National Health Service and Community Care Bill

HL Deb 14 June 1990 vol 520 cc473-523

Consideration of amendments on Report resumed.

Lord Carter moved Amendment No. 155: After Clause 45, insert the following new clause: ("Calculation of Housing Benefit for People in Residential Care Homes and Nursing Homes

1. (1) Persons who are provided with accommodation under Part III of the National Assistance Act 1948 in premises managed by a person other than a local authority or a landlord who is a registered housing association shall be eligible for housing benefit and the Secretary of State shall prescribe that the amount of housing benefit payable shall be calculated based on the average eligible rent and eligible service charges for residential care homes and nursing homes (excluding homes where the landlord is a registered housing association) in the relevant area.
474
2. (2) Persons who are provided with accommodation under Part III of that Act in premises where the landlord is a registered housing association shall be eligible for housing benefit on the eligible rent and eligible service charges calculated on the same basis as for any other claimant in private rented accommodation.
3. (3) "registered housing association" has the meaning set out in the Housing Associations Act 1985,

eligible rent" and "eligible service charges" have the meanings set out in the Housing Benefits Regulations.").

The noble Lord said: My Lords, with Amendment No. 147 we dealt with the problem of registered housing associations regarding the calculation of the care element and the resulting effect on the finances of the Housing Corporation. This amendment, to which we referred in the debate on Amendment No. 147, deals with the equally important question of the calculation of notional rent. It seeks to exempt housing association residential and nursing home schemes from the notional rent formula so that they are treated in the same way as other forms of accommodation. It would also ensure that for schemes which are not owned or managed by housing associations the notional formula reflects the cost of services.

The Department of Social Security issued a consultation document which proposed a notional rent formula for the payment of housing benefit on residential care and nursing homes. It proposed that local authorities should apply the formula to reflect the rents of two-bedroomed properties in their area. It appears that those proposals may cause particular problems for housing association developments. The amendment seeks to ensure that housing association schemes are treated as any other type of accommodation so that rents can be charged which reflect the type of accommodation which is provided in order that the costs can be recovered.

I do not wish to rehearse the debate that he had at Committee stage, but the noble Lord, Lord Henley, said then that he was aware of the concerns about the issue and that the Government intended to address them in their final decisions on the subject. He also mentioned that consultations were intended with local authority associations. The amendment provides an opportunity for the noble Lord to tell the House how far those consultations have progressed. Perhaps he can also tell the House what is their likely outcome and, most of all, how the Government intend to deal with the problem, which they have admitted exists. I beg to move.

Lord Henley

My Lords, as the noble Lord knows, we debated an identical amendment at Committee stage. The purpose of the amendment is to prescribe the way in which housing benefit should be calculated after April 1991 for people who are provided by their local authority with a place in a private or voluntary residential care or nursing home.

I honestly do not believe that at this stage there is much that I can usefully add to what I said when the matter was last before the House. I hope that the noble Lord will not think me rude or discourteous. I can assure him that we are giving all the issues careful consideration as part of the consultation process with local authorities. At this stage I do not believe that I can go further on the matter. I hope that the noble Lord will accept that and feel able to withdraw his amendment.

Lord Carter

My Lords, we hoped when we put down the amendment that it would stiffen the Government's resolution in this matter and that they might have been able to tell us what the consultation process would produce. It is obvious that we are not going to learn that. It is disappointing, but there is another stage of the Bill. We had hoped that by putting down the amendment we would find out how far the consultation had progressed and whether we would need to put down an amendment at Third Reading. At this stage of the Bill I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 156 and 157 had been withdrawn from the Marshalled List.]

Lord Ennals moved Amendment No. 157A: Before Clause 47, insert the following clause: ("Guidance to Local Authorities —(1) The Secretary of State may issue guidance to local authorities on the application, implementation and purpose of this part of this Act, and on good practice in the exercise of their community care functions. (2) A local authority shall, in making any decision under this part of this Act, have regard to any guidance issued under this section by the Secretary of State.").

The noble Lord said: My Lords, I move this amendment in the sure knowledge that Ministers will not feel that this is a subject that they have already debated. We have had a great deal of discussion about guidance; so much so that this amendment is the natural result of the fact that every time I have sought to put something on the face of the Bill Ministers in their wisdom have decided not to do so and usually said that it will be done by guidance. That being the case I am anxious to ensure that guidance is taken as seriously as possible. The amendment is intended to give some force and weight to the guidance which the Secretary of State issues. The principle is one that could well apply to health authorities. If the Government surprise us all be accepting it I shall suggest to them that we broaden its scope and include health authorities.

The Secretary of State will be issuing copious guidance to local authorities on community care. The purpose of the amendment is to ensure that the results of the working groups on purchasing and budgeting, care management and assessment, inspection and quality assurance, community care plans, mental illness, training, complaints, as well as working groups on joint finance and other issues, should be taken into account. Guidance issued by the Secretary of State has only the force which legislation gives it. For example, the Secretary of State for the Environment has specific powers under Part III of the Housing Act 1985 to issue a code of guidance to local authorities on homelessness. It is only because Section 71 of the Act gives local authorities a duty to have regard to that guidance that it has any force at all. In the case of judicial review it has been held that a local authority under a duty to have regard to guidance must at least consider how the guidance applies and if it makes a decision departing from the guidance it must have good reason for doing so.

That is not a particularly onerous burden on local authorities but it is a sensible precaution which generally improves the standard of decision-making in local government. It gives some assurance that the Government's oft-repeated assurance to the House that the guidance is a means of generalising good practice is meant seriously. Clearly guidance will generalise nothing if no one needs to read it. If a local authority, in the words of the amendment? shall, in making any decision under this part of this Act, have regard to any guidance issued under this section by the Secretary of State", in order to do that it must at least read it.

The consequence would be that the work which has gone into the preparation of guidance would be wasted if local authorities did not read the guidance. Local authorities would not have any incentive to use best practice from the guidance where that proves to be more expensive than their current operations. The only way in which anyone could be assured that local authorities were using the guidance would be to wait and see whether the Secretary of State was sufficiently committed to his own guidance that he would incur the expense and trouble of using his default powers under Clause 51. The Government have already said that they do not envisage extensive use of the Clause 51 powers. Perhaps the Minister will address himself, or herself, to the clause and how it might be used.

The amendment gives the Secretary of State specific power to give guidance and local authorities a duty to have regard to it. It is a very modest amendment but it is a modest amendment which might ensure that the enormous amount of guidance which will be consequent upon the Bill will have some effect. It is hoped that the Government will at least be able to give some clear indication that they intend to give the guidance some kind of statutory force. I beg to move.

Baroness Hooper

My Lords, I am happy to say to the noble Lord that the requirement that he seeks to add to the Bill is already covered by relevant legislation.

The community care functions under this part of the Bill will become social services functions by virtue of the provisions in paragraph 11 of Schedule 9. Section 7 of the Local Authority Social Services Act 1970 requires local authorities to have regard to general guidance given by the Secretary of State when carrying out their social services functions. It is implicit in that section that the Secretary of State already has power to issue guidance and he does not need to be given specific powers. I might add that by making those functions social services functions we shall also bring them within the scope of the general power of direction, the power to hold inquiries, the complaints procedure and the default action all set out in additions to the Local Authority Social Services Act 1970 in Clause 51 of this Bill. I hope and feel sure that in view of this explanation, the noble Lord will withdraw his amendment.

Lord Ennals

My Lords, I am most grateful to the Minister for that helpful explanation of the fact that what is proposed in the amendment will be effected as she said. I am grateful to her for her careful answer and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 [Local authority plans for community care services]:

Lord Carter moved Amendment No. 158: Page 51, line 35, at end insert: ("(1A) Any plan as defined by subsection (1) above shall include the local authority's proposals for ensuring that community care services are provided in a manner consistent with its powers and duties under the Children Act 1989").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 172.

We discussed this amendment in Committee when we said that we wished to bring the matter back before the House. There is an absence of a clear Government rationale for the relationship between the Children Act and this Bill. That is exemplified by the current unwillingness of the Government to establish any mechanism for considering the relationship between the Act and the Bill, either within the Department of Health or in consultation with other statutory and voluntary organisations. In view of the imminent implementation of both pieces of legislation, there appears to be a danger of leaving things too late. We are aware, for example, that local authorities are already individually making plans to implement the two pieces of legislation. We are advised that different authorities appear to be adopting quite different strategies and structures to accommodate the link between the Children Act and this Bill. So far as we know, the Government have as yet offered no guidance on the issue or expressed a view on how they see the relationship developing.

We pointed out at length in Committee the areas of overlap. I do not wish to rehearse the argument again, but the noble Baroness, Lady Blatch, did not give a very satisfactory answer. We pointed out the problems faced when young people with disabilities and other special needs reach the age of 18 and then find that the nature of service provision available to them as adults contrasts dramatically with what they had experienced as children. The Government have a role in creating a framework whereby that transition can be made smooth. It is not reasonable to say that this is a matter solely for local judgment.

It must be made clear that we do not seek the merging of the statutory base for adult and children's services. We emphasise that they share the common objectives, as the Government acknowledged in the White Paper, Caring for People. That point must be formally recognised. There are any number of existing pieces of legislation, including the Bill, which make explicit links with other Acts as a way of trying to ensure consistency of service delivery. In this case, there is a link between the Bill and the Disabled Persons Act to which we shall turn later. All that we are trying to achieve with this amendment is a recognition that similar links should be made with the Children Act.

In Amendment No. 172, we have used the wording of the Children Act to try to ensure that inter-agency co-operation is consistent between the two pieces of legislation. For the Government then to deny the validity of the amendment appears highly inconsistent as they have already incorporated almost exactly the same form of words into the Children Act itself. Since that requirement is precisely what is included in the Children Act, it appears that, if the Government do not accept the amendment, they are challenging their own legislative position. We should appreciate some clarification on that point.

In conclusion, I must question the claim advanced by the Government in Committee and elsewhere that the separation of provision for children has worked well in the past. It is obvious that it has created difficulties at the point where children move into adulthood and take on adult responsibilities, but where services of a particular kind may still need to be made available and have stopped short of the age of 18. There is enough evidence of confusion from past experience to suggest that a more systematic approach is required. That is the purpose of the amendment. It is essential that some effort to integrate services between the Children Act and this Bill should be made. I beg to move.

8.15 p.m.

Baroness Blatch

My Lords, the noble Lord raised his concern at Committee stage, and has done so again today, that there should be consistency between the two pieces of legislation. It might therefore be helpful if I try to set out why we believe that they are indeed compatible.

The Children Act places a general duty on local authorities to safeguard and promote the welfare of children in their area who are in need. So far as it is consistent with that duty, they are required to promote the upbringing of children in need by their families. Local authorities discharge their duty by making provision for a range of services specified in the Act. These include, among other things, home helps, day care and holidays as well as social work advice and support. Where a child in need is identified, the assessment carried out for the purposes of the Children Act will include an assessment of the family circumstances in so far as they affect the needs of the child concerned. The Act specifies that a service can be provided to any member of a child's family so long as it is directed at promoting the child's welfare. Any assessment may be carried out simultaneously with other statutory assessments, such as those required under the Disabled Persons (Services, Consultation and Representation) Act 1986.

Under the Bill now before us, the needs of individuals requiring community care will be assessed by local authorities. Where appropriate, that assessment must be as defined in the Disabled Persons (Services, Consultation and Representation) Act 1986. The assessment procedure will take into account the views and needs of the carer or carers as well as those of the service user. Subsequent provision of care and support will be based on that assessment and, wherever possible, the aim will be to enable individuals to live as independently as possible in the community. Thus, both pieces of legislation allow for the needs of both users and carers, who are usually the family, to be taken into account when providing care and support services. It will of course be important for local authorities to ensure a smooth transition in arranging services for young adults (over 18) previously covered by the Children Act. I know that that matter has concerned my noble friend Lady Faithfull.

As I said in Committee, that transition from a service designed for children to one designed for adults is always a challenge to professional social workers and can be unsettling for the young adult concerned. I can assure the House that that area of concern will be covered by guidance for those aged 18-plus.

The key is surely good assessment of the young adult's changing needs and family relationships combined with good communication and co-operation within the social services department and with any other agencies that may be involved. However, I am not clear what a statutory duty as suggested in the amendment would add in practical terms for the individual client. It seems to me that any problems which might arise would do so from problems of managing the transition which must be addressed locally in social services departments. The legislation is already consistent and any further central help would more properly come in the form of good practice guidance.

Amendment No. 172, like some others that we have discussed, for example in relation to planning, seeks to get into the detail of how local authorities carry out their responsibilities for community care. I am sure that the intention in many of those amendments is to help local authorities by pointing them in the direction of how to fulfil their duties effectively. But, as I and my noble friend Lord Henley have pointed out, the Bill is not the place for good advice. Its purpose is to lay the foundation on which local authorities can build. As noble Lords are aware, we shall supplement the Bill with more detailed guidance on policy which will spell out what is expected of local authorities in relation to their community care functions. That in turn will be followed by advice on good practice, prepared by the Social Services Inspectorate, on how they might approach various aspects of their duties.

This amendment suggests that local authorities may request help from other statutory authorities. Local authorities can already do that—it is an eminently sensible thing for them to do—but I do not think that we need to put it on the face of the Bill. There are many areas of overlap between authorities in carrying out their statutory duties. But I do not believe that this amendment would add anything that is not already covered by the statutes relating to the duties of each authority. I therefore hope that, with that explanation, the noble Lord will feel able to withdraw both the amendments.

