue in the amendment?
Baroness Hooper: No, my Lords. In relation to a previous amendment I said that a fixed amount of time can very often become a maximum amount of time and create inflexibility in an area where we believe flexibility to be important. As I said in relation to an earlier amendment on a slightly different topic, assessment will take as long as is necessary.
Lord Renton: My Lords, before my noble friend sits down, would she agree that the guidance she offers does not have the force of law and that what we are seeking in the amendment is to have these matters covered by the force of law in the Bill?
Baroness Seear: My Lords, does the guidance deal with this position? Someone comes out of care and it is decided that he or she must go to the family or their nearest relation; the family may feel unable to look after that person. If there were rights established on the face of the Bill regarding prior consultation,

493
the family could claim that the arrangements were not adequate. Does the guidance give the family the right to claim that the arrangements are inadequate and that it cannot accept the person who has come out of care? That is the situation which has to be protected.
Baroness Hooper: My Lords, with the leave of the House perhaps I may say that the guidance is being issued in draft form for the purpose of receiving comments and advice from relevant bodies. I have listed them at some length. They will be able to make any necessary amendments should the draft guidance be found to be wanting.
Lord Mottistone: My Lords, perhaps my noble friend could say that this matter will be taken back and brought in as a government amendment at Third Reading. Would that not be something she could consider, even at this late point?
Lord Seebohm: My Lords, there is no answer to that. I must say that I am not only disappointed at the reply from the Government Benches; I am horrified, and for a number of reasons.
One reason is that the noble Baroness, Lady Hooper, referred to past instructions which are in existence. They have not worked; they are not being obeyed. They might as well be non-existent. In the same way the noble Baroness talks of guidance coming out tomorrow, but that is different to rights being established on the face of the Bill. If they do not appear on the face of the Bill the disappointment of the people for whom we have been speaking will be extreme. MENCAP, RADAR, the National Schizophrenia Fellowship and the Association of Directors of Social Services will be bitterly disappointed. I cannot accept the so-called soothing remarks with regard to guidance.
The noble Baroness spoke about the named carer. That is all very well, but if something is put loud and clear in the White Paper, and then it is said that it is either not necessary or cannot be done, it becomes useless.
I take a very strong view about this. We have had the same situation on other occasions in connection with the White Paper. I must put the amendment to the House for its opinion.
9.12 p.m.
On Question, Whether the said amendment (No. 159) shall be agreed to?
Their Lordships divided: Contents, 37; Not-Contents, 42.

DIVISION NO. 4

CONTENTS

Airedale, L.

Graham of Edmonton, L.

Allen of Abbeydale, L.

Grantchester, L.

Carmichael of Kelvingrove,

Greenhill of Harrow, L.

L.

Hacking, L.

Carter, L.

Hatch of Lusby, L.

Darcy (de Knayth), B.

Hunter of Newington, L.

Dean of Beswick, L. [Teller.]

Kilmarnock, L.

Elliot of Harwood, B.

Kinloss, Ly.

Ennals, L.

Macaulay of Bragar, L.

Ewart-Biggs, B.

McFarlane of Llandaff, B

Faithfull, B.

McNair, L.

Falkender, B.

Masham of Ilton, B.

Falkland, V.

Mishcon, L.

494

Mottistone, L.

Saltoun of Abernethy, Ly

Pitt of Hampstead, L.

Seear, B.

Renton, L.

Seebohm, L. [Teller.]

Robson of Kiddington, B.

Swinfen, L.

Rochester, L.

Thurlow, L.

Russell, E.

Tordoff, L.

NOT-CONTENTS

Arran, E.

Glenarthur, L.

Balfour, E.

Gray of Contin, L.

Belstead, L.

Henley, L.

Blatch, B.

Hives, L.

Blyth, L.

Hooper, B.

Braye, B.

Long, V.

Brougham and Vaux, L.

Lyell, L.

Caithness, E.

McColl of Dulwich, L.

Carnegy of Lour, B.

Mancroft, L.

Carnock, L.

Morris, L.

Cavendish of Furness, L.

Mountevans, L.

Crathorne, L.

Oxfuird, V.

Cumberlege, B.

Rankeillour, L.

Davidson, V. [Teller.]

Reay, L.

Denham, L. [Teller.]

Sanderson of Bowden, L.

Denman, L.

Swinton, E.

Eccles of Moulton, B.

Thomas of Gwydir, L.

Eden of Winton, L.

Trumpington, B.

Elles, B.

Ullswater, V.

Ferrers, E.

Wade of Chorlton, L.

Fraser of Carmyllie, L.

Whitelaw, V.

Resolved in the negative, and amendment disagreed to accordingly.
9.20 p.m.
Lord Seebohm Lord Seebohm moved Amendment No. 159:
Page 51, line 40, at end insert:
("(2A) In the case of those local authorities which are not housing authorities, the plan for the provision of community care services referred to in subsection (1) above shall, after consultation with local housing authorities, include details of how such housing authorities, whose area is within the area of the local authority, propose to meet the housing needs of the persons in their areas who are in need of community care services.").
The noble Lord said: My Lords, noble Lords will recollect that at Committee stage Members agreed to an amendment instructing local authorities which are also housing authorities to include in their community care plans details of the housing needs required to implement the community care plan. The proposals for implementing them are now in Clause 47(2).
That left in the air the question of the necessary powers concerning housing requirements where local authorities are not housing associations and housing authorities. Therefore, the amendment provides for similar details of plans after consultation has taken place with the appropriate housing authorities. I must say at this stage that there has been a most disastrous ruling. It was decided that most planning requirements should be removed from counties down to districts. That has produced a most disastrous effect.
The Redcliffe-Maud Commission, which considered local government reorganisation, made it absolutely clear that, in its view, housing and social services should be on the same tier. That was also clearly set out in the Seebohm Report. In my case, concerning the county of Hampshire, I wonder whether noble Lords realise that the director of social services in the county, instead of just walking across the corridor and thrashing things out with the

495
director of housing, now has to co-ordinate with 15 districts and 15 directors of housing. It is going to be a terrible task.
The amendment I am putting forward this evening is designed to help the directors of social services in their tasks. We all know that housing has a welfare infrastructure. We must do everything we can to put on the face on the Bill the requirements necessary to bring housing and social services together. I believe I need not say more than that. We thrashed this out in connection with the amendment moved at Committee stage. Local authorities which are also housing authorities were instructed to make their plans with the housing authorities. The same must apply to counties, which are no longer housing authorities in many respects. I beg to move.
Lord Carter: My Lords, we supported from these Benches the amendment which the Committee accepted at the previous stage of the Bill. As the noble Lord, Lord Seebohm, has said, it is obvious that all authorities must be treated in the same way. If the Government intend to reject the amendment, I ask them how on earth the system will work if, where housing needs are concerned, all authorities are not treated in the same way as regards community care.
Baroness Hooper: My Lords, I cannot prejudge whether or not the amendment that your Lordships have already voted on, and to which the noble Lord, Lord Seebohm, referred, will find favour in another place. In any event, I cannot accept this amendment. The requirement to consult with housing authorities in respect of community care plans is in the Bill at Clause 47(3)(c). For that reason the noble Lord's amendment is unnecessary. What can sensibly and realistically be done in this part of our Bill, which concerns the powers and duties of local authorities in respect of community care functions, has been done.
We do not think it right to place a duty on housing authorities via provisions which are concerned with the social service functions of local authorities. My colleagues in the Department of the Environment are as concerned as we are to ensure that the housing dimension and, more importantly, the delivery of care services, are on board in community care planning. But we are not able to accept this amendment and I ask your Lordships to agree that Clause 47(3)(c), to which I have referred, coupled with our guidance on developing care plans in consultation with housing interests, is as far as we can and should go.
Lord Seebohm: My Lords, I do not propose to divide the House on the amendment tonight. I hope that the information which I gave on the strange effect between the Department of the Environment and the Department of Health has not been overlooked. I doubt whether the departments ever communicate with each other. That is what is so disturbing. They cannot possibly have realised the situation that they were creating at county level by divorcing housing from social services. That was quite absurd.
496
I very much hope that the noble Baroness will take the amendment away and think about it. I shall withdraw it now but may bring it back at the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ennals Lord Ennals moved Amendment No. 160:
Page 51, line 44, at end insert ("on such matters as appear to either authority to be appropriate, including the matters specified in subsection (3A) below").
The noble Lord said: My Lords, in view of what happened with the amendment before last, when the House was so evenly divided though the Government won, this amendment has become even more important. It concerns the relationship between health authorities and local authorities. The previous amendment touched on one aspect, although a crucially important aspect, of that relationship. It touched on whether notice should be given by health authorities to local authorities on the discharge of patients under certain categories as defined in that amendment. The fact that there was so much feeling in the House at this time of the evening shows the depth of concern. We know the depth of concern that exists among health authorities and local authorities and indeed among voluntary organisations and the public.
The Bill requires local authorities to consult relevant health authorities. It does not say what they will consult about. It lists no subjects on which there should be consultation. I suppose that consultation might be about whether the clocks in the two authorities were working correctly. There is no guidance on the issues on which consultation should take place. It gives the health authorities no rights to be consulted other than on matters identified by the local authority. That is not acceptable. Perhaps I may give a few examples of the kinds of issue which may be dealt with inadequately or not at all if they are not covered by regulations or guidance or allowed for by an amendment which gives to both health authorities and local authorities the right to raise issues for formal consultation.
One concerns the financial arrangements, which are to be subject to local government, and the future of joint financing. If it is to be wound down, how is it to be done with the minimum of disruption? At present £120 million is being spent. The future of dowries is another aspect, with payment by health authorities, often in perpetuity, for the transfer of patients from NHS to local authority facilities. Nursing homes are to be inspected and registered by district health authorities but care homes are to be inspected and registered by local authorities. A common standard needs to be applied. As local authorities will in certain circumstances pay for the care costs in nursing homes, it is vital that there should be close co-operation. Another area where agreement is needed are the circumstances in which the district health authorities will pay for places in nursing homes.
I shall give only one other example, although I could give many more. There is the still unresolved matter of hospital based social workers. I raised this matter in Committee, as did the noble Lord, Lord Winstanley. Since then at least one local

