§ 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 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.
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, 114.425
|DIVISION NO. 1|
|Addington, L.||Ezra, L.|
|Airedale, L.||Faithfull, B.|
|Allen of Abbeydale, L.||Falkender, B.|
|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.|
|Brightman, L.||Grantchester, L.|
|Broadbridge, L.||Greenhill of Harrow, L.|
|Bruce of Donington, L.||Grey, E.|
|Carmichael of Kelvingrove,||Hampton, L.|
|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.|
|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.|
|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.|
|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,|
|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.|
|Gardner of Parkes, B.||Strathmore and Kinghorne,|
|Granville, E.||Swansea, L.|
|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 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.
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 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.
§ 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 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 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.
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.
§ 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, 95.437
|DIVISION NO. 2|
|Addington, L.||Kilmarnock, L.|
|Airedale, L.||Kinloss, Ly.|
|Allen of Abbeydale, L.||Kitchener, E.|
|Ardwick, L.||Listowel, E.|
|Auckland, L.||Llewelvn-Davies of Hastoe,|
|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.|
|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.|
|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.|
|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,|
|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,|
|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) 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 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—
§ [Amendment No. 147 not moved.]
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 1968.440
§ In moving Amendment No. 147A I am also speaking to Amendment No. 147B. I beg to move.
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 moved Amendment No. 148:
After Clause 43, insert the following new clause:
("Residential services for persons currently or recently dependent upon drugs or alcohol
§ 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) 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.446
§ Clause 44 [Exclusion of powers to provide accommodation in certain cases]:
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—
(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 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 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
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 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.
§ 6.2 p.m.
§ On Question, Whether the said amendment (No. 149) shall be agreed to?
§ Their Lordships divided: Contents, 74; Not-Contents, 106.451
|DIVISION NO. 3|
|Airedale, L.||Glasgow, E.|
|Allen of Abbeydale, L.||Graham of Edmonton, L.|
|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,|
|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.|
|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,|
|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,|
|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 moved Amendment No. 151:
Before Clause 58, insert the following new clause:
§ "Licensing of Horne Care.
§ ""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—
(5) A local authority may refuse to grant or withdraw a domiciliary services licence if they are satisfied that—
(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 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.457
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.
§ 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 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.]463
§ 6.45 p.m.
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)—
§ 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.464
§ 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.