Lord Carter

My Lords, with the leave of the House perhaps I may clarify one point. The noble Baroness referred to the guidance. Does she have any idea when the guidance will be available, even in draft?

Baroness Blatch

My Lords, I referred earlier to guidance. I believe that a substantial amount of guidance will be put out in draft form tomorrow. I see an affirmative nod. It will be included in the drafts that go out tomorrow.

Lord Carter

My Lords, it is not Friday the 13th is it? It is extraordinary what an amount of guidance is being put out the day after we discuss these amendments. I am sure that it is perfectly coincidental and happens completely by accident. When I hear Ministers say that they place great reliance on the assessment for community care, local authorities' responsibilities, the smooth transition, liaison and co-ordination, I am tempted to say—although it would be extremely rude—that the Government are passing the buck to local authorities. I shall not say it.

I hear what the Minister says. Obviously we cannot get much further this evening. I am sure that Ministers are aware that there is considerable concern on the part of a number of organisations, and the Children's Society in particular, about what they see as the overlap or muddle that may occur. We shall wait to see the famous guidance tomorrow—which looks like being a very busy day with all the guidance that is being produced. We have to reserve the right to come back on this matter perhaps even at Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kilmarnock moved Amendment No. 158A: Page 51, line 40, after ("services") insert ("giving consideration to the religious persuasion, racial origin and cultural and linguistic background of inhabitants").

The noble Lord said: My Lords, this is another issue which, I am happy to say, we have not previously debated. Amendment No. 158A attaches to Clause 47, which governs plans for community care. Amendment No. 167B attaches to Clause 48, governing the assessment of needs for community care. Taken together they seek to oblige local authorities to give consideration to: the religious persuasion, racial origin and cultural and linguistic background", of their communities, both in drawing up their plans and in making their assessments.

One may ask: why is this necessary? Are we not already a multi-cultural society and do not these things happen already? The answer, sadly, is, not by any means everywhere or widely enough. The better local authorities are attempting to improve their services generally because of a growing recognition that particular groups in their communities may have particular needs which require a different approach. There is very little point in attempting to give accurate information about the services on offer to a local community if, in the first place, a section of the community does not speak English as its first language and, in the second place, the services are offered in such a way as to make trust in the local authority's sensitivity to cultural, religious and ethnic differences unlikely to be very high.

So a sensitive response to the particular needs of sections of the community is one which recognizes that the kinds of service needed may be the same but the approach to delivering and advertising those services may need to be rather different. Unless authorities are required to consider these issues at the stage of planning their services it is probable that such services on offer will be inaccessible and inappropriate to large numbers of their populations.

More specifically, black people with HIV/AIDS have experienced great difficulty in their contact with statutory services and have had to rely very extensively on such voluntary groups as "Black HIV/AIDS Network" and "Black Liners" to make their case for them and to talk to health advisers, social workers, counsellors and doctors on their behalf in order to secure access to appropriate services for those who come from ethnic minority communities, some without any or with little knowledge of English. Therefore, I suggest that it is vital that the requirement to deal not only sensitively but competently with such members of their populations be built into authorities' community care plans.

Next, there are severe housing problems. Clause 47(2) of the Bill obliges local authorities which are housing authorities to include details of how those authorities propose to meet the housing needs of the persons in their areas who are in need of community care services. That again is particularly applicable to black people with HIV or AIDS. There is considerable evidence of existing tenants being victimised and attacks being made on their person and homes. This leads to a need for prompt rehousing in alternative accommodation which is suitable to their medical condition, secure and sufficiently supportive to ensure their reasonable safety and well-being.

In Hammersmith and Fulham from the beginning of this year to the end of last month there were recorded eight separate serious cases of harassment of people with HIV and AIDS between council and private tenants and four additional cases from other boroughs which sought advice from Hammersmith and Fulham. But other local authorities might simply want to wash their hands of such problem cases requiring both housing and community care if they are to remain in the community rather than in institutions.

In a particular case, someone with advanced HIV disease approached Hammersmith and Fulham housing department. He was an ex-intravenous drug user who had been clear for six to nine months and was receiving additional therapy from the London Lighthouse. He was terrified of returning to the local authority of his origin, where he believed that he would not receive sympathetic treatment and additionally would be under pressure and threats from local pushers to go back to his earlier habit.

It is quite wrong that some authorities should be allowed to opt out of difficult cases which require help, thus loading them increasingly onto more enlightened authorities. Thus, it seems to me to be important to have a statutory obligation to require all local authorities to prepare in their plans and to make allowance in their housing and care policies for people from different ethnic backgrounds experiencing the sort of difficulties that I have described.

As your Lordships will be aware, there is a very large black community in south London. Many of those with HIV and AIDS are treated at St. Thomas's Hospital. That puts tremendous pressures on local authority accommodation in the surrounding areas. There will be a natural tendency for local authorities to pass on those pressures to other authorities who may not want to assume them. These problems should be shared as widely as possible among social services departments, and a statutory requirement in the words that I propose would be of great assistance.

Finally, and quite apart from the humane and sensitive treatment of people in very difficult circumstances, there is also a public health point to be considered. If people in the categories of which I am speaking are shunted around the country without proper accommodation, treatment, domiciliary care or counselling, there is the additional danger of the spread of infectious disease. Alternatively, if they return to hospital they occupy beds, which their condition may not warrant, at a greater cost, thus reducing the availability of those beds for other purposes.

On all those grounds, I suggest that something along the lines of what I propose is needed in the Bill. I beg to move.

Baroness Blatch

My Lords, the Government accept that the characteristics mentioned are some of many which need to be taken into account when planning services and carrying out assessment of individual needs. Indeed, in paragraph 2.9 of Caring For People it is stated that: Good community care will take account of the circumstances of minority communities and will be planned in consultation with them". However, we do not believe that it would be helpful to draw particular attention to them on the face of the Bill and so I cannot support the amendment. I can repeat the assurance given to the noble Lord, Lord Peston, on his withdrawal of a similar amendment on 10th May (Hansard, col. 1588) that the need to take account of these factors will be stressed in our guidance, which can be reinforced by directions.

In the light of that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Kilmarnock

My Lords, we have read many things in the White Paper which are not in the Bill. I agree that not all of them can be there but the spirit of some of them could perhaps have been reproduced rather more accurately on the face of the Bill.

That takes us back into the world of guidance about which we have heard so much this evening. The noble Baroness has already made a distinction between guidelines and guidance. She implied that guidance is somewhat stronger. She has also spoken of good practice and about advice on good practice being given to local authorities by the Social Services Inspectorate. All that sounds admirable, but it is extremely unclear what precise status and force these various exhortations have. Can the noble Baroness enlighten me as to what force she believes the guidance issued by the Social Services Inspectorate will have? In relation to that and the drafts which have been referred to, can the noble Baroness say to whom the drafts will be circulated and whether we shall see them on the day they are published, which I understand will be tomorrow?

Baroness Blatch

My Lords, with the leave of the House, the answer to the question about the strength of guidance is this. As we have been told a number of times, guidance is stronger than guidelines. My understanding is that if an authority did not take note of guidance, the Secretary of State has the power to make directions. In other words, guidance is expected to be followed. In the absence of it being followed and there being breaches, the Secretary of State can use powers so to direct.

I should have thought that some of the examples given by the noble Lord, which were very distressing, were in breach of the law on racial discrimination. I therefore believe that where that can be proved, the law should be invoked.

Lord Kilmarnock

My Lords, I am grateful to the noble Baroness. She has stated that the matter that I have raised will form part of guidance. She has given me some slight reassurance on the strength that is to be attached to it. I shall read carefully what she has said, and I shall read the draft and decide whether it is necessary to come back to the matter at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.30 p.m.

Lord Seebohm moved Amendment No. 159: Page 51, line 40, at end insert: ("(2) The plan prepared under paragraph (a) of subsection (1) above shall include arrangements made between the local authority and each District Health Authority such as is mentioned in paragraph (a) of subsection (1) above whereby—

1. (a) the District Health Authority shall give the local authority at least 14 (fourteen) days' notice in writing of the date of formal discharge into the area of the local authority from the Authority's hospitals of—
1. (i) persons who have received medical treatment for mental disorder (other than those to be immediately discharged pursuant to an order made by a Mental Health Review Tribunal);
2. (ii) other disabled persons who have been resident in hospital in excess of such period of time as the Secretary of State shall direct;
3. (iii) other persons who have been resident in hospital for more than three months;
• and who in the opinion of the authority may need the provision of community care services after discharge;
2. (b) if the local authority agrees with the opinion of the District Health Authority given in the notice under paragraph (a) above they shall prior to the discharge of that person carry out an assessment in accordance with section 45 below of his needs for community care and then decide in accordance with that section whether his needs call for the provision by them of any such services; and
3. (c) if community care services are to be provided, a named individual is appointed to oversee the provision of those services.

And for the purposes of this section "mental disorder" and "disabled person" shall have the same meanings as in the Disabled Persons (Services, Consultation and Representation) Act 1986.").

The noble Lord said: My Lords, I believe that this amendment is probably one of the most important on Part III of the Bill. In moving the amendment I shall rely very much on the skills and knowledge of the noble Lord, Lord Mottistone, about those suffering from mental disorder. His knowledge and skills are much greater than mine.

We both put down amendments at Committee stage which overlapped. This amendment is a combined effort which we believe covers the point that we were both trying to make. The objective is to ensure that local authorities are given 14 days' notice of a discharge of a patient so that an assessment of his needs can be made. It is a requirement that does not at present exist and is not covered in the Bill.

The amendment covers three categories of patients. The first concerns those who have been receiving medical treatment and who suffer from mental disorder. The second refers to other disabled persons who have been in hospital for some time; the length of time is to be fixed by the Secretary of State after consultation with the appropriate authorities, normally the local authority. The third category concerns any person who has been in hospital for more than three months.

I need hardly stress the importance of the first category. My experience concerns those who have been discharged without arrangements for after-care and those who have discharged themselves knowing that they are not fit. We all know what happens then; I need not elaborate. The noble Lord, Lord Mottistone, will no doubt elaborate if he feels it necessary. The second category would frequently merely return to previous management for care. For many, a fresh assessment before care will be necessary. The third category concerns anyone who has been out of circulation and is likely to need help to rehabilitate himself or herself into the responsibilities and problems of ordinary life.

It is worth repeating that there is no obligation at present for health authorities to notify the local authority that they are about to discharge a patient. The amendment is strongly supported by the Association of Directors of Social Services, the Schizophrenia Fellowship, MENCAP and RADAR. I beg to move.

Lord Mottistone

My Lords, I fully endorse the remarks of the noble Lord, Lord Seebohm, about this being probably the most important amendment. For me it is certainly the most important amendment to the Bill. I am most grateful to the noble Lord, Lord Seebohm, for having suggested at Committee stage that we should get together, as we did. We were able to have a meeting. I thank the noble Baroness, Lady Hooper, for meeting us to discuss it. I hope that we were able to convince her and her officials that we were discussing a matter which requires some provision.

I have the support of the Association of Directors of Social Services—who in the last resort prepared the amendment and met with the requirements of the National Schizophrenia Fellowship—and Rescare, in addition to those organisations that the noble Lord, Lord Seebohm, mentioned.

Although I shall try to be brief, because it is so important I have much to say. The amendment has three vitally important aims. It seeks, first, to ensure that local authorities are given advance warning of patients who are thought to be ready for discharge from hospital and who in their consultants' opinion will need community care services. Secondly, it enables the local authority to decide (a) which of those patients it can assess before discharge; and (b) what services they need. Thirdly, it makes a named individual responsible for overseeing any community care services that are to be provided.

There is widespread concern about how a persons' needs for community care services may first "appear" to a local authority (Clause 48), so triggering the vital assessment which is the gateway to any provision of services. A particularly critical time is before discharge from hospital. That was the fundamental argument behind Section 7 of the disabled person's measure. That was the nub of the Schizophrenia After-care Bill which I introduced to your Lordships during the last Session and which was supported on all sides of this House.

The Audit Commission—which is more important than many people in this country—in preparing for its new responsibilities for the NHS under the Bill has already said, if suitable support is not co-ordinated at this critical point of transition, much expensive constructive work in the hospital may be rapidly undermined". The amendment covers three groups of patients. I shall speak only about those who have received treatment for mental disorder. The noble Lord, Lord Seebohm, mentioned the others. It is not limited to schizophrenics, as was my Bill. The House wanted its provisions extended to all mentally disordered persons. That was ruled out for technical reasons at that time. I am happy to have met the wishes of the House in the amendment.

Nevertheless, as the noble Lord, Lord Pitt, said, even using a broader definition, its provisions are most likely to benefit schizophrenics and others with serious psychotic illnesses. It is essential to distinguish them from disabled persons and others, where a special need for community care can reasonably be linked with their longer stay in hospital. That was where Section 7 of the disabled persons legislation seemed to us to fall down.

Contrary to what is still generally believed, the overwhelming majority of schizophrenics are not and never have been long-stay hospital patients. But as the Chief Medical Officer pointed out in 1988, It remains an unpalatable fact that many mentally ill people require support and treatment on a long term basis". He also said, Over half of those admitted to hospital with a diagnosis of schizophrenia will be left with significant residual symptoms and seriously impaired social functioning". I should like to quote some figures to back up what I have said. The latest figures refer to 1986. In 1986, in English hospitals there were 25,046 admissions of schizophrenics, of whom 13,307 were discharged in less than a month (over half the total), 20,665 were discharged in less than three months (four fifths of the total) and 22,872 were discharged in less than six months. Section 7 of the Disabled Persons (Services, Consultation and Representation) Act would not apply to any of those people. Of the 25,046 admissions, 90 per cent. were re-admissions. Relapses needing hospital treatment are a characteristic feature of the fluctuating illness. However, almost certainly some would have been preventable if adequate, continuing medical and social care had been available.