497
authority—Camden—has been sending out distress signals. It cannot charge the DHA for the services and it has no power to charge other local authorities whose residents make extensive use of Camden's hospital based social workers. The role in the future of hospital-based social workers is something about which both sides will be concerned. In some places it will become an increasingly troublesome problem.
This amendment, which stands in my name and in the names of the noble Baronesses, Lady Faithfull and Lady Seear, is grouped with Amendments Nos. 161 and 194. We seek to list in Amendment No. 161 the issues on which there should be consultation by the two authorities. It is essential to put on the face of the Bill a requirement for this form of consultation, the more so since, in my view, the Government so unwisely and insensitively rejected the amendment on which we recently voted. I beg to move.
9.30 p.m.
Baroness Faithfull: My Lords, I rise to support the noble Lord, Lord Ennals, particularly on two points, although I do so on many others. Regarding the place of social workers, they are on the staff of the social services department but work in the hospitals. At the moment a number of authorities are cutting back on the social services because of local government expenditure. They have statutory duties to carry out under the various Children Acts and the Children and Young Persons Act. In order to carry those out, the authorities are withdrawing their social workers from child guidance clinics and hospitals. This is a disastrous state of affairs because the social workers in hospitals are the bridge between the hospital and the community. They are also the bridge between the doctors and the social workers in the community. Therefore it is essential that the position be clarified.
I suggested at the previous stage of the Bill that a rearrangement of the financial provisions should take piece. The health authority should pay half of the social workers' salaries and the social services should pay the other half. I adhere to that because they would then both have a vested interest in the social workers.
It almost goes without saying that the Bill cannot be successful unless there is a good relationship between the district health authority and the social services. One would expect that this went without saying, but sadly it does not. If it were to be on the face of the Bill then people would realise how necessary it was to have a good relationship, and a structured relationship with the two departments.
Lord Carter: My Lords, my noble friend Lord Ennals moved the amendment and I wish to bring to your Lordships' attention a case which illustrates extremely well the need for it. In the town where I live, Devizes, in Wiltshire, there is a geriatric hospital and a district hospital. The intention was to close the geriatric hospital and to rebuild the district hospital with geriatric beds. Because of the slump in the property market, they are not able to sell the site of the geriatric hospital in order to raise the money for the district hospital, so the whole proposal has been deferred.
498
Because of the crisis in funding occurring this year, there is a plan to close the geriatric hospital anyway, and of the 31 patients, nine are to move to the district hospital which is not equipped to receive them. The other 22 are to be decanted into the community. I wish to read a few lines from a letter from the district general manager of the Bath District Health Authority which exactly illustrates the problem with which the amendment is intended to deal. He writes:
"There is an assumption however in our strategy that we will be able to increase the community support. This is the problematical area given the shortage of revenue funds. I am not able to give an absolute assurance that if we do transfer the patients to Devizes Hospital at an earlier date than originally intended that we will at the same time be able to increase the numbers of community nurses".
That is to look after the 22 old people who will be decanted into the community. The letter continues:
"Generally speaking there is a great deal of concern about the proposals in the Government's Caring for People White Paper. It is not at all clear where the resources are going to come from and it is unrealistic to expect Health Authorities to transfer significant money (indeed if any) to Social Services Departments to maintain people in the community. We are also concerned by the confusion regarding responsibility for assessing elderly people's needs. Caring for People seems to lay this clearly at the door of the Social Worker but a look at the general practitioners' new contract suggests that they are in charge of the primary care of their patients. On top of all this consultant geriatricians have been used to taking the lead in organising care for those patients referred to them".
The responsibilities of general practitioners are referred to in the amendment. The letter continues:
"At present in the discussions which I have had with all these parties, very little sense of the best way forward has emerged".
The letter provides a practical example of the kind of problem with which this amendment is intended to deal.
Baroness Blatch: My Lords, it is absolutely true that effective consultation will be the key to the success of the reforms. On that point there is no difference between what this amendment wants to achieve and what the Government are looking for.
We discussed community care planning in considerable detail during the Committee stage of this Bill. We then made the point that the Government view planning as one of the keystones of community care. Because of this the Government accepted an amendment in another place to include a list of appropriate bodies, including district health authorities, for local authorities to consult in drawing up plans. During the Committee stage of the Bill in this House we agreed to consider further an amendment which would add consultation with representatives of service users and their carers to that list. I hope that Amendment No. 160A to this effect will be accepted by this House later today.
Those amendments add to the framework of the consultation process. My concern about the amendment now before us is mainly that it goes into the realm of detail. It specifically sets the agenda. Local authorities are already required by the Bill to consult district health authorities. I cannot imagine that they would consult on matters which they considered inappropriate. I also believe it is inconceivable, given the scenarios as set out by the I noble Lord, Lord Carter, that effective and proper