There is no doubt that after-care for schizophrenia is crucial. We know that failure to provide it has led to the shameful homelessness of some, to the inappropriate imprisonment of others and to the colossal strain on many family carers. It led to the murder of the social worker Isobel Schwartz, the public inquiry into her death and to various recommendations which surfaced in the White Paper Caring for People. In the chapter about the mentally ill, legal provisions about after-care recommended in the inquiry report have not so far commended themselves to the Government.

This is an important amendment. I hope that after our meeting with the Minister she will, if not accept the amendment exactly as it stands, be able to welcome it and make provisions in the Bill which represent the amendment's main features, particularly those relating to schizophrenics.

Lord Ennals

My Lords, I am grateful to the noble Lords, Lord Seebohm and Lord Mottistone, for their work in preparing the amendment following their discussions within the department. Speaking from these Benches and as president of MIND, I totally support the argument. I agree with both noble Lords that this is an extremely important amendment.

Almost every day we see or hear from all sides the consequences of the absence of a statutory obligation on the district health authorities to inform local authorities of people who are to be discharged. We see the consequences of the Government's failure to implement Section 7 of the Disabled Persons (Services, Consultation and Representation) Act 1986. As was said by the noble Lord, Lord Mottistone, the Act would not cover all such people but it would have covered many of them.

The Government have made clear the fact that they do not intend to implement that section. That is most sad. There are many cases in which social services departments cannot find out about people arriving in their areas and requiring community care services. If local authorities are not given notice of people who are about to be discharged and if those people are not referred to social services departments there is no way in which we can blame the departments. How are they to know? It is often the case that people moving into an area for which a social services department is responsible do not originate from that area. They may have started life somewhere else and then been admitted to hospital. They may have come from any part of the country.

Unless there is a way in which local authorities receive such details and unless health authorities have an obligation to inform them, the present situation will continue. I agree with the noble Lord, Lord Mottistone, that a large number of such people suffer from schizophrenia. Many others suffer from chronic depression or other psychotic conditions. However, for the sake of the argument the nature of their complaint does not matter. For that reason the noble Lords were wise to use words in their amendment which do not specify schizophrenics or a particular type of person.

The amendment is crucially important. The noble Lord, Lord Mottistone, referred to the case of Isobel Schwartz. I could give case after case in which tragedies have occurred—for example, the Sharon Campbell case, which we debated at length in this House. The case for the amendment is overwhelming. The Government must say by what means it will be made obligatory for health authorities to consult with and inform local authorities in order that they may pick up these numerous cases. I hope that we shall receive a satisfactory answer.

8.45 p.m.

Lady Kinloss

My Lords, I support the amendment. In recent years it has been hard to escape from the image of homeless people sleeping rough in our major cities. As noble Lords have heard all too often, many have a history of mental illness. For them community care has meant no more than a doorway in the Earls Court Road or in "cardboard city" around Waterloo.

Today the sixth report of the Social Services Select Committee in another place stated that the Disabled Persons (Services, Consultation and Representation) Act 1986 should be implemented immediately. Unfortunately, the Government have made it clear that Section 7 is not to be implemented. That section provides for assessment before discharge. Therefore, I hope that the noble Baroness will accept the amendment.

Baroness Faithfull

My Lords, I wish to refer to the people who must arrange for patients in hospitals to return to the community. When people suffer from, for example, schizophrenia or a mental disability, not only must one find accommodation for them but one must also deal with the neighbours in order to make them acceptable to the community. If people are physically handicapped one must find separate places for them.

In a recent case it has taken me eight months to find an appropriate placement for someone who had a severe stroke. If we are to rehabilitate or place such people in the community, a great deal of time must be taken in negotiating the accommodation and in dealing with the neighbours and the family to prepare for their reception at home or somewhere in the area.

Lord Allen of Abbeydale

My Lords, the case for the amendment has been clearly made. I wish to say only that MENCAP is heartily in favour of it. We learned with regret the proposal of the Government to postpone indefinitely the implementation of Section 7 of the 1986 Act. I noted with interest the fact that the Select Committee in another place has now recommended that the section should be implemented. However, the proposal contained in the amendment is even better and we hope that the Government will accept it.

Lord Thurlow

My Lords, I wish to express my strong support for the amendment. The arguments for it have been expounded clearly. My interest is in relation to those who are mentally ill and discharged. I wish to refer to the resource prospects in relation to after-care which makes the tying down of the procedure particularly important. In previous debates we have listened with growing apprehension to the scenario for resources. It appears that for the foreseeable future the pressure on local authorities in relation to the poll tax and so forth means that the prospects for after-care are poor. Therefore, it is all the more important that the procedures should be laid down as far as possible within a cast iron framework.

Baroness Elliot of Harwood

My Lords, I wish to support the amendment most strongly. Since its formation I have had a close association with a psychiatric association. For many years I was chairman of a local health authority. I assure the Minister and the Government that the amendment provides a way of saving money; it is an investment. If when patients are discharged into the community there are enough people to help, understand and care for them they will be saved from returning to hospitals, mental institutions and so forth. We know it is one of the tragedies of life that once somebody is very ill or has a mental condition of some kind it is very difficult to help them except over a long period; and if they are to be out of the hospital and out of care they will simply go back into a hospital again. It is vital that they should be cared for by the community. That can only be done if there is the closest association between the health authority, the community councils and local government. I hope that the Government will accept this amendment.

Lord Renton

My Lords, although we have had an excellent debate up to now, I wonder whether I might dare to add a few more facts and arguments to what we are discussing, especially from the point of view of MENCAP. The policy of discharging mentally-handicapped people from long-stay hospitals where there are still countless thousands of them, was initiated by MENCAP in 1980 when I was chairman. It was supported by the Government and by the noble Lord, Lord Ennals, who was then the Opposition spokesman, and indeed it commended itself to everybody. Therefore we welcome that policy. However, a vital part of it is that people should not be discharged unless there are effective alternative arrangements for them to live in the community in suitable accommodation where they will be properly cared for. That really means in small homes, much smaller than long-stay hospitals—homes of 10 or 12 people at the most.

In MENCAP we started, with some government support, a massive programme of creating such small homes and I believe that our branches now have over 200 of them. As a result—and it is only right and fair that one should say this—after being discharged very few mentally handicapped people have nowhere to go. The mentally ill have been much less fortunate. However, whether people are mentally ill or mentally handicapped, we really must take this opportunity to ensure that none of them is ever found to be homeless after discharge from hospital. This amendment will ensure that they never will be homeless.

There is a real practical need for this amendment, and I hope that my noble friend on the Front Bench will not find reasons for rejecting it because, if I may say so with deep respect, they would be purely departmental reasons.

Baroness Seear

My Lords, I intervene in this debate simply to say that this amendment has our very strongest support.

Lard Swinfen

My Lords, noble Lords from all side, of the House have spoken about the position of disabled people on leaving hospital. We have an increasingly elderly population in the country. This amendment will apply to them equally, whether or not they are disabled. The tendency today is for people, when they grow up, to leave home and to work. and live well out of reach of their parents. Often when an elderly person is discharged from hospital the only person at home will be another elderly person—perhaps the spouse—who quite often may be infirm and incapable of looking after someone who is both elderly and ill. It is essential that proper arrangements should be made before discharge from hospital, and in the long run it will be a great deal more economical.

Baroness Masham of Ilton

My Lords, I, too, would like to support this amendment. I am told that subparagraph (ii) incorporates physically disabled people. I have a whole file at home from a surgeon in Newcastle-upon-Tyne, who has had difficulty in getting his patients back home. His acute beds are being blocked and although some of the local authority housing departments are very good, some are only middling and others are totally hopeless. His health authority will not employ an occupational therapist to help and advise the housing authorities, and there is a shortage of hospital social workers. This amendment might help to encourage more hospital social workers and occupational therapists to help to get people home.

The Spinal Injuries Association is concerned about this and says that this is a good amendment. So many awful accidents happen. Sometimes one half of a family is killed and the other person, perhaps after a long time in hospital, has to go back home. It can be very difficult for that person to adapt without the help of husband or wife, and so there is a great need. The local authorities and the health authorities need to be encouraged to work together, otherwise this problem will get worse.

Baroness Hooper

My Lords, because we recognise the need for a seamless service for patients being discharged from hospital and in particular the special needs of those who have had treatment for a mental disorder, we have taken steps to address the situation. First, we have issued guidance on discharge planning for all patients. That was issued in a comprehensive circular last year. It covered the care of patients released after a short spell in hospital as well as of those who have received long-term care.

Secondly, our draft guidance on community care planning, which is to be issued tomorrow, specifically mentions discharge procedures as an area on which health and local authorities should make planning agreements. As part of such agreements, health and local authorities will need to reach agreement on assessing the needs for care services provided by local authorities.

Thirdly, in relation to mentally ill people, we have made it clear that mentally ill people discharged into the community should have a precise plan drawn up for their aftercare. This should help both to prevent inappropriate discharge and also lessen the risk of people losing touch with the caring services at a later stage. We have recently issued for consultation with local authorities, district health authorities and other interested bodies draft guidance on care programmes for mentally ill people.

Perhaps I may mention some good news in all this. I would say to my noble friend Lord Renton, in relation to mentally handicapped people, that I had the pleasure of going to Huddersfield yesterday to open a community care unit for patients discharged from an institution, which until eight years ago had 3,000 mentally handicapped people in it. That institution now contains just over 200 people, and the facilities that are being offered in a community setting are excellent and also a very good example of good practice—an example which is being replicated up and down the country. So I would say that everything is not impossible in the worst of all possible worlds.

Fourthly, Section 117 of the Mental Health Act 1983 already imposes a duty on district health authorities and local authorities to provide, in collaboration with voluntary agencies, aftercare services for certain categories of mentally disordered patients who have ceased to be detained and who leave hospital. The duty on the authority is to provide such aftercare services until they are satisfied that the person concerned is no longer in need of them.

Finally, the arrangements for the mental illness specific grant, which will be paid through regional health authorities, will bring further pressure to bear on local authorities to bring all their services and arrangements up to scratch and encourage co-operative planning locally.

Eyebrows have been raised once or twice in the course of today's discussions about the timing of the issue of guidance on community care planning. That guidance is to be issued tomorrow. I wish to make it clear that the fact that it is to be published the day after rather than the day before these discussions, is entirely fortuitous. That has depended upon practicalities such as printing deadlines. Formal consultation will take place with local authority associations, the Association of Directors of Social Services—

9 p.m.

Lord Ennals

My Lords, is the noble Baroness really saying that it was necessary for the draft guidelines to be published after today's debate, and that that could not have been done before? I find that very difficult to understand.

Hansard is printed overnight, and look at the way in which that is done and the accuracy which is achieved! I should have thought that it would have been possible with some foresight and respect for your Lordships, to have had the guidance, which is not a large volume, printed in time for today's debate. After all, 12 noble Lords on all sides of the House have spoken on this amendment. Should not the guidance have been in our hands in time for today's debate?

Baroness Hooper

My Lords, I hate to worry the noble Lord, but it will be quite a large document. We have not been aware of the date of today's discussions sufficiently early—namely, at the initiation of the consultations which had to take place—to enable us to have the guidance in the lap of the noble Lord at what he considers to be the appropriate time.

Nevertheless, consultation will now be with local authority associations, the Association of Directors of Social Services, the NCVO and medical and nursing professions. In addition, it will be distributed widely to local authorities, health authorities, the voluntary sector, professional and other organisations involved in implementing the proposals, and it will be available to your Lordships.

This amendment also seeks to introduce a requirement for a named individual to oversee care arrangements which the local authority agrees to provide. That is the point made by my noble friend Lord Mottistone. We agree that a named individual or key worker should, as a matter of practice, play an integral part in case management. Our draft guidance on the care programme approach for the mentally ill, which has been recently circulated for consultation before today's discussions, makes that very point in paragraphs 8 to 10, of which noble Lords will already be aware. The annex refers to guidance on aspects of the care programme approach. Our draft guidance on assessment and case management at paragraph 24 also covers that area.

This type of detailed advice about how local health authorities discharge their obligations to care for patients and clients is much better addressed as part of the guidance which fleshes out the framework of care which this Bill attempts to establish.

I am grateful to the noble Lord, Lord Seebohm, and to my noble friend Lord Mottistone, for coming to see me in order to discuss the position and for giving me this further opportunity to explain how we believe the matter is covered.

Perhaps I should add that the effect of the amendment is merely to require local authorities to include such arrangements in their plans. If the intention is to impose a duty on district health authorities to give notice to local authorities in the circumstances mentioned, then the amendment is defective.

I hope that the movers of this amendment will appreciate that we are taking very seriously this situation and will not feel that the only way to achieve the best possible results is by insisting upon this amendment.

Lord Mottistone

My Lords, before my noble friend sits down, perhaps I may ask her two questions. She referred to Section 117 of the Mental Health Act. Is she aware that in 1986 of the 26,077 schizophrenics discharged, only 1,175 were eligible for after-care under Section 117? It does not answer the problem of schizophrenics.

Is she telling us that effectively—and until we see it we cannot believe it—regulations and guidance will replace this part of the Bill? Does she not agree with me that it is very important to have in major legislation underpinning matter from which circulars can be developed rather than circulars, even if they are already in existence? Circulars can be changed at the drop of a hat because they do not even have to come before Parliament. The whole burden of my noble friend's remarks, as I saw it, was: "Oh yes, it is all in circulars". Does she not agree that that is a very inadequate reply? It is terrible that, after seeing my noble friend, this very important matter is being left to circulars, whether or not they are issued. I just do not like this.

Baroness Hooper

My Lords, with the leave of the House, my noble friend has in a sense contradicted himself in his last remarks in that he has pointed to a matter which is enshrined in legislation and then said that that was not effective—that is, Section 117 of the Mental Health Act.

Lord Mottistone

My Lords, it is not good enough.

Baroness Hooper

My Lords, I have pointed to the various forms of guidance which will, as I said earlier, flesh out the framework of care, the general principle of which is established in this Bill. After all, this is a framework Bill and it provides the necessary legal framework. I have explained at an earlier stage of the Bill that guidance carries a great deal of clout. In draft it is subject to considerable consultation so that it is not something which is in any way prepared secretly. If not complied with, it is for the Secretary of State to enforce the guidance by giving the necessary directions. The position therefore is well covered and I hope that your Lordships will recognise that.

Lord Ennals

My Lords, does the guidance deal with the 14 days' notice? Does it deal specifically with the issue in the amendment?

Baroness Hooper

No, my Lords. In relation to a previous amendment I said that a fixed amount of time can very often become a maximum amount of time and create inflexibility in an area where we believe flexibility to be important. As I said in relation to an earlier amendment on a slightly different topic, assessment will take as long as is necessary.

Lord Renton

My Lords, before my noble friend sits down, would she agree that the guidance she offers does not have the force of law and that what we are seeking in the amendment is to have these matters covered by the force of law in the Bill?

Baroness Seear

My Lords, does the guidance deal with this position? Someone comes out of care and it is decided that he or she must go to the family or their nearest relation; the family may feel unable to look after that person. If there were rights established on the face of the Bill regarding prior consultation, the family could claim that the arrangements were not adequate. Does the guidance give the family the right to claim that the arrangements are inadequate and that it cannot accept the person who has come out of care? That is the situation which has to be protected.

Baroness Hooper

My Lords, with the leave of the House perhaps I may say that the guidance is being issued in draft form for the purpose of receiving comments and advice from relevant bodies. I have listed them at some length. They will be able to make any necessary amendments should the draft guidance be found to be wanting.

Lord Mottistone

My Lords, perhaps my noble friend could say that this matter will be taken back and brought in as a government amendment at Third Reading. Would that not be something she could consider, even at this late point?

Lord Seebohm

My Lords, there is no answer to that. I must say that I am not only disappointed at the reply from the Government Benches; I am horrified, and for a number of reasons.

One reason is that the noble Baroness, Lady Hooper, referred to past instructions which are in existence. They have not worked; they are not being obeyed. They might as well be non-existent. In the same way the noble Baroness talks of guidance coming out tomorrow, but that is different to rights being established on the face of the Bill. If they do not appear on the face of the Bill the disappointment of the people for whom we have been speaking will be extreme. MENCAP, RADAR, the National Schizophrenia Fellowship and the Association of Directors of Social Services will be bitterly disappointed. I cannot accept the so-called soothing remarks with regard to guidance.

The noble Baroness spoke about the named carer. That is all very well, but if something is put loud and clear in the White Paper, and then it is said that it is either not necessary or cannot be done, it becomes useless.

I take a very strong view about this. We have had the same situation on other occasions in connection with the White Paper. I must put the amendment to the House for its opinion.

9.12 p.m.

On Question, Whether the said amendment (No. 159) shall be agreed to?

Their Lordships divided: Contents, 37; Not-Contents, 42.

DIVISION NO. 4
CONTENTS
Airedale, L.	Graham of Edmonton, L.
Allen of Abbeydale, L.	Grantchester, L.
Carmichael of Kelvingrove,	Greenhill of Harrow, L.
L.	Hacking, L.
Carter, L.	Hatch of Lusby, L.
Darcy (de Knayth), B.	Hunter of Newington, L.
Dean of Beswick, L. [Teller.]	Kilmarnock, L.
Elliot of Harwood, B.	Kinloss, Ly.
Ennals, L.	Macaulay of Bragar, L.
Ewart-Biggs, B.	McFarlane of Llandaff, B
Faithfull, B.	McNair, L.
Falkender, B.	Masham of Ilton, B.
Falkland, V.	Mishcon, L.

Mottistone, L.	Saltoun of Abernethy, Ly
Pitt of Hampstead, L.	Seear, B.
Renton, L.	Seebohm, L. [Teller.]
Robson of Kiddington, B.	Swinfen, L.
Rochester, L.	Thurlow, L.
Russell, E.	Tordoff, L.

NOT-CONTENTS
Arran, E.	Glenarthur, L.
Balfour, E.	Gray of Contin, L.
Belstead, L.	Henley, L.
Blatch, B.	Hives, L.
Blyth, L.	Hooper, B.
Braye, B.	Long, V.
Brougham and Vaux, L.	Lyell, L.
Caithness, E.	McColl of Dulwich, L.
Carnegy of Lour, B.	Mancroft, L.
Carnock, L.	Morris, L.
Cavendish of Furness, L.	Mountevans, L.
Crathorne, L.	Oxfuird, V.
Cumberlege, B.	Rankeillour, L.
Davidson, V. [Teller.]	Reay, L.
Denham, L. [Teller.]	Sanderson of Bowden, L.
Denman, L.	Swinton, E.
Eccles of Moulton, B.	Thomas of Gwydir, L.
Eden of Winton, L.	Trumpington, B.
Elles, B.	Ullswater, V.
Ferrers, E.	Wade of Chorlton, L.
Fraser of Carmyllie, L.	Whitelaw, V.

Resolved in the negative, and amendment disagreed to accordingly.

9.20 p.m.

Lord Seebohm moved Amendment No. 159: Page 51, line 40, at end insert: ("(2A) In the case of those local authorities which are not housing authorities, the plan for the provision of community care services referred to in subsection (1) above shall, after consultation with local housing authorities, include details of how such housing authorities, whose area is within the area of the local authority, propose to meet the housing needs of the persons in their areas who are in need of community care services.").

The noble Lord said: My Lords, noble Lords will recollect that at Committee stage Members agreed to an amendment instructing local authorities which are also housing authorities to include in their community care plans details of the housing needs required to implement the community care plan. The proposals for implementing them are now in Clause 47(2).

That left in the air the question of the necessary powers concerning housing requirements where local authorities are not housing associations and housing authorities. Therefore, the amendment provides for similar details of plans after consultation has taken place with the appropriate housing authorities. I must say at this stage that there has been a most disastrous ruling. It was decided that most planning requirements should be removed from counties down to districts. That has produced a most disastrous effect.

The Redcliffe-Maud Commission, which considered local government reorganisation, made it absolutely clear that, in its view, housing and social services should be on the same tier. That was also clearly set out in the Seebohm Report. In my case, concerning the county of Hampshire, I wonder whether noble Lords realise that the director of social services in the county, instead of just walking across the corridor and thrashing things out with the director of housing, now has to co-ordinate with 15 districts and 15 directors of housing. It is going to be a terrible task.

The amendment I am putting forward this evening is designed to help the directors of social services in their tasks. We all know that housing has a welfare infrastructure. We must do everything we can to put on the face on the Bill the requirements necessary to bring housing and social services together. I believe I need not say more than that. We thrashed this out in connection with the amendment moved at Committee stage. Local authorities which are also housing authorities were instructed to make their plans with the housing authorities. The same must apply to counties, which are no longer housing authorities in many respects. I beg to move.

Lord Carter

My Lords, we supported from these Benches the amendment which the Committee accepted at the previous stage of the Bill. As the noble Lord, Lord Seebohm, has said, it is obvious that all authorities must be treated in the same way. If the Government intend to reject the amendment, I ask them how on earth the system will work if, where housing needs are concerned, all authorities are not treated in the same way as regards community care.

Baroness Hooper

My Lords, I cannot prejudge whether or not the amendment that your Lordships have already voted on, and to which the noble Lord, Lord Seebohm, referred, will find favour in another place. In any event, I cannot accept this amendment. The requirement to consult with housing authorities in respect of community care plans is in the Bill at Clause 47(3)(c). For that reason the noble Lord's amendment is unnecessary. What can sensibly and realistically be done in this part of our Bill, which concerns the powers and duties of local authorities in respect of community care functions, has been done.

We do not think it right to place a duty on housing authorities via provisions which are concerned with the social service functions of local authorities. My colleagues in the Department of the Environment are as concerned as we are to ensure that the housing dimension and, more importantly, the delivery of care services, are on board in community care planning. But we are not able to accept this amendment and I ask your Lordships to agree that Clause 47(3)(c), to which I have referred, coupled with our guidance on developing care plans in consultation with housing interests, is as far as we can and should go.

Lord Seebohm

My Lords, I do not propose to divide the House on the amendment tonight. I hope that the information which I gave on the strange effect between the Department of the Environment and the Department of Health has not been overlooked. I doubt whether the departments ever communicate with each other. That is what is so disturbing. They cannot possibly have realised the situation that they were creating at county level by divorcing housing from social services. That was quite absurd.

I very much hope that the noble Baroness will take the amendment away and think about it. I shall withdraw it now but may bring it back at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Ennals moved Amendment No. 160: Page 51, line 44, at end insert ("on such matters as appear to either authority to be appropriate, including the matters specified in subsection (3A) below").

The noble Lord said: My Lords, in view of what happened with the amendment before last, when the House was so evenly divided though the Government won, this amendment has become even more important. It concerns the relationship between health authorities and local authorities. The previous amendment touched on one aspect, although a crucially important aspect, of that relationship. It touched on whether notice should be given by health authorities to local authorities on the discharge of patients under certain categories as defined in that amendment. The fact that there was so much feeling in the House at this time of the evening shows the depth of concern. We know the depth of concern that exists among health authorities and local authorities and indeed among voluntary organisations and the public.

The Bill requires local authorities to consult relevant health authorities. It does not say what they will consult about. It lists no subjects on which there should be consultation. I suppose that consultation might be about whether the clocks in the two authorities were working correctly. There is no guidance on the issues on which consultation should take place. It gives the health authorities no rights to be consulted other than on matters identified by the local authority. That is not acceptable. Perhaps I may give a few examples of the kinds of issue which may be dealt with inadequately or not at all if they are not covered by regulations or guidance or allowed for by an amendment which gives to both health authorities and local authorities the right to raise issues for formal consultation.

One concerns the financial arrangements, which are to be subject to local government, and the future of joint financing. If it is to be wound down, how is it to be done with the minimum of disruption? At present £120 million is being spent. The future of dowries is another aspect, with payment by health authorities, often in perpetuity, for the transfer of patients from NHS to local authority facilities. Nursing homes are to be inspected and registered by district health authorities but care homes are to be inspected and registered by local authorities. A common standard needs to be applied. As local authorities will in certain circumstances pay for the care costs in nursing homes, it is vital that there should be close co-operation. Another area where agreement is needed are the circumstances in which the district health authorities will pay for places in nursing homes.

I shall give only one other example, although I could give many more. There is the still unresolved matter of hospital based social workers. I raised this matter in Committee, as did the noble Lord, Lord Winstanley. Since then at least one local authority—Camden—has been sending out distress signals. It cannot charge the DHA for the services and it has no power to charge other local authorities whose residents make extensive use of Camden's hospital based social workers. The role in the future of hospital-based social workers is something about which both sides will be concerned. In some places it will become an increasingly troublesome problem.

This amendment, which stands in my name and in the names of the noble Baronesses, Lady Faithfull and Lady Seear, is grouped with Amendments Nos. 161 and 194. We seek to list in Amendment No. 161 the issues on which there should be consultation by the two authorities. It is essential to put on the face of the Bill a requirement for this form of consultation, the more so since, in my view, the Government so unwisely and insensitively rejected the amendment on which we recently voted. I beg to move.

9.30 p.m.

Baroness Faithfull

My Lords, I rise to support the noble Lord, Lord Ennals, particularly on two points, although I do so on many others. Regarding the place of social workers, they are on the staff of the social services department but work in the hospitals. At the moment a number of authorities are cutting back on the social services because of local government expenditure. They have statutory duties to carry out under the various Children Acts and the Children and Young Persons Act. In order to carry those out, the authorities are withdrawing their social workers from child guidance clinics and hospitals. This is a disastrous state of affairs because the social workers in hospitals are the bridge between the hospital and the community. They are also the bridge between the doctors and the social workers in the community. Therefore it is essential that the position be clarified.

I suggested at the previous stage of the Bill that a rearrangement of the financial provisions should take piece. The health authority should pay half of the social workers' salaries and the social services should pay the other half. I adhere to that because they would then both have a vested interest in the social workers.

It almost goes without saying that the Bill cannot be successful unless there is a good relationship between the district health authority and the social services. One would expect that this went without saying, but sadly it does not. If it were to be on the face of the Bill then people would realise how necessary it was to have a good relationship, and a structured relationship with the two departments.

Lord Carter

My Lords, my noble friend Lord Ennals moved the amendment and I wish to bring to your Lordships' attention a case which illustrates extremely well the need for it. In the town where I live, Devizes, in Wiltshire, there is a geriatric hospital and a district hospital. The intention was to close the geriatric hospital and to rebuild the district hospital with geriatric beds. Because of the slump in the property market, they are not able to sell the site of the geriatric hospital in order to raise the money for the district hospital, so the whole proposal has been deferred.