499
consultation would not be carried out. I believe that under the reforms the necessity to consult will be absolutely essential to the effective delivery of services.
The danger of listing in the Bill matters to be included in consultation is that if topics are not there they will be viewed as less important and omitted from the process.
Lord Ennals: My Lords, Amendment No. 161 states:
"(g) any other matter which either authority considers appropriate".
Nothing is excluded therefore.
Baroness Blatch: My Lords, we have discussed on a number of occasions the difficulty of specifying some details and not others. That leads to the risk that people will interpret the items that are not there as not being for the agenda. Another risk is that undue prominence may be given to those items that are listed in the Bill. People may believe that those items that are not listed in the Bill are somehow or other less important. As I have said, local authorities are already required by the Bill to consult district health authorities.
I believe that these suggestions on the areas to be covered in consultation are all perfectly valid. However, I also believe that as suggestions—the amendment is framed so as to allow authorities discretion in discussing these items, as the noble Lord, Lord Ennals, just mentioned—they are better made in the context of guidance or advice on good practice. We do not believe it is appropriate to place them on the face of the Bill.
The amendment also proposes a new subsection (3C) which seems to intend to impose requirements on district health authorities. Whatever the merits of the suggestion, this cannot really be included in a clause whose major purpose is to place requirements on local authorities. Local authorities are already required to consult housing authorities and housing associations as part of the planning process. It is right that they should as the main body responsible for providing community care services. They are also required to consult with district health authorities. It will be their job to ensure that their care plans reflect agreements they have reached with both health authorities and housing agencies. I do not believe that adding a requirement for district health authorities also to consult on housing will improve the services available to clients. It seems rather an opportunity to add a further layer of bureaucracy which might hinder rather than help the already complex planning process. What is absolutely essential is that the practitioners and the professionals in local authorities and health authorities are the people who should be working in a productive way. They should not constitute talking shops which may stand in the way of and thwart practical progress which is about delivering services to the customer. I hope the noble Lord will therefore feel able to withdraw the amendment.
Lord Ennals: My Lords, T am grateful to the Minister for her reply, but my view has not changed
500
at all. I do not believe that subsection (3C) of Amendment No. 161 is in any way out of place. It is about consultation; this is the National Health Service and Community Care Bill. The amendment includes the opportunity for the district health authority to be able to place items on the agenda:
"to satisfy itself that adequate provision, including housing provision, is available to persons discharged from hospital who are not long-stay patients".
That is a reasonable requirement for a health authority. This is an amendment which, as we see, is moved by members of three parties in this House. It is perfectly reasonable to include items which might be raised by a health authority as well as items that might be raised by a local authority.
However, it is perfectly clear from all that I have heard this evening that the Minister is not likely to give way on anything. I have heard one or two assurances in connection with a previous amendment that the amendment was not necessary, but I have not been impressed on this occasion. However, I shall not press the matter to a Division. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hooper Baroness Hooper moved Amendment No. 160A:
Page 52, line 6, at end insert:
("(cc) such voluntary organisations as appear to the authority to represent the interests of persons who use or are likely to use any community care services within the area of the authority or the interests of private carers who, within that area, provide a substantial amount of care on a regular basis to persons who are living at home and for whom, in the exercise of their social services functions, the local authority have a power or duty to provide a service.").
The noble Baroness said: My Lords, in moving Amendment No. 160A I should also like to speak to Amendments Nos. 160B, 160BA, 160C, 160D and 163A. Noble Lords will recall that during the Committee stage of the Bill I agreed to take away and consider further the wording of an amendment proposed by the noble Baroness, Lady Seear. I am sorry to see that she is not in her usual place.
Lord Carter: My Lords, are Amendments Nos. 164 and 164A also included in this group?
Baroness Hooper: My Lords, yes. I am so sorry. Having considered the matter raised by the noble Baroness, Lady Seear, we have brought forward the amendments, which would incorporate into the Bill the requirement for local authorities to consult organisations representing service users, their families or carers. I explained previously that the Government fully support the principle behind the amendment, which now places the requirement on the face of the Bill.
I hope that Government Amendments Nos. 160A, 160C and 160D fully convey the spirit of the amendment proposed by the noble Lords, Lord Henderson of Brompton and Lord Allen of Abbeydale, in their Amendment No. 160B, which I therefore ask them to withdraw in favour of the government amendments. I commend them to the House and I beg to move.
Lord Allen of Abbeydale: My Lords, as my name is down to Amendment No. 160B and the noble

501
Lord, Lord Henderson, cannot be here, perhaps I may say a word of appreciation to the Government for their proposal, which substantially meets the difficulties that we had in mind.
I have only one point to make. The amendment to which my name is attached mentions organisations of disabled people and organisations of carers, whereas the government amendment is limited to voluntary organisations representing the interests of those people. I have in mind, for example, the local branch of the British Council of Organisations of Disabled People or that of the Carers National Association. Can the noble Baroness say whether she reads the words which she has introduced as being wide enough to cover consultation not only with the voluntary organisations representing the interests of those persons but with the organisations consisting of those persons, who are perhaps in a better position to tender advice than some of the others?
Lord Renton: My Lords, this seems to be essentially a drafting point. The government amendment, welcome though it certainly is, is not so specific in relation to organisations of and for disabled people and the other people who are mentioned in Amendment No. 160B.
I hope that my noble friend will not try to conclude this matter tonight because she may well wish to think about the drafting of the amendment in the light of what has been said by the noble Lord, Lord Allen of Abbeydale. It is essentially a drafting matter. There is no harm in our delaying a little to try to get it right.
9.45 p.m.
Baroness Seear: My Lords, I apologise to the noble Baroness because I was not in my place when she moved the amendment and she referred to the amendment to which my name appears.
Like the noble Lord, Lord Allen of Abbeydale, I think that this is a step in the right direction, but it has perhaps not quite arrived. The point that I should like to query is the phrase:
"such voluntary organisations as appear to the authority".
That phrase may be perfectly harmless, but it might mean that the more vociferous and perhaps more representative organisations would not be the ones that appeared to the authority to best represent the interests. We should have preferred it to be organisations which represent the interests, where they are the substantial body. I am sure that it is not the Government's intention to do that, but it would be possible for a somewhat tame organisation to be accepted as the one to be consulted, whereas the more vociferous and genuinely representative would not be included in the list.
Perhaps the noble Baroness will consider that matter again and follow what the noble Lord, Lord Allen of Abbeydale, said about getting this absolutely right. Perhaps that point could be taken into consideration if the noble Baroness looks at the amendment again, as I hope she will.
Lord Kilmarnock: My Lords, perhaps I may say a few words about Amendment No. 160BA, which has
502
been grouped with Amendment No. 160A. It is very similar to Amendment No. 160B.
The representatives of consumers and carers play an invaluable role in alerting service providers to new health and social care needs and in demonstrating how existing systems of health and social care may need to be adapted to meet those needs. Knowing my interest, the noble Baroness will not be surprised to hear me produce as the most dramatic example of that the appearance of HIV and AIDS and the emergence of extremely articulate and energetic self help and community-based organisations to advocate on behalf of those infected and their carers in the case of that dreadful condition. Without the forceful representation by those organisations of the community care needs of people with HIV and AIDS and their carers, the development of provision for appropriate community care for that group would have been far slower than has been the case. In addition, much firsthand knowledge has been accumulated by those bodies and a great pool of expertise built up on those matters which it would be wrong to disregard in preparing plans and other actions under the Bill.
That takes me to the point made by the noble Baroness, Lady Seear. Although the general thrust of the Government's amendment is welcome, the phrase,
"as appears to the authority",
somewhat diminishes the force of it. There is no absolute requirement in that phrase to consult the kind of bodies to which I have referred. Along with other noble Lords who have spoken, I therefore wonder whether the Government could not have another look at the phraseology before Third Reading. If that could be tidied up, I should be happy with the government amendment.
Lord Mottistone: My Lords, although I was not involved in the lead-up to the amendment and have no amendments tabled in my name, I am sure that Amendment No. 160A is just the sort of thing that the National Schizophrenia Fellowship would like. I applaud my noble friend for having introduced it.
Baroness Carnegy of Lour: My Lords, noble Lords worried by the vagueness of the phrase "appear to the authority" should not worry. If you are on a local authority and you consult organisations representing people, you must decide between all the many organisations and the many people who claim to be the right people to consult. You cannot consult everyone. Like my noble friend Lord Mottistone, I should have thought that that was the right way to put it. We often use the phrase in legislation. It is for the authority to decide. We all know that it will be very difficult to decide who represents the users. We have to trust the authorities to do it. It will be a very difficult operation. Indeed, an organisation which represents carers will not be an easy one to identify. I expect that there will be several but one cannot include everybody. I should have thought that this amendment was right from the local authorities' point of view and that we should go along with it.
Baroness Masham of Ilton: My Lords, I thought that the whole point of the community charge having to be paid by disabled people was that they would then be able to decide whether they were getting the kind of services that they wanted from their local authorities. I understood that that was the argument when we debated this matter in your Lordships' House.
Now there are organisations of disabled people that seem to have been left out. Some of the organisations for the disabled are exceedingly annoyed about it. It has perhaps not been done deliberately. However, perhaps at Third Reading Amendment No. 160B could be incorporated with Amendment No. 160A, which would then make them all happy.
Lord Carter: My Lords, as my name is attached to Amendment No. 160B, perhaps I may say a few words on this point. We are grateful to the Government for making an attempt to meet our concerns and to the Minister for the useful meeting that we had the other day in order to discuss this matter. A problem that the Government should address, which was touched on by the noble Lord, Lord Allen of Abbeydale, is the distinction between organisations of and organisations for the disabled. Let me give a simple example. The National Federation of the Blind is an organisation of the blind. The Royal National Institute for the Blind is an organisation for the blind.
I shall pick up a point made by the noble Baroness, Lady Seear. The vast majority of government funding goes into organisations which are for the disabled rather than of the disabled. There is an important point about the way in which local authorities will look to organisations; whether they will take advice from those vociferous organisations that are under-funded by the Government and which consist of disabled people compared with the other organisations that are substantially funded by Government which are for disabled people. That is an important point which the Government should be prepared to take on board.
There is also another problem raised by the phrase "a substantial amount of care". I was a little surprised that the noble Lord, Lord Mottistone, should approve the amendment. It seems that a lot of carers for schizophrenics would be left out by the words of the amendment:
"a substantial amount of care on a regular basis".
The Government have gone a considerable way to meet us but I think that there is still some redrafting to be done.
Baroness Hooper: My Lords, I am grateful for the more or less general welcome given to these government amendments. But I have to say that I am amazed; if organisations consisting of disabled people are not able to represent the interests of disabled people, then who can do so? In my view they are the people best able to represent disabled interests. Therefore, the government amendment includes groups of disabled people as well as other groups interested in that area.
504
With regard to the point raised by the noble Baroness, Lady Seear, there is certainly nothing sinister about giving local authorities a certain choice in this matter. In fact, in the interests of consistency, perhaps the noble Baroness would care to look at Clause 47(3)(d) on page 52 of the Bill. The wording of this government amendment is consistent with the wording of that paragraph, which relates to housing and community care services. As my noble friend Lady Carnegy pointed out, it is important to give local authorities a certain authority in this matter. I have no doubt that the vociferous groups to which the noble Baroness referred will make their views heard whether or not they are invited so to do.
On Question, amendment agreed to.
[Amendments Nos. 160B to 161 not moved.]
Baroness Hooper Baroness Hooper moved Amendments Nos. 160C and 160D:
Page 52, line 14, leave out ("and").
Page 52, line 23, at end insert ("and
"private carer" means a person who is not employed to provide the care in question by any body in the exercise of its functions under any enactment.").
The noble Baroness said: My Lords, with the leave of the House, I beg to move the amendments en bloc.
On Question, amendments agreed to.
Lord Carter Lord Carter moved Amendment No. 162:
After Clause 47, insert the following new clause:
("Research and grants for community care in rural areas
.—(1) The Secretary of State shall from time to time conduct research into the extent to which the costs of local authority provision of community care services are higher in rural areas than elsewhere.
(2) If the Secretary of State is satisfied that—