Because of the crisis in funding occurring this year, there is a plan to close the geriatric hospital anyway, and of the 31 patients, nine are to move to the district hospital which is not equipped to receive them. The other 22 are to be decanted into the community. I wish to read a few lines from a letter from the district general manager of the Bath District Health Authority which exactly illustrates the problem with which the amendment is intended to deal. He writes: There is an assumption however in our strategy that we will be able to increase the community support. This is the problematical area given the shortage of revenue funds. I am not able to give an absolute assurance that if we do transfer the patients to Devizes Hospital at an earlier date than originally intended that we will at the same time be able to increase the numbers of community nurses". That is to look after the 22 old people who will be decanted into the community. The letter continues: Generally speaking there is a great deal of concern about the proposals in the Government's Caring for People White Paper. It is not at all clear where the resources are going to come from and it is unrealistic to expect Health Authorities to transfer significant money (indeed if any) to Social Services Departments to maintain people in the community. We are also concerned by the confusion regarding responsibility for assessing elderly people's needs. Caring for People seems to lay this clearly at the door of the Social Worker but a look at the general practitioners' new contract suggests that they are in charge of the primary care of their patients. On top of all this consultant geriatricians have been used to taking the lead in organising care for those patients referred to them". The responsibilities of general practitioners are referred to in the amendment. The letter continues: At present in the discussions which I have had with all these parties, very little sense of the best way forward has emerged". The letter provides a practical example of the kind of problem with which this amendment is intended to deal.

Baroness Blatch

My Lords, it is absolutely true that effective consultation will be the key to the success of the reforms. On that point there is no difference between what this amendment wants to achieve and what the Government are looking for.

We discussed community care planning in considerable detail during the Committee stage of this Bill. We then made the point that the Government view planning as one of the keystones of community care. Because of this the Government accepted an amendment in another place to include a list of appropriate bodies, including district health authorities, for local authorities to consult in drawing up plans. During the Committee stage of the Bill in this House we agreed to consider further an amendment which would add consultation with representatives of service users and their carers to that list. I hope that Amendment No. 160A to this effect will be accepted by this House later today.

Those amendments add to the framework of the consultation process. My concern about the amendment now before us is mainly that it goes into the realm of detail. It specifically sets the agenda. Local authorities are already required by the Bill to consult district health authorities. I cannot imagine that they would consult on matters which they considered inappropriate. I also believe it is inconceivable, given the scenarios as set out by the I noble Lord, Lord Carter, that effective and proper consultation would not be carried out. I believe that under the reforms the necessity to consult will be absolutely essential to the effective delivery of services.

The danger of listing in the Bill matters to be included in consultation is that if topics are not there they will be viewed as less important and omitted from the process.

Lord Ennals

My Lords, Amendment No. 161 states: (g) any other matter which either authority considers appropriate". Nothing is excluded therefore.

Baroness Blatch

My Lords, we have discussed on a number of occasions the difficulty of specifying some details and not others. That leads to the risk that people will interpret the items that are not there as not being for the agenda. Another risk is that undue prominence may be given to those items that are listed in the Bill. People may believe that those items that are not listed in the Bill are somehow or other less important. As I have said, local authorities are already required by the Bill to consult district health authorities.

I believe that these suggestions on the areas to be covered in consultation are all perfectly valid. However, I also believe that as suggestions—the amendment is framed so as to allow authorities discretion in discussing these items, as the noble Lord, Lord Ennals, just mentioned—they are better made in the context of guidance or advice on good practice. We do not believe it is appropriate to place them on the face of the Bill.

The amendment also proposes a new subsection (3C) which seems to intend to impose requirements on district health authorities. Whatever the merits of the suggestion, this cannot really be included in a clause whose major purpose is to place requirements on local authorities. Local authorities are already required to consult housing authorities and housing associations as part of the planning process. It is right that they should as the main body responsible for providing community care services. They are also required to consult with district health authorities. It will be their job to ensure that their care plans reflect agreements they have reached with both health authorities and housing agencies. I do not believe that adding a requirement for district health authorities also to consult on housing will improve the services available to clients. It seems rather an opportunity to add a further layer of bureaucracy which might hinder rather than help the already complex planning process. What is absolutely essential is that the practitioners and the professionals in local authorities and health authorities are the people who should be working in a productive way. They should not constitute talking shops which may stand in the way of and thwart practical progress which is about delivering services to the customer. I hope the noble Lord will therefore feel able to withdraw the amendment.

Lord Ennals

My Lords, T am grateful to the Minister for her reply, but my view has not changed at all. I do not believe that subsection (3C) of Amendment No. 161 is in any way out of place. It is about consultation; this is the National Health Service and Community Care Bill. The amendment includes the opportunity for the district health authority to be able to place items on the agenda: to satisfy itself that adequate provision, including housing provision, is available to persons discharged from hospital who are not long-stay patients". That is a reasonable requirement for a health authority. This is an amendment which, as we see, is moved by members of three parties in this House. It is perfectly reasonable to include items which might be raised by a health authority as well as items that might be raised by a local authority.

However, it is perfectly clear from all that I have heard this evening that the Minister is not likely to give way on anything. I have heard one or two assurances in connection with a previous amendment that the amendment was not necessary, but I have not been impressed on this occasion. However, I shall not press the matter to a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hooper moved Amendment No. 160A: Page 52, line 6, at end insert: ("(cc) such voluntary organisations as appear to the authority to represent the interests of persons who use or are likely to use any community care services within the area of the authority or the interests of private carers who, within that area, provide a substantial amount of care on a regular basis to persons who are living at home and for whom, in the exercise of their social services functions, the local authority have a power or duty to provide a service.").

The noble Baroness said: My Lords, in moving Amendment No. 160A I should also like to speak to Amendments Nos. 160B, 160BA, 160C, 160D and 163A. Noble Lords will recall that during the Committee stage of the Bill I agreed to take away and consider further the wording of an amendment proposed by the noble Baroness, Lady Seear. I am sorry to see that she is not in her usual place.

Lord Carter

My Lords, are Amendments Nos. 164 and 164A also included in this group?

Baroness Hooper

My Lords, yes. I am so sorry. Having considered the matter raised by the noble Baroness, Lady Seear, we have brought forward the amendments, which would incorporate into the Bill the requirement for local authorities to consult organisations representing service users, their families or carers. I explained previously that the Government fully support the principle behind the amendment, which now places the requirement on the face of the Bill.

I hope that Government Amendments Nos. 160A, 160C and 160D fully convey the spirit of the amendment proposed by the noble Lords, Lord Henderson of Brompton and Lord Allen of Abbeydale, in their Amendment No. 160B, which I therefore ask them to withdraw in favour of the government amendments. I commend them to the House and I beg to move.

Lord Allen of Abbeydale

My Lords, as my name is down to Amendment No. 160B and the noble Lord, Lord Henderson, cannot be here, perhaps I may say a word of appreciation to the Government for their proposal, which substantially meets the difficulties that we had in mind.

I have only one point to make. The amendment to which my name is attached mentions organisations of disabled people and organisations of carers, whereas the government amendment is limited to voluntary organisations representing the interests of those people. I have in mind, for example, the local branch of the British Council of Organisations of Disabled People or that of the Carers National Association. Can the noble Baroness say whether she reads the words which she has introduced as being wide enough to cover consultation not only with the voluntary organisations representing the interests of those persons but with the organisations consisting of those persons, who are perhaps in a better position to tender advice than some of the others?

Lord Renton

My Lords, this seems to be essentially a drafting point. The government amendment, welcome though it certainly is, is not so specific in relation to organisations of and for disabled people and the other people who are mentioned in Amendment No. 160B.

I hope that my noble friend will not try to conclude this matter tonight because she may well wish to think about the drafting of the amendment in the light of what has been said by the noble Lord, Lord Allen of Abbeydale. It is essentially a drafting matter. There is no harm in our delaying a little to try to get it right.

9.45 p.m.

Baroness Seear

My Lords, I apologise to the noble Baroness because I was not in my place when she moved the amendment and she referred to the amendment to which my name appears.

Like the noble Lord, Lord Allen of Abbeydale, I think that this is a step in the right direction, but it has perhaps not quite arrived. The point that I should like to query is the phrase: such voluntary organisations as appear to the authority". That phrase may be perfectly harmless, but it might mean that the more vociferous and perhaps more representative organisations would not be the ones that appeared to the authority to best represent the interests. We should have preferred it to be organisations which represent the interests, where they are the substantial body. I am sure that it is not the Government's intention to do that, but it would be possible for a somewhat tame organisation to be accepted as the one to be consulted, whereas the more vociferous and genuinely representative would not be included in the list.

Perhaps the noble Baroness will consider that matter again and follow what the noble Lord, Lord Allen of Abbeydale, said about getting this absolutely right. Perhaps that point could be taken into consideration if the noble Baroness looks at the amendment again, as I hope she will.

Lord Kilmarnock

My Lords, perhaps I may say a few words about Amendment No. 160BA, which has been grouped with Amendment No. 160A. It is very similar to Amendment No. 160B.

The representatives of consumers and carers play an invaluable role in alerting service providers to new health and social care needs and in demonstrating how existing systems of health and social care may need to be adapted to meet those needs. Knowing my interest, the noble Baroness will not be surprised to hear me produce as the most dramatic example of that the appearance of HIV and AIDS and the emergence of extremely articulate and energetic self help and community-based organisations to advocate on behalf of those infected and their carers in the case of that dreadful condition. Without the forceful representation by those organisations of the community care needs of people with HIV and AIDS and their carers, the development of provision for appropriate community care for that group would have been far slower than has been the case. In addition, much firsthand knowledge has been accumulated by those bodies and a great pool of expertise built up on those matters which it would be wrong to disregard in preparing plans and other actions under the Bill.

That takes me to the point made by the noble Baroness, Lady Seear. Although the general thrust of the Government's amendment is welcome, the phrase, as appears to the authority", somewhat diminishes the force of it. There is no absolute requirement in that phrase to consult the kind of bodies to which I have referred. Along with other noble Lords who have spoken, I therefore wonder whether the Government could not have another look at the phraseology before Third Reading. If that could be tidied up, I should be happy with the government amendment.

Lord Mottistone

My Lords, although I was not involved in the lead-up to the amendment and have no amendments tabled in my name, I am sure that Amendment No. 160A is just the sort of thing that the National Schizophrenia Fellowship would like. I applaud my noble friend for having introduced it.

Baroness Carnegy of Lour

My Lords, noble Lords worried by the vagueness of the phrase "appear to the authority" should not worry. If you are on a local authority and you consult organisations representing people, you must decide between all the many organisations and the many people who claim to be the right people to consult. You cannot consult everyone. Like my noble friend Lord Mottistone, I should have thought that that was the right way to put it. We often use the phrase in legislation. It is for the authority to decide. We all know that it will be very difficult to decide who represents the users. We have to trust the authorities to do it. It will be a very difficult operation. Indeed, an organisation which represents carers will not be an easy one to identify. I expect that there will be several but one cannot include everybody. I should have thought that this amendment was right from the local authorities' point of view and that we should go along with it.

Baroness Masham of Ilton

My Lords, I thought that the whole point of the community charge having to be paid by disabled people was that they would then be able to decide whether they were getting the kind of services that they wanted from their local authorities. I understood that that was the argument when we debated this matter in your Lordships' House.

Now there are organisations of disabled people that seem to have been left out. Some of the organisations for the disabled are exceedingly annoyed about it. It has perhaps not been done deliberately. However, perhaps at Third Reading Amendment No. 160B could be incorporated with Amendment No. 160A, which would then make them all happy.

Lord Carter

My Lords, as my name is attached to Amendment No. 160B, perhaps I may say a few words on this point. We are grateful to the Government for making an attempt to meet our concerns and to the Minister for the useful meeting that we had the other day in order to discuss this matter. A problem that the Government should address, which was touched on by the noble Lord, Lord Allen of Abbeydale, is the distinction between organisations of and organisations for the disabled. Let me give a simple example. The National Federation of the Blind is an organisation of the blind. The Royal National Institute for the Blind is an organisation for the blind.

I shall pick up a point made by the noble Baroness, Lady Seear. The vast majority of government funding goes into organisations which are for the disabled rather than of the disabled. There is an important point about the way in which local authorities will look to organisations; whether they will take advice from those vociferous organisations that are under-funded by the Government and which consist of disabled people compared with the other organisations that are substantially funded by Government which are for disabled people. That is an important point which the Government should be prepared to take on board.

There is also another problem raised by the phrase "a substantial amount of care". I was a little surprised that the noble Lord, Lord Mottistone, should approve the amendment. It seems that a lot of carers for schizophrenics would be left out by the words of the amendment: a substantial amount of care on a regular basis". The Government have gone a considerable way to meet us but I think that there is still some redrafting to be done.

Baroness Hooper

My Lords, I am grateful for the more or less general welcome given to these government amendments. But I have to say that I am amazed; if organisations consisting of disabled people are not able to represent the interests of disabled people, then who can do so? In my view they are the people best able to represent disabled interests. Therefore, the government amendment includes groups of disabled people as well as other groups interested in that area.

With regard to the point raised by the noble Baroness, Lady Seear, there is certainly nothing sinister about giving local authorities a certain choice in this matter. In fact, in the interests of consistency, perhaps the noble Baroness would care to look at Clause 47(3)(d) on page 52 of the Bill. The wording of this government amendment is consistent with the wording of that paragraph, which relates to housing and community care services. As my noble friend Lady Carnegy pointed out, it is important to give local authorities a certain authority in this matter. I have no doubt that the vociferous groups to which the noble Baroness referred will make their views heard whether or not they are invited so to do.