(a) the results of the research conducted under subsection (1) above indicate that the costs of providing community care services in rural areas are substantially higher than they are elsewhere; and

(b) such higher costs are not otherwise met by grants paid under Part V of the Local Government Finance Act 1988,

he shall make grants to local authorities under subsection (3) below.
(3) Subject to subsection (2) above, the Secretary of State shall make grants out of money provided by Parliament to defray such additional costs of provision of community care services by local authorities in rural areas as are identified by the research conducted under subsection (1) above.
(4) The Secretary of State may by order made by statutory instrument prescribe a definition of "rural area" for the purposes of this section.").
The noble Lord said: My Lords, an amendment was moved at Committee stage which the Committee did not accept. It was to obtain extra ring-fenced funding for community care requirements in rural areas and to meet the extra costs involved.
This is a more modest amendment. It requires the Secretary of State to research costs involved in rural areas and then to make direct grants to offset any extra costs that are discovered. The Secretary of State would be required to make grants only if the costs were substantial and were not catered for in the general grant system—that is, accounted for in the standard spending assessment for social services.
The argument on the extra cost for providing community care in rural areas is strong. There are the high costs, the lack of local services, unmet needs,

505
poor support for voluntary action, and the poor co-ordination between different local authorities.
I do not wish to take up the time of the House to any extent this evening. A substantial report has been commissioned by the NCVO entitled Counting the Rural Cost: the Case for a Rural Premium. It is a weighty and well researched report. It concludes that costs are higher in rural areas for the following reasons: first, lack of economies of scale; secondly, additional travel costs; thirdly, additional telecommunication costs; fourthly, the high level of unproductive time; fifthly, the extended timescale and slow pace of development work; sixthly, the extra costs of providing mobile and outreach services; and, seventhly, the extra costs of accessing training and other support.
It is clear that there is extra cost in the task of providing community care in rural areas. I shall be interested to know whether the Government propose to comment on the report if they have seen it. For the reasons stated in the report, and for those discussed at Committee stage, we feel that the Government should be required at least to conduct research to satisfy themselves that the standard spending assessment takes sufficient account of those extra costs which are so well borne out in the NCVO report. Perhaps the Government will tell me whether that is the assessment on which they rely. I beg to move.
Baroness Faithfull: My Lords, I support the amendment. The noble Lord, Lord Hylton, who is unable to be here today, asked me to support the amendment on his behalf.
Country areas will obviously have expenses that town areas do not have. If someone has to be transported to a hospital or clinic, long distances are involved. The same applies if one considers the Highlands of Scotland or remote parts of Wales. I was taking to various people in Hereford recently. Hereford covers a large rural area. Those people do not have local clinics. They have long distances to travel to attend an ordinary clinic, let alone a hospital. Such services as meals-on-wheels and home helps are extraordinary difficult to provide.
The amendment does not provide that more money should be given to rural areas but provides that there should be monitoring process to ascertain whether that is so. When I was talking to a doctor who covers a wide rural area, the importance of that was brought home to me. She compared her mileage with that of a colleague in the city. Her mileage was five times greater than that of her colleague. That is only one example. We should monitor and conduct research into the matter so that people in rural areas do not suffer.
I am not a farmer but I wish to speak on behalf of the farmers. I am sure that the noble Lord, Lord Carter, is able to do so better than I. Many are worries that so many people are leaving the land and moving into the cities. One important reason for that is for them to be nearer to the facilities which are not available in rural areas.
10 p.m.
Lord Allen of Abbeydale: My Lords, I was glad to add my name to the amendment and I wish to
506
emphasise a point that has been made. The amendment does not state that the requirements of rural areas necessarily cost substantially more. We believe that they do, but the commitment set out in the amendment will arise only if the Government's reasearch shows that the extra cost is substantial and not covered by the relevant standard spending assesssment. Incidentally, I am under the impression that at present that assessment does not take account of sparsity of population. However, that is a consideration allowed for in certain formulae adopted for Scotland and Wales.
That there are grounds for believing that extra costs are involved is borne out by the report referred to by the noble Lord, Lord Carter. The NCVO has overcome its printing difficulties and has produced the report today. It suggests that the factors that have been mentioned—such as the lack of economies of scale, travel costs and the scarcity of volunteers—make it more expensive to ensure that the elderly and disabled in rural areas are not condemned to an existence more miserable than that of such people in the towns. However, it is fair to say that the main conclusion of the report is the paucity of reliable information and the need for further research. The amendment is aimed at that, with action to follow only if the conditions set out in it are met.
Lady Kinloss: My Lords, I wish to support the amendment. Rural communities are characterised by small numbers of people scattered over a wide area. Costs are high because of the large distances involved in travelling into and out of rural areas and in moving from one location to the next. In North Yorkshire distances are great and there can be difficulties with snow and ice, particularly black ice. That must add to the costs and risks of those travelling; for example, the distance that a district nurse might have to travel. As was pointed out by the noble Baroness, Lady Faithfull, the situation is more difficult for those providing meals-on-wheels and home help.
Today the NCVO published its report, Counting the Rural Cost: The Case for a Rural Premium. The report prepared by a consultant is a review of the existing material. It shows that in general providing services to rural areas is more expensive than providing them elsewhere. In her reply to Amendment No. 159, the noble Baroness, Lady Hooper, said that she had visited a new community centre in Huddersfield. That is good news indeed. But she is aware that Huddersfield is an urban area; and does she not agree that to run such a community centre in a rural area necessarily costs a great deal more? Therefore there is something to be said, in appropriate cases, for the Secretary of State to make grants if the costs are substantial and are not catered for in a general grants system that is accounted for in the standard spending assessment for social services.
Lord Swinfen: My Lords, there is considerable merit in the idea behind this amendment; but, so far as I can see, there is one major difficulty. Is there a legal definition of a rural area? People's ideas of what is a rural area vary considerably. Are we talking

507
about the wide-open spaces of Caithness or about what is rapidly becoming Greater Suburbia, East Kent?
Baroness Carnegy of Lour: My Lords, in talking about this, perhaps we are forgetting the way local government is funded at the moment, and the way the revenue support grant is worked out. All these facts about the extra costs in rural areas are very well known to local government and to central government, and the revenue support grant negotiations are all about that—the needs element in the whole thing.
Ring fencing is going to make this more difficult. Your Lordships will know that I am very worried about ring fencing. It is going to make the problem very much more difficult. But even with ring fencing, the principles which are used in negotiations when the grants are settled take account of all these things. It is not true to say straightforwardly that rural areas are more expensive. In some respects social service provision is more expensive in cities because of deprivation and so on.
I am sure that all the facts your Lordships have elucidated are true, and economy of scale is not there in small homes, just as it is not there in small schools. These things are all well known, and I would have thought that arriving at a figure is not difficult under the present system. The research is really done by the local authority: they know what these things cost. The Government hold discussions with them and I am sure there are people who can look at the figures and check whether they are right. It is unnecessary to say on the face of the Bill that what has always happened and what will continue to happen in a wider sphere has to be included.
Lord Henley: My Lords, perhaps I may first briefly respond to my noble friend Lord Swinfen, who asked for a definition of "rural area". I am afraid I cannot help him. I can refer him to a remark that I made earlier this afternoon to my noble friend Lord Boyd-Carpenter, and say that I suspect it would create yet more work for the lawyers; but I might be wrong about that.
My noble friend Lady Faithfull asked whether we intended to monitor—
Lord Allen of Abbeydale: My Lords, if the noble Lord is about to leave behind the definition of "rural area", is it not true that the Rural Development Commission have a definition of rural area?
Lord Henley: My Lords, I have to admit to the noble Lord that I do not know the answer to that question. If they do, all well and good—and the noble Lord, Lord Carter, assures me that they do. I thought that possibly we might be creating a little more work for my learned friends but perhaps we are not, as it has been defined.
My noble friend Lady Faithfull asked whether we intended to monitor what was going on and to conduct or commission research into what was
508
necessary. I can assure her that we shall monitor and commission research into all aspects of community care. This will clearly involve assessing whether the costs being incurred are greater in one local authority's area rather than another, whether they are rural or urban. We recognise that obviously some aspects of care may cost more in the inner cities because of differing social conditions there. I would agree that there may be additional costs arising in rural areas, with widespread populations, which often receive rather less attention.
I have a local authority background. I served on my own county council, which was in a rural area. I served on the social services committee and my own county council division, representing a mere 4.000 electors, covering some 100 square miles. I know about the problems of rural areas, and I know that their problems are different from those of urban areas. All those factors have to be taken into account. We are alive to that issue. If it proves to be a problem, it will be best solved by looking at our distribution mechanisms through the revenue support grant rather than by small additional payments on the side.
The standard spending assessment for personal social services is being reconsidered in the light of the new responsibilities. It is being discussed with the local authority associations. Having said that, at present I can see no case for highlighting on the face of the Bill one individual aspect of research and, equally, no case for separate equalisation grants. Having said that, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Carter: My Lords, that is the answer which we expected from the Government. In passing, it is a fact that 53 per cent. of the homeless are from outside the metropolitan areas. A substantial number are in rural areas. There is a definition of "rural area" which we discussed during the passage of the Housing Bill when we were discussing the definition of rural housing. Therefore, there is a definition on the statute book.
I was impressed by the touching faith in the standard spending assessment. I do not believe that Wandsworth and Westminster are rural areas but they seem to have done extremely well out of the standard spending assessment without any research. That just goes to show, does it not?
Of course, other departments provide extra money for rural areas; for example, the Department of the Environment in respect of some local authority services; indeed, the Department of Health in respect of community health services, medical practices and pharmacies; the Post Office in respect of subsidy for the network of rural sub-post offices, and so on. Therefore, in a number of departments there is a recognition of the extra costs.
We are disappointed that the Minister cannot accept this amendment. We hope that his faith in the review of the standard spending assessment will be borne out and that the extra costs which we know exist in rural areas will be compensated for. However, at this stage of the Bill, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.10 p.m.
Baroness Faithfull Baroness Faithfull moved Amendment No. 163:
After Clause 47, insert the following new clause:
("Duty to meet needs of chronically ill
In exercising their functions under Part III and Part IV of this Act, local authorities shall take special measures to attend to the needs of any person who is suffering from grave chronic illness and who, by reason of age, illness or disability, is living in conditions which in the opinion of a court give rise to an immediate and serious risk to the life and safety of that person.").
The noble Baroness said: My Lords, I speak to this amendment with the assistance of an outstanding briefing from Age Concern, the Spastics Society and an organisation called SENSE which deals with, helps and gives assistance to deaf blind people.
I believe that I owe an apology to the Minister because I did not make myself clear at the last stage of the Bill when I moved this amendment. It is not an amendment designed to take over from people their lives. I believe that last time I gave the impression that if a very vulnerable person's life was at risk, that life should be taken over.
The Bill deals with people who are vulnerable whose lives are at risk and those who appear to be unable to help themselves. We all know about the case of Beverley Lewis in Gloucestershire. A mentally handicapped girl died. She had been looked after by her mentally handicapped mother, who died. The girl was in the vulnerable position of being unable to look after herself and unable to seek help from anybody else.
This amendment is not intended to take away people' s wishes regarding the future. If someone wishes to have no help, not to co-operate and not to allow anyone into their home, their wishes should not be transgressed. However, my experience and the experience of those three organisations is that many vulnerable people need and want help but do not know how to ask for it or obtain it. Under the law at present it is not possible to offer help to those people even if it is known that they need it.
The amendment is designed to safeguard the very vulnerable who need help; those who, if they could express themselves, want help. It is to enable them to be given help. It is not to remove them from their homes but to give them supportive services and only remove them from their homes if they ultimately agree.
Some people do not want help and wish to die. Who are we to stand in the way if that is the case? However, there are many others whose life expectancy would be extended and their lives enriched if they could be helped. The amendment seeks to help those vulnerable people who are unable to ask for help and to enable social workers to be able to offer that help under the Bill. I beg to move.
10.15 p.m.
Lord McColl of Dulwich: My Lords, in spite of the reassurance of my noble friend Lady Faithfull, it seems to me that we need the amendment only if
510
we wish to force our views upon those vulnerable disabled people.
Over the years I have been immensely impressed with how wrong one can be in an assessment of some disabled people. As often happens, a patient may go for treatment for an acute condition. After the treatment he is seized upon by one or two well-meaning people who decide that he is no longer fit to live on his own. The gentleman I have in mind was very angry about the interference, but the two ladies insisted on making a home visit. He said tO them, "Now we have arrived back home, let me show you how able I am to look after myself. Sit down and I will make you a cup of tea". He then went into the kitchen and put into the teapot three heaped teaspoonsful of rat poison!
I have always been impressed with how able some people are. We must allow them the freedom to choose not to have the benefits of those who are insisting on helping them.
Baroness Hooper: My Lords, this issue was discussed at Committee stage. I agree with my noble friend that the main problem with Section 47 of the National Assistance Act 1948 is that there is no interim action; no halfway house. Section 47 provides only for removal. That may seem to be a limited provision, but there are good reasons why it should be so.
In moving the amendment my noble friend said that it is not her intention to force people to accept help if they do not want it. She clearly therefore does not wish to infringe civil liberties. I understand that, but there are still difficulties.
A person in the situation that she described, who is perhaps not compos mentis—for want of a better expression—and able to judge whether help is needed, is covered by other provisions so that care may be taken of them without the need for the amendment. Furthermore, in the event of somebody being seriously disturbed, the Mental Health Act 1983 deals with compulsory orders in the hospital. If a person is comatose, that person can be removed to a hospital under the powers already contained in Section 47. However, we are agreed that we are trying to deal with a situation that those powers do not cover.
In any event, the wording of the amendment could cause some difficulty. The reference to "special measures", for example, would need definition. It contains none of the protections about medical evidence being necessary and for an appeals procedure that are built into Section 47. This is a difficult area and I understand the concerns, but important issues of personal freedom are at stake and we would run into more difficulties than we had bargained for if we changed the present provision which caters for situations where matters are so bad that something has to be done. Therefore, I hope that my noble friend is persuaded not to press her amendment.
Lord Carter: My Lords, before the noble Baroness sits down, do not the Government accept that it