On Question, amendment agreed to.

[Amendments Nos. 160B to 161 not moved.]

Baroness Hooper moved Amendments Nos. 160C and 160D: Page 52, line 14, leave out ("and"). Page 52, line 23, at end insert ("and private carer" means a person who is not employed to provide the care in question by any body in the exercise of its functions under any enactment.").

The noble Baroness said: My Lords, with the leave of the House, I beg to move the amendments en bloc.

On Question, amendments agreed to.

Lord Carter moved Amendment No. 162: After Clause 47, insert the following new clause: ("Research and grants for community care in rural areas .—(1) The Secretary of State shall from time to time conduct research into the extent to which the costs of local authority provision of community care services are higher in rural areas than elsewhere. (2) If the Secretary of State is satisfied that—

1. (a) the results of the research conducted under subsection (1) above indicate that the costs of providing community care services in rural areas are substantially higher than they are elsewhere; and
2. (b) such higher costs are not otherwise met by grants paid under Part V of the Local Government Finance Act 1988,

he shall make grants to local authorities under subsection (3) below. (3) Subject to subsection (2) above, the Secretary of State shall make grants out of money provided by Parliament to defray such additional costs of provision of community care services by local authorities in rural areas as are identified by the research conducted under subsection (1) above. (4) The Secretary of State may by order made by statutory instrument prescribe a definition of "rural area" for the purposes of this section.").

The noble Lord said: My Lords, an amendment was moved at Committee stage which the Committee did not accept. It was to obtain extra ring-fenced funding for community care requirements in rural areas and to meet the extra costs involved.

This is a more modest amendment. It requires the Secretary of State to research costs involved in rural areas and then to make direct grants to offset any extra costs that are discovered. The Secretary of State would be required to make grants only if the costs were substantial and were not catered for in the general grant system—that is, accounted for in the standard spending assessment for social services.

The argument on the extra cost for providing community care in rural areas is strong. There are the high costs, the lack of local services, unmet needs, poor support for voluntary action, and the poor co-ordination between different local authorities.

I do not wish to take up the time of the House to any extent this evening. A substantial report has been commissioned by the NCVO entitled Counting the Rural Cost: the Case for a Rural Premium. It is a weighty and well researched report. It concludes that costs are higher in rural areas for the following reasons: first, lack of economies of scale; secondly, additional travel costs; thirdly, additional telecommunication costs; fourthly, the high level of unproductive time; fifthly, the extended timescale and slow pace of development work; sixthly, the extra costs of providing mobile and outreach services; and, seventhly, the extra costs of accessing training and other support.

It is clear that there is extra cost in the task of providing community care in rural areas. I shall be interested to know whether the Government propose to comment on the report if they have seen it. For the reasons stated in the report, and for those discussed at Committee stage, we feel that the Government should be required at least to conduct research to satisfy themselves that the standard spending assessment takes sufficient account of those extra costs which are so well borne out in the NCVO report. Perhaps the Government will tell me whether that is the assessment on which they rely. I beg to move.

Baroness Faithfull

My Lords, I support the amendment. The noble Lord, Lord Hylton, who is unable to be here today, asked me to support the amendment on his behalf.

Country areas will obviously have expenses that town areas do not have. If someone has to be transported to a hospital or clinic, long distances are involved. The same applies if one considers the Highlands of Scotland or remote parts of Wales. I was taking to various people in Hereford recently. Hereford covers a large rural area. Those people do not have local clinics. They have long distances to travel to attend an ordinary clinic, let alone a hospital. Such services as meals-on-wheels and home helps are extraordinary difficult to provide.

The amendment does not provide that more money should be given to rural areas but provides that there should be monitoring process to ascertain whether that is so. When I was talking to a doctor who covers a wide rural area, the importance of that was brought home to me. She compared her mileage with that of a colleague in the city. Her mileage was five times greater than that of her colleague. That is only one example. We should monitor and conduct research into the matter so that people in rural areas do not suffer.

I am not a farmer but I wish to speak on behalf of the farmers. I am sure that the noble Lord, Lord Carter, is able to do so better than I. Many are worries that so many people are leaving the land and moving into the cities. One important reason for that is for them to be nearer to the facilities which are not available in rural areas.

10 p.m.

Lord Allen of Abbeydale

My Lords, I was glad to add my name to the amendment and I wish to emphasise a point that has been made. The amendment does not state that the requirements of rural areas necessarily cost substantially more. We believe that they do, but the commitment set out in the amendment will arise only if the Government's reasearch shows that the extra cost is substantial and not covered by the relevant standard spending assesssment. Incidentally, I am under the impression that at present that assessment does not take account of sparsity of population. However, that is a consideration allowed for in certain formulae adopted for Scotland and Wales.

That there are grounds for believing that extra costs are involved is borne out by the report referred to by the noble Lord, Lord Carter. The NCVO has overcome its printing difficulties and has produced the report today. It suggests that the factors that have been mentioned—such as the lack of economies of scale, travel costs and the scarcity of volunteers—make it more expensive to ensure that the elderly and disabled in rural areas are not condemned to an existence more miserable than that of such people in the towns. However, it is fair to say that the main conclusion of the report is the paucity of reliable information and the need for further research. The amendment is aimed at that, with action to follow only if the conditions set out in it are met.

Lady Kinloss

My Lords, I wish to support the amendment. Rural communities are characterised by small numbers of people scattered over a wide area. Costs are high because of the large distances involved in travelling into and out of rural areas and in moving from one location to the next. In North Yorkshire distances are great and there can be difficulties with snow and ice, particularly black ice. That must add to the costs and risks of those travelling; for example, the distance that a district nurse might have to travel. As was pointed out by the noble Baroness, Lady Faithfull, the situation is more difficult for those providing meals-on-wheels and home help.

Today the NCVO published its report, Counting the Rural Cost: The Case for a Rural Premium. The report prepared by a consultant is a review of the existing material. It shows that in general providing services to rural areas is more expensive than providing them elsewhere. In her reply to Amendment No. 159, the noble Baroness, Lady Hooper, said that she had visited a new community centre in Huddersfield. That is good news indeed. But she is aware that Huddersfield is an urban area; and does she not agree that to run such a community centre in a rural area necessarily costs a great deal more? Therefore there is something to be said, in appropriate cases, for the Secretary of State to make grants if the costs are substantial and are not catered for in a general grants system that is accounted for in the standard spending assessment for social services.

Lord Swinfen

My Lords, there is considerable merit in the idea behind this amendment; but, so far as I can see, there is one major difficulty. Is there a legal definition of a rural area? People's ideas of what is a rural area vary considerably. Are we talking about the wide-open spaces of Caithness or about what is rapidly becoming Greater Suburbia, East Kent?

Baroness Carnegy of Lour

My Lords, in talking about this, perhaps we are forgetting the way local government is funded at the moment, and the way the revenue support grant is worked out. All these facts about the extra costs in rural areas are very well known to local government and to central government, and the revenue support grant negotiations are all about that—the needs element in the whole thing.

Ring fencing is going to make this more difficult. Your Lordships will know that I am very worried about ring fencing. It is going to make the problem very much more difficult. But even with ring fencing, the principles which are used in negotiations when the grants are settled take account of all these things. It is not true to say straightforwardly that rural areas are more expensive. In some respects social service provision is more expensive in cities because of deprivation and so on.

I am sure that all the facts your Lordships have elucidated are true, and economy of scale is not there in small homes, just as it is not there in small schools. These things are all well known, and I would have thought that arriving at a figure is not difficult under the present system. The research is really done by the local authority: they know what these things cost. The Government hold discussions with them and I am sure there are people who can look at the figures and check whether they are right. It is unnecessary to say on the face of the Bill that what has always happened and what will continue to happen in a wider sphere has to be included.

Lord Henley

My Lords, perhaps I may first briefly respond to my noble friend Lord Swinfen, who asked for a definition of "rural area". I am afraid I cannot help him. I can refer him to a remark that I made earlier this afternoon to my noble friend Lord Boyd-Carpenter, and say that I suspect it would create yet more work for the lawyers; but I might be wrong about that.

My noble friend Lady Faithfull asked whether we intended to monitor—

Lord Allen of Abbeydale

My Lords, if the noble Lord is about to leave behind the definition of "rural area", is it not true that the Rural Development Commission have a definition of rural area?

Lord Henley

My Lords, I have to admit to the noble Lord that I do not know the answer to that question. If they do, all well and good—and the noble Lord, Lord Carter, assures me that they do. I thought that possibly we might be creating a little more work for my learned friends but perhaps we are not, as it has been defined.

My noble friend Lady Faithfull asked whether we intended to monitor what was going on and to conduct or commission research into what was necessary. I can assure her that we shall monitor and commission research into all aspects of community care. This will clearly involve assessing whether the costs being incurred are greater in one local authority's area rather than another, whether they are rural or urban. We recognise that obviously some aspects of care may cost more in the inner cities because of differing social conditions there. I would agree that there may be additional costs arising in rural areas, with widespread populations, which often receive rather less attention.

I have a local authority background. I served on my own county council, which was in a rural area. I served on the social services committee and my own county council division, representing a mere 4.000 electors, covering some 100 square miles. I know about the problems of rural areas, and I know that their problems are different from those of urban areas. All those factors have to be taken into account. We are alive to that issue. If it proves to be a problem, it will be best solved by looking at our distribution mechanisms through the revenue support grant rather than by small additional payments on the side.

The standard spending assessment for personal social services is being reconsidered in the light of the new responsibilities. It is being discussed with the local authority associations. Having said that, at present I can see no case for highlighting on the face of the Bill one individual aspect of research and, equally, no case for separate equalisation grants. Having said that, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Carter

My Lords, that is the answer which we expected from the Government. In passing, it is a fact that 53 per cent. of the homeless are from outside the metropolitan areas. A substantial number are in rural areas. There is a definition of "rural area" which we discussed during the passage of the Housing Bill when we were discussing the definition of rural housing. Therefore, there is a definition on the statute book.

I was impressed by the touching faith in the standard spending assessment. I do not believe that Wandsworth and Westminster are rural areas but they seem to have done extremely well out of the standard spending assessment without any research. That just goes to show, does it not?

Of course, other departments provide extra money for rural areas; for example, the Department of the Environment in respect of some local authority services; indeed, the Department of Health in respect of community health services, medical practices and pharmacies; the Post Office in respect of subsidy for the network of rural sub-post offices, and so on. Therefore, in a number of departments there is a recognition of the extra costs.

We are disappointed that the Minister cannot accept this amendment. We hope that his faith in the review of the standard spending assessment will be borne out and that the extra costs which we know exist in rural areas will be compensated for. However, at this stage of the Bill, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.10 p.m.

Baroness Faithfull moved Amendment No. 163:

After Clause 47, insert the following new clause:

("Duty to meet needs of chronically ill

In exercising their functions under Part III and Part IV of this Act, local authorities shall take special measures to attend to the needs of any person who is suffering from grave chronic illness and who, by reason of age, illness or disability, is living in conditions which in the opinion of a court give rise to an immediate and serious risk to the life and safety of that person.").

The noble Baroness said: My Lords, I speak to this amendment with the assistance of an outstanding briefing from Age Concern, the Spastics Society and an organisation called SENSE which deals with, helps and gives assistance to deaf blind people.

I believe that I owe an apology to the Minister because I did not make myself clear at the last stage of the Bill when I moved this amendment. It is not an amendment designed to take over from people their lives. I believe that last time I gave the impression that if a very vulnerable person's life was at risk, that life should be taken over.

The Bill deals with people who are vulnerable whose lives are at risk and those who appear to be unable to help themselves. We all know about the case of Beverley Lewis in Gloucestershire. A mentally handicapped girl died. She had been looked after by her mentally handicapped mother, who died. The girl was in the vulnerable position of being unable to look after herself and unable to seek help from anybody else.

This amendment is not intended to take away people' s wishes regarding the future. If someone wishes to have no help, not to co-operate and not to allow anyone into their home, their wishes should not be transgressed. However, my experience and the experience of those three organisations is that many vulnerable people need and want help but do not know how to ask for it or obtain it. Under the law at present it is not possible to offer help to those people even if it is known that they need it.

The amendment is designed to safeguard the very vulnerable who need help; those who, if they could express themselves, want help. It is to enable them to be given help. It is not to remove them from their homes but to give them supportive services and only remove them from their homes if they ultimately agree.

Some people do not want help and wish to die. Who are we to stand in the way if that is the case? However, there are many others whose life expectancy would be extended and their lives enriched if they could be helped. The amendment seeks to help those vulnerable people who are unable to ask for help and to enable social workers to be able to offer that help under the Bill. I beg to move.

10.15 p.m.

Lord McColl of Dulwich

My Lords, in spite of the reassurance of my noble friend Lady Faithfull, it seems to me that we need the amendment only if we wish to force our views upon those vulnerable disabled people.

Over the years I have been immensely impressed with how wrong one can be in an assessment of some disabled people. As often happens, a patient may go for treatment for an acute condition. After the treatment he is seized upon by one or two well-meaning people who decide that he is no longer fit to live on his own. The gentleman I have in mind was very angry about the interference, but the two ladies insisted on making a home visit. He said tO them, "Now we have arrived back home, let me show you how able I am to look after myself. Sit down and I will make you a cup of tea". He then went into the kitchen and put into the teapot three heaped teaspoonsful of rat poison!

I have always been impressed with how able some people are. We must allow them the freedom to choose not to have the benefits of those who are insisting on helping them.