511
would be better if community services were able to get in earlier instead of having to wait until the people at risk are in such a state that the only option is to put them into institutional care under Section 47? If the services are able to get in earlier they can provide the services in the home and keep the person at home, which is the object of the Bill.
Baroness Hooper: Yes, my Lords, and that can be done by agreement. Care can be taken of a person in the home in the vast majority of cases. However, there are other cases where there is a danger that civil liberties may be infringed. A person may require entry in order to carry out domiciliary provisions or something of that sort, but the recipient of that care may not be agreeable and there could be difficult and damaging scenes. I am sure that no one wants that. As my noble friend said, it is not her intention to force services on people.
The point is that where there is real need there is provision. This amendment would have the effect of forcing people against their will to accept services. Therefore, on balance I think the amendment would do more harm than good.
Baroness Faithfull: My Lords, I thank the Minister for that reply. There is a proportion of people who want help but if they are deaf blind they do not know where to go for it and do not even know that help is available. Such people have a right to expect or to be offered help, which they may or may not accept.
I know that there are some people who would say that they do not want help. Taking up the point made by my noble friend Lord McColl, I am sorry that the social worker forced help on the person concerned. My experience these days is that if anyone does not want help they are only too thankful to say, "Thank goodness, I do not have to pay for a home visit". Therefore, the case cited by my noble friend is most unusual.
From the point of view of compassion and of duty we should be able to offer domiciliary help to anyone who cannot apply for it. If it is turned down, so be it, but it should be possible to offer it. I mention again the girl who died, Beverley Lewis, in Gloucestershire. If she had been offered help she would not have died. There was no need for her to die. She was perfectly fit when her mother was alive but she was mentally handicapped and did not ask for help and did not know how to get it.
Having said that, if my noble friend the Minister feels that the wording is not right then at this stage I shall withdraw my amendment to reconsider the matter and bring it back at the next stage of the Bill.
Amendment, by leave, withdrawn.
Clause 53 [Local authority plans for community care services]:
Lord Sanderson of Bowden Lord Sanderson of Bowden moved Amendment No. 163A:
Page 57, line 30, at end insert:
("(ba) such voluntary organisations as appear to the authority to represent the interests of persons who use or are likely to
512
use any community care services within the area of the authority or the interests of private carers who, within that area, provide a substantial amount of care on a regular basis to persons who are living at home and for whom, in the exercise of their functions under this Act or any of the enactments mentioned in section 2(2) of this Act, the local authority have a power or a duty to provide, or to secure the provision of, a service.").
On Question, amendment agreed to.
[Amendment No. 164 not moved.]
Lord Sanderson of Bowden Lord Sanderson of Bowden moved Amendment No. 164A:
Page 57, line 44, at end insert ("and
"private carer" means a person who is not employed to provide the care in question by any body in the exercise of its functions under any enactment.").
The noble Lord said: My Lords, this amendment has already been spoken to. I beg to move.
On Question, amendment agreed to.
Lord Sanderson of Bowden Lord Sanderson of Bowden moved Amendment No. 164B:
Page 57, leave out from the beginning of line 45 to the end of line 12 on page 58 and insert:
("(1) Subject to the provisions of this section, the Secretary of State may by order require local authorities to establish a procedure whereby a person, or anyone acting on his behalf, may make representations (including complaints) in relation to the authority's discharge of, or failure to discharge, any of their functions under this Act, or any of the enactments referred to in section 2(2) of this Act, in respect of that person.
(1A) For the purposes of subsection (1) of this section, "person" means any person for whom the local authority have a power or a duty to provide, or to secure the provision of, a service, and whose need or possible need for such a service has (by whatever means) come to the attention of the authority.").
The noble Lord said: My Lords, in moving this amendment, I shall speak to Amendments Nos. 164C, 164D and 164E; and Amendments Nos. 183A and 204B which are consequential. Grouped with them is Amendment No. 165 in the name of the noble Lord, Lord Carmichael.
We have sought to provide the power in Clause 53 for the Secretary of State to make an order providing for the establishment of local authority complaints procedures in the social work context because of concern expressed in another place. I think I can say that our proposals were generally welcomed at the Committee stage in this House.
However, the noble Lord, Lord Carmichael, raised a question about the ability of people to complain or make representations during an assessment; that is, before services were actually being provided by the local authority. He was also concerned that there should be no bar to organisations making representations on behalf of people.
In the light of these concerns we looked again at the clause and have concluded that the drafting could indeed be simplified and improved. In doing so, we have made clear that the right to make a complaint extends to all people for whom the local authority may have a power or be under a duty to provide a service under the Act. This right extends not only to the way the authority discharges its functions but also to a right to make representations about the authority's failure to discharge its functions. Functions of course include the duty to carry out

513
assessments for people seen to be in possible need of community care services.
The clause as now drafted thus takes in the full range of persons who are receiving, or could receive, a service from the local authority. The specific mention of carers as persons who can make representations on behalf of the persons they care for is no longer necessary because any complaint can be on behalf of such a person.
I can assure your Lordships that we have looked closely at the question of organisations being able to act on a person's behalf. There is no doubt that the provision as drafted allows for this. It states that representations can be made by a person or anyone "acting on his behalf". "Anyone" includes an organisation. To attempt to include specific reference to organisations might in the event be less than helpful. It could raise difficulties of definition and would add nothing to the sense of the clause.
Though the noble Lord, Lord Carmichael, has not spoken to Amendment No. 165, I assume that he wishes to probe further the point which he raised so helpfully at Committee. I hope that I have been able to assure him that assessment is covered by the complaints procedure, because assessment is a function of the local authority. I am grateful for the constructive interest which he has taken in this subject, and I hope that he will be able to see what the Government have done in response, when the time comes.
Amendment No. 183A, in the name of my noble friend, does the same as Scottish Amendments Nos. 164B to 164E. Its wording is different, reflecting the approach taken in the Local Authority Social Services Act 1970, into which Clause 51 inserts it. But it incorporates all the important points, including the reference to "functions"—thus covering the assessment stage—and to,
"anyone acting on his behalf",
which covers carers and voluntary and other organisations. Amendment No. 205A is a technical amendment, adding a mention of the new complaints procedure to the list of functions of local authority social services committees in England and Wales. I repeat my thanks to the noble Lord, Lord Carmichael. I beg to move.
10.30 p.m.
Lord Carmichael of Kelvingrove: My Lords, I am grateful to the Minister for writing to me and for enclosing a copy of his amendment. At this time of night, when he and I have been waiting here for so long to deal with the amendments relating to Scotland, I feel a wee bit like timpani drums in a symphony orchestra—two notes at the end of the movement. In the meantime, I beg leave to withdraw the amendment.
Baroness Seear: My Lords, the Minister wishes to omit the word "carer". Is that only in connection with complaints made about the person being cared for? I am extremely anxious to make sure that the rights of carers as carers, as distinct from carers as people who are acting on behalf of the cared for person, are adequately safeguarded and to ensure
514
that they can make complaints on their own behalf as it were. The assumption that carers have no rights and interests of their own as distinct from their interest in the person they are caring for is one about which I am much concerned and hope will he adequately covered in the Bill. By removing the word "carer", is the Minister in any way diminishing their ability to make complaints on their own behalf about the way the procedures and the plans are affecting them as well as the people they care for?
Lord Sanderson of Bowden: My Lords, with the leave of the House, we are dealing with the person who is in need of assessment and with the representations that can be made by anyone on their behalf. As for the carers themselves, that concerns a different issue from the amendments before us. I shall see whether this is the correct assessment. Carers, I understand, can have assessment on their own behalf. There is therefore no diminution of their ability to complain. But I think it is only fair to say that I shall look carefully at what the noble Baroness has said. The purport of these amendments is to deal with those who are being assessed and the ability of their representatives to complain.
Baroness Seear: My Lords, with the leave of the House, I thank the Minister for that response. It is an important point although it may be covered elsewhere. I wanted to make sure that it was not going to default in the course of the changes that were proposed.
On Question, amendment agreed to.
Lord Sanderson of Bowden Lord Sanderson of Bowden moved Amendments Nos. 164C to 164E:
Page 58, line 13, leave out ("and any such order") and insert—
("(1B) An order under subsection (1) of this section").
Page 58, line 28, at end insert ("and").
Page 58, line 32, leave out from ("1986;") to end of line 36.
On Question, amendments agreed to
[Amendment No. 165 not moved.]
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 166:
After Clause 53, insert the following new clause:
("Health Board Plans
.—(1) After Section 13 of the National Health Service (Scotland) Act 1978 there shall be inserted the following section—
Health Board Plans for Community Services
13A.—(1) Within such period after the day appointed for the coming into force of this section as the Secretary of State shall direct, and in accordance with the provisions of this section, each Health Board shall prepare and publish a plan for the provision of health care for the users of community care services in their area.
(2) Each Health Board shall from time to time review any plan prepared by them under subsection (1) above, and shall, in the light of any review, prepare and publish—

(a) any modifications to the plan under review; or

(b) if the case requires, a new plan.

(3) In preparing any plan or carrying out any review under subsection (1) or, as the case may be, subsection (2) above the authority shall consult—

(a) any local authority having responsibilities under Part II of the Social Work (Scotland) Act 1968 in their area;

515

(b) insofar as the plan or, as the case may be, the review may affect or be affected by the provision or availability of housing, every district or island council in the area of the board;

(c) such voluntary housing agencies and other bodies as appear to the authority to provide housing or community care services in their area;

(d) such voluntary organisations as are representative of the users of community care services and their families and informal carers in the area of the board; and

(e) such other persons as the Secretary of State may direct.").