Baroness Hooper

My Lords, this issue was discussed at Committee stage. I agree with my noble friend that the main problem with Section 47 of the National Assistance Act 1948 is that there is no interim action; no halfway house. Section 47 provides only for removal. That may seem to be a limited provision, but there are good reasons why it should be so.

In moving the amendment my noble friend said that it is not her intention to force people to accept help if they do not want it. She clearly therefore does not wish to infringe civil liberties. I understand that, but there are still difficulties.

A person in the situation that she described, who is perhaps not compos mentis—for want of a better expression—and able to judge whether help is needed, is covered by other provisions so that care may be taken of them without the need for the amendment. Furthermore, in the event of somebody being seriously disturbed, the Mental Health Act 1983 deals with compulsory orders in the hospital. If a person is comatose, that person can be removed to a hospital under the powers already contained in Section 47. However, we are agreed that we are trying to deal with a situation that those powers do not cover.

In any event, the wording of the amendment could cause some difficulty. The reference to "special measures", for example, would need definition. It contains none of the protections about medical evidence being necessary and for an appeals procedure that are built into Section 47. This is a difficult area and I understand the concerns, but important issues of personal freedom are at stake and we would run into more difficulties than we had bargained for if we changed the present provision which caters for situations where matters are so bad that something has to be done. Therefore, I hope that my noble friend is persuaded not to press her amendment.

Lord Carter

My Lords, before the noble Baroness sits down, do not the Government accept that it would be better if community services were able to get in earlier instead of having to wait until the people at risk are in such a state that the only option is to put them into institutional care under Section 47? If the services are able to get in earlier they can provide the services in the home and keep the person at home, which is the object of the Bill.

Baroness Hooper

Yes, my Lords, and that can be done by agreement. Care can be taken of a person in the home in the vast majority of cases. However, there are other cases where there is a danger that civil liberties may be infringed. A person may require entry in order to carry out domiciliary provisions or something of that sort, but the recipient of that care may not be agreeable and there could be difficult and damaging scenes. I am sure that no one wants that. As my noble friend said, it is not her intention to force services on people.

The point is that where there is real need there is provision. This amendment would have the effect of forcing people against their will to accept services. Therefore, on balance I think the amendment would do more harm than good.

Baroness Faithfull

My Lords, I thank the Minister for that reply. There is a proportion of people who want help but if they are deaf blind they do not know where to go for it and do not even know that help is available. Such people have a right to expect or to be offered help, which they may or may not accept.

I know that there are some people who would say that they do not want help. Taking up the point made by my noble friend Lord McColl, I am sorry that the social worker forced help on the person concerned. My experience these days is that if anyone does not want help they are only too thankful to say, "Thank goodness, I do not have to pay for a home visit". Therefore, the case cited by my noble friend is most unusual.

From the point of view of compassion and of duty we should be able to offer domiciliary help to anyone who cannot apply for it. If it is turned down, so be it, but it should be possible to offer it. I mention again the girl who died, Beverley Lewis, in Gloucestershire. If she had been offered help she would not have died. There was no need for her to die. She was perfectly fit when her mother was alive but she was mentally handicapped and did not ask for help and did not know how to get it.

Having said that, if my noble friend the Minister feels that the wording is not right then at this stage I shall withdraw my amendment to reconsider the matter and bring it back at the next stage of the Bill.

Amendment, by leave, withdrawn.

Clause 53 [Local authority plans for community care services]:

Lord Sanderson of Bowden moved Amendment No. 163A: Page 57, line 30, at end insert: ("(ba) such voluntary organisations as appear to the authority to represent the interests of persons who use or are likely to use any community care services within the area of the authority or the interests of private carers who, within that area, provide a substantial amount of care on a regular basis to persons who are living at home and for whom, in the exercise of their functions under this Act or any of the enactments mentioned in section 2(2) of this Act, the local authority have a power or a duty to provide, or to secure the provision of, a service.").

On Question, amendment agreed to.

[Amendment No. 164 not moved.]

Lord Sanderson of Bowden moved Amendment No. 164A: Page 57, line 44, at end insert ("and private carer" means a person who is not employed to provide the care in question by any body in the exercise of its functions under any enactment.").

The noble Lord said: My Lords, this amendment has already been spoken to. I beg to move.

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 164B: Page 57, leave out from the beginning of line 45 to the end of line 12 on page 58 and insert: ("(1) Subject to the provisions of this section, the Secretary of State may by order require local authorities to establish a procedure whereby a person, or anyone acting on his behalf, may make representations (including complaints) in relation to the authority's discharge of, or failure to discharge, any of their functions under this Act, or any of the enactments referred to in section 2(2) of this Act, in respect of that person. (1A) For the purposes of subsection (1) of this section, "person" means any person for whom the local authority have a power or a duty to provide, or to secure the provision of, a service, and whose need or possible need for such a service has (by whatever means) come to the attention of the authority.").

The noble Lord said: My Lords, in moving this amendment, I shall speak to Amendments Nos. 164C, 164D and 164E; and Amendments Nos. 183A and 204B which are consequential. Grouped with them is Amendment No. 165 in the name of the noble Lord, Lord Carmichael.

We have sought to provide the power in Clause 53 for the Secretary of State to make an order providing for the establishment of local authority complaints procedures in the social work context because of concern expressed in another place. I think I can say that our proposals were generally welcomed at the Committee stage in this House.

However, the noble Lord, Lord Carmichael, raised a question about the ability of people to complain or make representations during an assessment; that is, before services were actually being provided by the local authority. He was also concerned that there should be no bar to organisations making representations on behalf of people.

In the light of these concerns we looked again at the clause and have concluded that the drafting could indeed be simplified and improved. In doing so, we have made clear that the right to make a complaint extends to all people for whom the local authority may have a power or be under a duty to provide a service under the Act. This right extends not only to the way the authority discharges its functions but also to a right to make representations about the authority's failure to discharge its functions. Functions of course include the duty to carry out assessments for people seen to be in possible need of community care services.

The clause as now drafted thus takes in the full range of persons who are receiving, or could receive, a service from the local authority. The specific mention of carers as persons who can make representations on behalf of the persons they care for is no longer necessary because any complaint can be on behalf of such a person.

I can assure your Lordships that we have looked closely at the question of organisations being able to act on a person's behalf. There is no doubt that the provision as drafted allows for this. It states that representations can be made by a person or anyone "acting on his behalf". "Anyone" includes an organisation. To attempt to include specific reference to organisations might in the event be less than helpful. It could raise difficulties of definition and would add nothing to the sense of the clause.

Though the noble Lord, Lord Carmichael, has not spoken to Amendment No. 165, I assume that he wishes to probe further the point which he raised so helpfully at Committee. I hope that I have been able to assure him that assessment is covered by the complaints procedure, because assessment is a function of the local authority. I am grateful for the constructive interest which he has taken in this subject, and I hope that he will be able to see what the Government have done in response, when the time comes.

Amendment No. 183A, in the name of my noble friend, does the same as Scottish Amendments Nos. 164B to 164E. Its wording is different, reflecting the approach taken in the Local Authority Social Services Act 1970, into which Clause 51 inserts it. But it incorporates all the important points, including the reference to "functions"—thus covering the assessment stage—and to, anyone acting on his behalf", which covers carers and voluntary and other organisations. Amendment No. 205A is a technical amendment, adding a mention of the new complaints procedure to the list of functions of local authority social services committees in England and Wales. I repeat my thanks to the noble Lord, Lord Carmichael. I beg to move.

10.30 p.m.

Lord Carmichael of Kelvingrove

My Lords, I am grateful to the Minister for writing to me and for enclosing a copy of his amendment. At this time of night, when he and I have been waiting here for so long to deal with the amendments relating to Scotland, I feel a wee bit like timpani drums in a symphony orchestra—two notes at the end of the movement. In the meantime, I beg leave to withdraw the amendment.

Baroness Seear

My Lords, the Minister wishes to omit the word "carer". Is that only in connection with complaints made about the person being cared for? I am extremely anxious to make sure that the rights of carers as carers, as distinct from carers as people who are acting on behalf of the cared for person, are adequately safeguarded and to ensure that they can make complaints on their own behalf as it were. The assumption that carers have no rights and interests of their own as distinct from their interest in the person they are caring for is one about which I am much concerned and hope will he adequately covered in the Bill. By removing the word "carer", is the Minister in any way diminishing their ability to make complaints on their own behalf about the way the procedures and the plans are affecting them as well as the people they care for?

Lord Sanderson of Bowden

My Lords, with the leave of the House, we are dealing with the person who is in need of assessment and with the representations that can be made by anyone on their behalf. As for the carers themselves, that concerns a different issue from the amendments before us. I shall see whether this is the correct assessment. Carers, I understand, can have assessment on their own behalf. There is therefore no diminution of their ability to complain. But I think it is only fair to say that I shall look carefully at what the noble Baroness has said. The purport of these amendments is to deal with those who are being assessed and the ability of their representatives to complain.

Baroness Seear

My Lords, with the leave of the House, I thank the Minister for that response. It is an important point although it may be covered elsewhere. I wanted to make sure that it was not going to default in the course of the changes that were proposed.

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendments Nos. 164C to 164E: Page 58, line 13, leave out ("and any such order") and insert— ("(1B) An order under subsection (1) of this section"). Page 58, line 28, at end insert ("and"). Page 58, line 32, leave out from ("1986;") to end of line 36.

On Question, amendments agreed to

[Amendment No. 165 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 166:

After Clause 53, insert the following new clause:

("Health Board Plans

.—(1) After Section 13 of the National Health Service (Scotland) Act 1978 there shall be inserted the following section—

Health Board Plans for Community Services

13A.—(1) Within such period after the day appointed for the coming into force of this section as the Secretary of State shall direct, and in accordance with the provisions of this section, each Health Board shall prepare and publish a plan for the provision of health care for the users of community care services in their area.

(2) Each Health Board shall from time to time review any plan prepared by them under subsection (1) above, and shall, in the light of any review, prepare and publish—

1. (a) any modifications to the plan under review; or
2. (b) if the case requires, a new plan.

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

1. (a) any local authority having responsibilities under Part II of the Social Work (Scotland) Act 1968 in their area;
515
2. (b) insofar as the plan or, as the case may be, the review may affect or be affected by the provision or availability of housing, every district or island council in the area of the board;
3. (c) such voluntary housing agencies and other bodies as appear to the authority to provide housing or community care services in their area;
4. (d) such voluntary organisations as are representative of the users of community care services and their families and informal carers in the area of the board; and
5. (e) such other persons as the Secretary of State may direct.").

The noble Lord said: My Lords, in view of what is happening to the health service in Scotland we consider this to be an important amendment. Its purpose is to make health board plans public and to require consultation in their preparation. The Government's implementation document Community Care Planning: A Review of Past Experience and Future Imperatives, and the Scottish chapter of Caring for People make it clear that local authorities are not being placed in the lead role for community care as a whole. Health authorities will still be responsible for planning all those elements of community care which the NHS currently provides. That is stated on page 43 of the document. It also emphasises that arrangements for ensuring the compatibility of health and local authority plans will be imperative. That is stated on page 27 of the document. The new clause seeks to achieve this point.

The Government's proposed arrangements for health board plans in Scotland fall short of this ideal in two main respects. First, while local authority plans must be public, there is no equivalent requirement for health board community care plans. This defect is peculiar to Scotland, since the English sector of the White Paper states in paragraph 5.13 that English health authority plans will be public and, Health authorities will be accountable for ensuring the provision of the services to which these plans commit them". An explanation of the different treatment in Scotland is obviously called for.

Secondly, health board plans will be drawn up in isolation whereas local authorities will be required to consult widely with other bodies involved in community care. Also, health board plans will not be specific to community care but will be part of the general accountability review. Given the importance of health board plans in the community care framework, it is surely vital that health boards should also consult other bodies when drawing up plans. If this is done, it is far more likely that health board and local authority plans will start from similar assumptions, which will make it easier for the planning agreements between health boards and local authorities proposed by the Government to be reached.

I feel that, if the Government reject the clause on the grounds that it is unnecessary given the Secretary of State's general powers to direct health boards, we need an assurance that such directions will require health boards to make plans public—as, I stress, will happen in England—and also to consult widely. I beg to move.

Lord Sanderson of Bowden

My Lords, we debated a similar amendment at the Committee stage and I thought that I had been able to make it clear then that the amendment was unnecessary. However, I shall play my notes on the timpani at the end of the symphony and see whether I can ring true this time!

In Committee, the noble Lord pointed out that while there was explicit provision in the Bill for community care plans to be made by local authorities, there was no such provision for health boards. In this case it is necessary to look not only at the Bill but also at the White Paper, Caring for People, which makes very clear our intention that there should be separate health and local authority community care plans and full collaboration between all relevant agencies in planning for community care services.

The noble Lord asked whether these would be public documents just as the English ones are. This is not done in isolation: consultations will take place with others concerned—notably of course the local authorities, who have the lead role. Health boards will, I can confirm, be required to draw up their own community care plans in agreement with local authorities and other relevant bodies.

Perhaps I did not explain clearly enough in Committee why we do not need primary legislation to provide for health board community care plans as we have done for local authority plans. The difference in approach is because the Secretary of State stands in a quite different relationship to health boards and to local authorities. Basically, health boards are accountable to the Secretary of State, while local authorities are accountable to their electorates. This means that primary legislation must sometimes be more prescriptive for local authorities than for health boards. The Secretary of State gets health boards to do many tasks simply by non-statutory administrative means. So our proposals for obtaining health board community care plans are entirely in line with existing procedures. A circular will be sent to health boards in September or October commissioning them to prepare community care plans, probably (like local authorities) annually. They will cover the same kind of ground as the local authority plans and the two sets of plans will be compatible.