The noble Lord said: My Lords, in view of what is happening to the health service in Scotland we consider this to be an important amendment. Its purpose is to make health board plans public and to require consultation in their preparation. The Government's implementation document Community Care Planning: A Review of Past Experience and Future Imperatives, and the Scottish chapter of Caring for People make it clear that local authorities are not being placed in the lead role for community care as a whole. Health authorities will still be responsible for planning all those elements of community care which the NHS currently provides. That is stated on page 43 of the document. It also emphasises that arrangements for ensuring the compatibility of health and local authority plans will be imperative. That is stated on page 27 of the document. The new clause seeks to achieve this point.
The Government's proposed arrangements for health board plans in Scotland fall short of this ideal in two main respects. First, while local authority plans must be public, there is no equivalent requirement for health board community care plans. This defect is peculiar to Scotland, since the English sector of the White Paper states in paragraph 5.13 that English health authority plans will be public and,
"Health authorities will be accountable for ensuring the provision of the services to which these plans commit them".
An explanation of the different treatment in Scotland is obviously called for.
Secondly, health board plans will be drawn up in isolation whereas local authorities will be required to consult widely with other bodies involved in community care. Also, health board plans will not be specific to community care but will be part of the general accountability review. Given the importance of health board plans in the community care framework, it is surely vital that health boards should also consult other bodies when drawing up plans. If this is done, it is far more likely that health board and local authority plans will start from similar assumptions, which will make it easier for the planning agreements between health boards and local authorities proposed by the Government to be reached.
I feel that, if the Government reject the clause on the grounds that it is unnecessary given the Secretary of State's general powers to direct health boards, we need an assurance that such directions will require health boards to make plans public—as, I stress, will happen in England—and also to consult widely. I beg to move.
Lord Sanderson of Bowden: My Lords, we debated a similar amendment at the Committee stage and I thought that I had been able to make it clear then that the amendment was unnecessary. However, I shall play my notes on the timpani at the end of the symphony and see whether I can ring true this time!
In Committee, the noble Lord pointed out that while there was explicit provision in the Bill for community care plans to be made by local authorities, there was no such provision for health boards. In this case it is necessary to look not only at the Bill but also at the White Paper, Caring for People, which makes very clear our intention that there should be separate health and local authority community care plans and full collaboration between all relevant agencies in planning for community care services.
The noble Lord asked whether these would be public documents just as the English ones are. This is not done in isolation: consultations will take place with others concerned—notably of course the local authorities, who have the lead role. Health boards will, I can confirm, be required to draw up their own community care plans in agreement with local authorities and other relevant bodies.
Perhaps I did not explain clearly enough in Committee why we do not need primary legislation to provide for health board community care plans as we have done for local authority plans. The difference in approach is because the Secretary of State stands in a quite different relationship to health boards and to local authorities. Basically, health boards are accountable to the Secretary of State, while local authorities are accountable to their electorates. This means that primary legislation must sometimes be more prescriptive for local authorities than for health boards. The Secretary of State gets health boards to do many tasks simply by non-statutory administrative means. So our proposals for obtaining health board community care plans are entirely in line with existing procedures. A circular will be sent to health boards in September or October commissioning them to prepare community care plans, probably (like local authorities) annually. They will cover the same kind of ground as the local authority plans and the two sets of plans will be compatible.
In Committee the noble Lord said he was concerned about what would happen if there were a difference of opinion. I accept that this is a possibility, but it is one that could arise even if health boards were required by law to produce community care plans. I would expect that if such a disagreement arose, the authorities would probably be able to sort it out between themselves. However, if the problem persisted, we have redress. My right honourable friend the Secretary of State has the power to intervene. He can use his existing powers under Section 2 of the 1978 Act or, depending on the circumstances, he can issue directions to the local authority under the powers provided under Clause 52 of this Bill or to both the local authority and the health board.
In conclusion, I assure the noble Lord that health boards as well as local authorities will draw up

517
community care plans and boards will receive the necessary guidance on this in due course. But that guidance does not need to be backed up by primary legislation. I hope the explanation is now clear to the noble Lord.
Lord Carmichael of Kelvingrove: My Lords, while I accept the good will and good intentions of the Minister, he must be aware that in Scotland there is a fair amount of unease about the apparent secrecy of health boards' plans concerning almost everything that they undertake. As the Minister will be aware, that unease is particularly great in parts of the west of Scotland.
I do not for a minute doubt the Minister's sincerity when he says there will be full consultation, but I still want to know at what point the plans of the respective bodies will be published separately before they are issued in one document. As I understand it, the local authority plans will be made known. I have to accept the Minister's point of view, but there is still a great deal of unease about this matter.
Lord Sanderson of Bowden: My Lords, with the leave of the House, I intervene and I apologise for so doing. I wish to make a further point as regards a comparison with the English plans. We are not talking about glossy documents being on sale on every newsstand. However, they will be publicly available, like most of the papers discussed at health board meetings.
Lord Carmichael of Kelvingrove: My Lords, that is an advantage as we are always a little worried when this Government produce glossy documents. Having said that and having taken on board what the Minister has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker (Lord Grantchester): My Lords, I now call Amendment No. 167. If Amendment No. 167 is agreed to, I cannot call Amendment No. 167A on grounds of pre-emption.
Clause 48 [Assessment of needs for community care services]:
Lord Allen of Abbeydale Lord Allen of Abbeydale moved Amendment No. 167:
Page 52, leave out lines 24 to 26 and insert:
("(1) On request by any person, a local authority shall within 72 hours of receiving that request make a determination as to—

(a) whether that person is a person for whom they may provide or arrange for the provision of any community care services, and

(b) whether that person's request for a determination and assessment is unreasonable, vexatious or obviously without foundation in any need for community care services,

and shall notify that person in writing of their determination.
(2) Where a determination under subsection (1) above has found that—

(a) the person is a person for whom they may provide or arrange for the provision of any community care services, and

518

(b) the person's request for a determination and assessment is neither unreasonable, vexatious nor obviously without foundation in any need for community care services,

or where it appears to a local authority to be appropriate to do so, the authority within a reasonable period of time—").
The noble Lord said: My Lords, I am sure that the Government have been hoping that before we concluded our business for the day they would come across some amendment which they could accept, at any rate in principle, as a magnanimous gesture. Here is a suitable candidate. The amendment seeks to clarify the provisions of the Bill as regards procedure for assessments and the rights in this context of users of community services. The system of assessment is a vital part of the community care proposals and has been described as the gateway to community care. Unfortunately the Bill is lacking in clarity as to the precise route to this gateway. Clause 48 states that local authorities have a duty to carry out an assessment where it appears to them that an individual is someone for whom they may provide community care services and that the individual may be in need of such services.
However, there is no provision as regards how a local authority becomes aware of a person's possible needs. Neither is there provision about carrying out the kind of pre-assessment to which the government spokesman referred at an earlier stage. There is no provision entitling the individual or his representative to take the initiative, unlike the position of the disabled under the 1986 Act.
I entirely accept that there should be no unrestricted right to assessment on request, but it seems to me that the Government's fears could be met and the obscurities removed by a provision on the lines of the amendment. It envisages a two-stage procedure. In the first stage the local authority would be under a duty to come to a quick decision—it is suggested within three days, but I am not wedded to that particular time limit—on whether the individual might be eligible and on whether the application is unreasonable or vexatious. Only if both tests are met does the local authority proceed to the second stage of carrying out a full assessment.
It seems to me that such a provision would meet the fears that the Government expressed at Committee stage, if I understood them correctly, and, following the precedent of the 1986 Act, would make clearer the rights of the individual—a matter on which the Bill in its present form is regrettably silent. I beg to move.
10.45 p.m.
Lord Mottistone: My Lords, I support the amendment, as I supported its predecessor, Amendment No. 113BE, in Committee. It seems rather strange that, without the amendment, the Bill represents a step backwards because the services can only be provided if it appears to the local authority that they are necessary. At the moment one can ask a local authority for help but there is nothing to make it comply. The amendment would improve matters because the local authority would have an obligation to act. Obviously local authorities do not want that, but the Government should not be upset