In Committee the noble Lord said he was concerned about what would happen if there were a difference of opinion. I accept that this is a possibility, but it is one that could arise even if health boards were required by law to produce community care plans. I would expect that if such a disagreement arose, the authorities would probably be able to sort it out between themselves. However, if the problem persisted, we have redress. My right honourable friend the Secretary of State has the power to intervene. He can use his existing powers under Section 2 of the 1978 Act or, depending on the circumstances, he can issue directions to the local authority under the powers provided under Clause 52 of this Bill or to both the local authority and the health board.

In conclusion, I assure the noble Lord that health boards as well as local authorities will draw up community care plans and boards will receive the necessary guidance on this in due course. But that guidance does not need to be backed up by primary legislation. I hope the explanation is now clear to the noble Lord.

Lord Carmichael of Kelvingrove

My Lords, while I accept the good will and good intentions of the Minister, he must be aware that in Scotland there is a fair amount of unease about the apparent secrecy of health boards' plans concerning almost everything that they undertake. As the Minister will be aware, that unease is particularly great in parts of the west of Scotland.

I do not for a minute doubt the Minister's sincerity when he says there will be full consultation, but I still want to know at what point the plans of the respective bodies will be published separately before they are issued in one document. As I understand it, the local authority plans will be made known. I have to accept the Minister's point of view, but there is still a great deal of unease about this matter.

Lord Sanderson of Bowden

My Lords, with the leave of the House, I intervene and I apologise for so doing. I wish to make a further point as regards a comparison with the English plans. We are not talking about glossy documents being on sale on every newsstand. However, they will be publicly available, like most of the papers discussed at health board meetings.

Lord Carmichael of Kelvingrove

My Lords, that is an advantage as we are always a little worried when this Government produce glossy documents. Having said that and having taken on board what the Minister has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker (Lord Grantchester)

My Lords, I now call Amendment No. 167. If Amendment No. 167 is agreed to, I cannot call Amendment No. 167A on grounds of pre-emption.

Clause 48 [Assessment of needs for community care services]:

Lord Allen of Abbeydale moved Amendment No. 167: Page 52, leave out lines 24 to 26 and insert: ("(1) On request by any person, a local authority shall within 72 hours of receiving that request make a determination as to—

1. (a) whether that person is a person for whom they may provide or arrange for the provision of any community care services, and
2. (b) whether that person's request for a determination and assessment is unreasonable, vexatious or obviously without foundation in any need for community care services,

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

1. (a) the person is a person for whom they may provide or arrange for the provision of any community care services, and
518
2. (b) the person's request for a determination and assessment is neither unreasonable, vexatious nor obviously without foundation in any need for community care services,

or where it appears to a local authority to be appropriate to do so, the authority within a reasonable period of time—").

The noble Lord said: My Lords, I am sure that the Government have been hoping that before we concluded our business for the day they would come across some amendment which they could accept, at any rate in principle, as a magnanimous gesture. Here is a suitable candidate. The amendment seeks to clarify the provisions of the Bill as regards procedure for assessments and the rights in this context of users of community services. The system of assessment is a vital part of the community care proposals and has been described as the gateway to community care. Unfortunately the Bill is lacking in clarity as to the precise route to this gateway. Clause 48 states that local authorities have a duty to carry out an assessment where it appears to them that an individual is someone for whom they may provide community care services and that the individual may be in need of such services.

However, there is no provision as regards how a local authority becomes aware of a person's possible needs. Neither is there provision about carrying out the kind of pre-assessment to which the government spokesman referred at an earlier stage. There is no provision entitling the individual or his representative to take the initiative, unlike the position of the disabled under the 1986 Act.

I entirely accept that there should be no unrestricted right to assessment on request, but it seems to me that the Government's fears could be met and the obscurities removed by a provision on the lines of the amendment. It envisages a two-stage procedure. In the first stage the local authority would be under a duty to come to a quick decision—it is suggested within three days, but I am not wedded to that particular time limit—on whether the individual might be eligible and on whether the application is unreasonable or vexatious. Only if both tests are met does the local authority proceed to the second stage of carrying out a full assessment.

It seems to me that such a provision would meet the fears that the Government expressed at Committee stage, if I understood them correctly, and, following the precedent of the 1986 Act, would make clearer the rights of the individual—a matter on which the Bill in its present form is regrettably silent. I beg to move.

10.45 p.m.

Lord Mottistone

My Lords, I support the amendment, as I supported its predecessor, Amendment No. 113BE, in Committee. It seems rather strange that, without the amendment, the Bill represents a step backwards because the services can only be provided if it appears to the local authority that they are necessary. At the moment one can ask a local authority for help but there is nothing to make it comply. The amendment would improve matters because the local authority would have an obligation to act. Obviously local authorities do not want that, but the Government should not be upset by that. I hope that the Government would not always give in to what the local authority people tell them. I hope very much that, even if my noble friend cannot accept the amendment at this moment, she will take it away and see whether she can improve it rather than rejecting it out of hand, which would be a great pity.

Lord Carter

My Lords, I have added my name to the amendment. The noble Lords who have already spoken have explained the argument extremely well, but it is worth emphasising that the amendment does not propose an unrestricted right to assessment on request. It seems to express the Government's own concern, but within the context of what we feel is a clearer procedure. It ensures that users will receive a fast response to their requests. It also makes entirely clear the nature of the preliminary inquiries which would lead to assessment, and it makes clear to the applicants the grounds on which they may be refused an assessment. In other contexts the Government have always seen the consumer as king. The amendment reflects that approach.

Lord Swinfen

My Lords, I too should like to support the amendment. However, as I see it, it has one flaw. Not all disabled persons are able to make their own request. Therefore, somehow we should include the disabled person's representative. It may be better to do that by agreeing to Amendment No. 170, which we shall come to in due course.

Baroness Blatch

My Lords, when debating Clause 48 at Committee we discussed the need for assessment for community care services to be available on request to any person. I explained on that occasion that that was virtually the effect of the clause as drafted since it requires any local authority to carry out an assessment of any person for whom it appears the authority might arrange community care services. The provision was intended to be as wide-ranging as possible and not to deny anybody making a request for an assessment the opportunity to have one. The form of the assessment is of course left to the local authority to decide. That being so, I do not see the point of this amendment, which does no more than require the local authority to observe a time limit on deciding whether an assessment is needed.

Under Clause 48 a local authority is required to decide if a person is a person, for whom they may provide or arrange the provision of services", and this would entail taking action not unlike that suggested in the noble Lord's amendment. Our guidance on assessment will advise local authorities on the advisability of setting up some sort of initial scrutiny. Such a procedure would be quite proper since the clause leaves the form of the assessment to be decided by the local authority. An initial sift would have two purposes: first, to identify the people for whom no more detailed assessment is required, which would include those making unreasonable or vexatious requests; and, secondly, to decide the most appropriate form of assessment for those cases clearly needing further investigation.

As regards decisions in writing, our guidance will advise authorities that decisions should be given in the way most suitable in the particular circumstances and always in writing where the person concerned requests that. The important thing is to ensure that the person concerned understands the decision reached. Whether or not a decision is given in writing, the person concerned would still have access to the representations and complaints procedure that authorities will be required to set up in accordance with the new Section 7B of the Local Authority Social Services Act 1970 as set out in Clause 51 of the Bill. Finally, the amendment would require the local authority to carry out an assessment within a reasonable period of time. Again, the need for assessments to be carried out without undue delay is stressed in our guidance.

There is no difference between us on this aspect. The intention is that those who require assessments receive them as speedily as possible. I hope that I have shown the noble Lord that his amendment is not required and that the spirit of his amendment is met.

Lord Allen of Abbeydale

My Lords, I am sorry to disappoint the noble Baroness when I say that she has not demonstrated to me at all that the amendment is not required. Listening to her on this occasion and to Government explanations on previous occasions, I sometimes wonder why we are legislating at all, and why we cannot have it all in guidance.

There is not much point in dividing the House at this time of night. I must content myself with saying that I shall read carefully in Hansard what has been said and with putting on record that, so far as I understand it, I find it unsatisfactory. I leave open the possibility of coming back to the matter at Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hooper moved Amendment No. 167A: Page 52, line 24, at beginning insert ("Subject to subsections (4A) and (4B) below").

The noble Baroness said: My Lords, this amendment was spoken to with Amendment No. 145ZA. I beg to move.

On Question, amendment agreed to.

[Amendment No. 167B not moved.]

Baroness Seear moved Amendment No. 168: Page 52, line 27, after ("services") insert ("considering in particular the need for respite care if requested to do so by the person being assessed or by a person who has the responsibility of caring for the person being assessed").

The noble Baroness said: My Lords, I very much hope that the noble Baroness will not say that this amendment is not acceptable, because it particularly mentions respite care. The answer that I imagine I shall receive is that if respite care is mentioned, why are not a whole list of other requirements?

There is a good reason why respite care should be included in the Bill in relation to the services for which assessment is required. That is primarily not so much in the interests of the person to be cared for as in the interests of the person who does the caring. If a disabled or frail elderly person is being looked after, usually by a single carer in their own home, then that is a possibility—although difficult—if there is a certainty of respite care which makes it possible for the carer to have an essential break from the continuous 24-hour caring, seven days a week, 52 weeks a year, which is the position unless there is respite care.

Respite care therefore becomes an absolute essential if people are to be looked after in their own homes by single carers whose life is impossible unless they can rely on respite care. That requirement is therefore in a quite different category from other special considerations which should be taken into account, but do not need to be on the face of the Bill. Without it, that kind of care is just not possible, especially with the kind of cases that will come forward as all the much more severely handicapped and disabled people come out of institutions. I beg to move.

Lord Mottistone

My Lords, I support the principle of this amendment very strongly although I have reservations about the amendment itself. Respite care is immensely important for people with schizophrenia and their carers. It is not good for either of them to spend all their time with the other. They need time for themselves for independent activities and both need long periods apart from each of her, and so on.

Having said that, I very strongly object to the fact that this amendment was tabled at all. In effect, it is exactly the same as Amendment No. 113BF which was moved in Committee. As I said earlier in relation to another amendment, as I have understood the rulings in the past 20 years in this House, one cannot table an amendment at Report which in effect is exactly the same as an amendment which has been defeated by a Division in Committee. It may not be so according to the written word but that is the spirit of it. I think that that is a very sound spirit. That is why I was so annoyed when the noble Baroness took us to a Division on Amendment No. 113BF, which I strongly supported, because I had hoped that we should have been able to progress it to Report.

As a matter of principle I believed that that action was absolutely wrong, so I voted against the amendment, having spoken for it. At this stage, if the noble Baroness again takes us to a Division, I shall vote against the amendment although I think that the principle is absolutely right and I hope that the Government somehow will incorporate it in the Bill.

Lord Swinfen

My Lords, I am not sure that my noble friend Lord Mottistone is entirely right in what he has just said. But I shall not go into that argument.

I very strongly support the amendment moved by the noble Baroness, Lady Seear. Respite care is absolutely essential, not for the disabled person but for the carer, and that includes the whole family. A complete family can be very seriously affected by having a disabled person living in their midst.

The people for whom I work run a number of respite care units. Very often they are not full. They ought to be full. The local authorities, which generally are responsible for paying the fees, do not like paying those fees because they are not cheap. Respite care, on the face of it, appears to be very expensive.

But if the disabled person had to go into full-time care instead of being looked after at home by his family, the cost to that local authority and indeed the nation as a whole would be very much greater. By not investing in respite care there is in the long run likely to be very considerable expense to the public purse as a whole. I strongly support the amendment.

Baroness Hooper

My Lords, the Government fully appreciate the valuable part that respite care can play in giving hard pressed carers a much needed break. I should remind the noble Baroness that the number of short-term admissions to local authority residential care homes in England—which we may take as an index of respite care—went up from 60,200 in 1980 to 92,021 in 1988—a rise of 65 per cent. So it is going in the right direction. We have said repeatedly in discussions on this clause, both in this Chamber and in another place, that our guidance to local authorities on assessment—guidance which can, if necessary, be reinforced by directions from the Secretary of State—will advise authorities to involve users and carers fully in the assessment process and in the subsequent issues on service provisions.

We have also said that we want these decisions to be led by care needs and not by the availability of particular services. That is why an amendment highlighting one particular form of care could perhaps be unhelpful. I say that because it could have the effect of steering authorities and users alike down familiar pathways rather than encouraging them to be creative and innovatory in meeting care needs.

Respite care will be among the care options that local authorities will be able to consider in suitable cases. I certainly very much hope that they will give serious consideration to it when asked to do so by users or carers. I am grateful to my noble friend, Lord Mottistone, for his comments on the amendment. They might also be applicable to a subsequent amendment.

I hope that in the light of that explanation, the noble Baroness will feel able to withdraw her amendment.

Baroness Seear

My Lords, I certainly do not press it at this time of night. I am very disappointed with the answer. I hope that I have made the point as plainly as I can. Respite care is in a category by itself. Other noble Lords have reinforced what I have been trying to say. It would not be difficult for the Government to introduce an amendment of their own on these lines. However, as with almost everything else that we have suggested—making us feel that to a considerable extent we are wasting our time—they are obviously adamant. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch

My Lords, I beg to move that further consideration on Report be adjourned.

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

House adjourned at one minute past eleven o'clock.