519
by that. I hope that the Government would not always give in to what the local authority people tell them. I hope very much that, even if my noble friend cannot accept the amendment at this moment, she will take it away and see whether she can improve it rather than rejecting it out of hand, which would be a great pity.
Lord Carter: My Lords, I have added my name to the amendment. The noble Lords who have already spoken have explained the argument extremely well, but it is worth emphasising that the amendment does not propose an unrestricted right to assessment on request. It seems to express the Government's own concern, but within the context of what we feel is a clearer procedure. It ensures that users will receive a fast response to their requests. It also makes entirely clear the nature of the preliminary inquiries which would lead to assessment, and it makes clear to the applicants the grounds on which they may be refused an assessment. In other contexts the Government have always seen the consumer as king. The amendment reflects that approach.
Lord Swinfen: My Lords, I too should like to support the amendment. However, as I see it, it has one flaw. Not all disabled persons are able to make their own request. Therefore, somehow we should include the disabled person's representative. It may be better to do that by agreeing to Amendment No. 170, which we shall come to in due course.
Baroness Blatch: My Lords, when debating Clause 48 at Committee we discussed the need for assessment for community care services to be available on request to any person. I explained on that occasion that that was virtually the effect of the clause as drafted since it requires any local authority to carry out an assessment of any person for whom it appears the authority might arrange community care services. The provision was intended to be as wide-ranging as possible and not to deny anybody making a request for an assessment the opportunity to have one. The form of the assessment is of course left to the local authority to decide. That being so, I do not see the point of this amendment, which does no more than require the local authority to observe a time limit on deciding whether an assessment is needed.
Under Clause 48 a local authority is required to decide if a person is a person,
"for whom they may provide or arrange the provision of services",
and this would entail taking action not unlike that suggested in the noble Lord's amendment. Our guidance on assessment will advise local authorities on the advisability of setting up some sort of initial scrutiny. Such a procedure would be quite proper since the clause leaves the form of the assessment to be decided by the local authority. An initial sift would have two purposes: first, to identify the people for whom no more detailed assessment is required, which would include those making unreasonable or vexatious requests; and, secondly, to decide the most appropriate form of assessment for those cases clearly needing further investigation.
520
As regards decisions in writing, our guidance will advise authorities that decisions should be given in the way most suitable in the particular circumstances and always in writing where the person concerned requests that. The important thing is to ensure that the person concerned understands the decision reached. Whether or not a decision is given in writing, the person concerned would still have access to the representations and complaints procedure that authorities will be required to set up in accordance with the new Section 7B of the Local Authority Social Services Act 1970 as set out in Clause 51 of the Bill. Finally, the amendment would require the local authority to carry out an assessment within a reasonable period of time. Again, the need for assessments to be carried out without undue delay is stressed in our guidance.
There is no difference between us on this aspect. The intention is that those who require assessments receive them as speedily as possible. I hope that I have shown the noble Lord that his amendment is not required and that the spirit of his amendment is met.
Lord Allen of Abbeydale: My Lords, I am sorry to disappoint the noble Baroness when I say that she has not demonstrated to me at all that the amendment is not required. Listening to her on this occasion and to Government explanations on previous occasions, I sometimes wonder why we are legislating at all, and why we cannot have it all in guidance.
There is not much point in dividing the House at this time of night. I must content myself with saying that I shall read carefully in Hansard what has been said and with putting on record that, so far as I understand it, I find it unsatisfactory. I leave open the possibility of coming back to the matter at Third Reading. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hooper Baroness Hooper moved Amendment No. 167A:
Page 52, line 24, at beginning insert ("Subject to subsections (4A) and (4B) below").
The noble Baroness said: My Lords, this amendment was spoken to with Amendment No. 145ZA. I beg to move.
On Question, amendment agreed to.
[Amendment No. 167B not moved.]
Baroness Seear Baroness Seear moved Amendment No. 168:
Page 52, line 27, after ("services") insert ("considering in particular the need for respite care if requested to do so by the person being assessed or by a person who has the responsibility of caring for the person being assessed").
The noble Baroness said: My Lords, I very much hope that the noble Baroness will not say that this amendment is not acceptable, because it particularly mentions respite care. The answer that I imagine I shall receive is that if respite care is mentioned, why are not a whole list of other requirements?
There is a good reason why respite care should be included in the Bill in relation to the services for which assessment is required. That is primarily not so much in the interests of the person to be cared

521
for as in the interests of the person who does the caring. If a disabled or frail elderly person is being looked after, usually by a single carer in their own home, then that is a possibility—although difficult—if there is a certainty of respite care which makes it possible for the carer to have an essential break from the continuous 24-hour caring, seven days a week, 52 weeks a year, which is the position unless there is respite care.
Respite care therefore becomes an absolute essential if people are to be looked after in their own homes by single carers whose life is impossible unless they can rely on respite care. That requirement is therefore in a quite different category from other special considerations which should be taken into account, but do not need to be on the face of the Bill. Without it, that kind of care is just not possible, especially with the kind of cases that will come forward as all the much more severely handicapped and disabled people come out of institutions. I beg to move.
Lord Mottistone: My Lords, I support the principle of this amendment very strongly although I have reservations about the amendment itself. Respite care is immensely important for people with schizophrenia and their carers. It is not good for either of them to spend all their time with the other. They need time for themselves for independent activities and both need long periods apart from each of her, and so on.
Having said that, I very strongly object to the fact that this amendment was tabled at all. In effect, it is exactly the same as Amendment No. 113BF which was moved in Committee. As I said earlier in relation to another amendment, as I have understood the rulings in the past 20 years in this House, one cannot table an amendment at Report which in effect is exactly the same as an amendment which has been defeated by a Division in Committee. It may not be so according to the written word but that is the spirit of it. I think that that is a very sound spirit. That is why I was so annoyed when the noble Baroness took us to a Division on Amendment No. 113BF, which I strongly supported, because I had hoped that we should have been able to progress it to Report.
As a matter of principle I believed that that action was absolutely wrong, so I voted against the amendment, having spoken for it. At this stage, if the noble Baroness again takes us to a Division, I shall vote against the amendment although I think that the principle is absolutely right and I hope that the Government somehow will incorporate it in the Bill.
Lord Swinfen: My Lords, I am not sure that my noble friend Lord Mottistone is entirely right in what he has just said. But I shall not go into that argument.
I very strongly support the amendment moved by the noble Baroness, Lady Seear. Respite care is absolutely essential, not for the disabled person but for the carer, and that includes the whole family. A complete family can be very seriously affected by having a disabled person living in their midst.
The people for whom I work run a number of respite care units. Very often they are not full. They
522
ought to be full. The local authorities, which generally are responsible for paying the fees, do not like paying those fees because they are not cheap. Respite care, on the face of it, appears to be very expensive.
But if the disabled person had to go into full-time care instead of being looked after at home by his family, the cost to that local authority and indeed the nation as a whole would be very much greater. By not investing in respite care there is in the long run likely to be very considerable expense to the public purse as a whole. I strongly support the amendment.
Baroness Hooper: My Lords, the Government fully appreciate the valuable part that respite care can play in giving hard pressed carers a much needed break. I should remind the noble Baroness that the number of short-term admissions to local authority residential care homes in England—which we may take as an index of respite care—went up from 60,200 in 1980 to 92,021 in 1988—a rise of 65 per cent. So it is going in the right direction. We have said repeatedly in discussions on this clause, both in this Chamber and in another place, that our guidance to local authorities on assessment—guidance which can, if necessary, be reinforced by directions from the Secretary of State—will advise authorities to involve users and carers fully in the assessment process and in the subsequent issues on service provisions.
We have also said that we want these decisions to be led by care needs and not by the availability of particular services. That is why an amendment highlighting one particular form of care could perhaps be unhelpful. I say that because it could have the effect of steering authorities and users alike down familiar pathways rather than encouraging them to be creative and innovatory in meeting care needs.
Respite care will be among the care options that local authorities will be able to consider in suitable cases. I certainly very much hope that they will give serious consideration to it when asked to do so by users or carers. I am grateful to my noble friend, Lord Mottistone, for his comments on the amendment. They might also be applicable to a subsequent amendment.
I hope that in the light of that explanation, the noble Baroness will feel able to withdraw her amendment.
Baroness Seear: My Lords, I certainly do not press it at this time of night. I am very disappointed with the answer. I hope that I have made the point as plainly as I can. Respite care is in a category by itself. Other noble Lords have reinforced what I have been trying to say. It would not be difficult for the Government to introduce an amendment of their own on these lines. However, as with almost everything else that we have suggested—making us feel that to a considerable extent we are wasting our time—they are obviously adamant. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Blatch: My Lords, I beg to move that further consideration on Report be adjourned.
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at one minute past eleven o'clock.