Community Care (Direct Payments) Bill [H.L.]

HL Deb 07 December 1995 vol 567 cc1049-80

3.30 p.m.

Baroness Cumberlege

My Lords, I beg to move that this Bill be now read a second time. The concept of the welfare state conjures up in some people's minds a vision of helpless people in need of someone to manage their lives. That is both wrong and degrading. Disabled people know how to order their lives. They are often very independent and self-reliant and the state should not patronise them.

At the heart of community care is the aim of supporting and sustaining individuals within the community rather than encouraging people to withdraw from it. It is driven by a commitment to respond to the individual's desire to lead as normal a life as possible. Direct payments are a natural progression in community care towards that goal, giving users more control and more choice.

Local authorities have increasingly involved users in making decisions over their own lives, both in the services they receive and in planning new ones. Experience shows that they welcome this approach. But users have been asking us to go further—to go beyond involving them in decisions which affect them and to give them control over the money which is spent meeting their needs, so that they can make more decisions themselves.

That is what the Community Care (Direct Payments) Bill will make possible. Local authorities will be able to give people cash instead of services, so that those people can choose within the available resources how and when the services they need will be provided. They will be able to decide whom to employ to assist them in leading more independent lives and directly manage the services they wish to receive.

Our commitment last November to introduce this legislation was widely welcomed by disabled people, who are keen to take on this freedom. Local authorities have also welcomed our proposals. We are very grateful to a group of representatives of disabled people and local authorities who helped us think through the issues as we worked out the details of this Bill. We intend to go out to wider consultation shortly on our proposals for regulations.

Clauses 1 to 3 of this Bill apply to England and . Wales. Clause 4 makes corresponding provision for Scotland by adding new sections to the Social Work (Scotland) Act 1968. Clause 5 is a technical consequential amendment. Clause 6 allows for this legislation to be extended to Northern Ireland by Order in Council using the negative resolution procedure. So when this legislation comes into force, this power will be available to local authorities throughout the United Kingdom.. My comments therefore apply in general to the UK.

The starting point of the Bill is the local authority's assessment of an individual's community care needs. If it appears to the authority that someone (let us call her Rachael Brown) needs services—whether it be a person to help care for her, an adaptation, special equipment or any other service which the authority might provide—it has a duty to assess her needs. If it concludes that Rachael needs services, then at present it can either provide those services itself or purchase them on her behalf from another agency. Under this Bill, in certain circumstances the local authority will also have the option to make a direct payment to her to enable her to buy the services herself.

The Bill does not impose on local authorities a duty to offer anyone direct payments instead of services. Local authorities will still have to decide the most appropriate way of meeting an individual's needs; but they will now have a new alternative to offer. Nor will any individual be forced to accept direct payments. If Rachael prefers services rather than cash, then that is her choice. She might also choose to receive a mixture of both cash and services.

Clause 1, and the Scottish equivalent in clause 4, enables the Secretary of State to specify in regulations which groups of people may receive direct payments. We think it will be sensible to restrict the initial size of the client group for this new, untested scheme.

In the consultation paper to be published early in the New Year we will set out a number of alternatives suggesting who should be included in the eligible group. We will consider carefully what people have to say during the consultative exercise and before we reach a final decision.

The payments will work as follows: The local authority will decide how much the direct payment to Rachael Brown should be. The local authority will not be able to set direct payments at a level which is insufficient to meet her needs. Nor can it set direct payments at a level which it knows is less cost-effective than the services it provides—the authority still has a duty to ensure value for taxpayers' money. So, for example, the local authority cannot arbitrarily decide to give Rachael £100 for a service that costs £200. Equally, if she says that the service will cost her £300, and the local authority knows that the same service is available for £200, it does not have to pay her the additional £100.

In setting the level of payments, the local authority can also take into account Rachael's financial circumstances. This enables them to require her to make a financial contribution to the overall cost of her care in the same way as it may charge for services. Not to include this provision in the Bill would be unfair to others who receive local authority services.

We propose to make regulations specifying certain categories of people who may not be paid to provide care using direct payments. Again, this is an area where we will spell things out in detail in our consultation paper. We intend to use this power to prevent the inappropriate use of direct payments to pay for "informal" care; that is, care provided voluntarily by family and close friends. The aim of direct payments is to give users more choice and control over services which they would otherwise receive from local authorities, not to replace existing support given by families and communities. But we do not intend to use this power significantly to restrict the .individual's choice of support.

Clause 1 also contains a power to make regulations to limit the length of time for which direct payments may be used to pay for residential accommodation. This will allow local authorities to make direct payments for temporary residential care—for example, for respite—but not for permanent residential care. We will be consulting on what the maximum period should be.

The final provision under Clause 1 is for local authorities to be able to require direct payments to be repaid in certain circumstances. We will consult as to what those circumstances should be, but the power is designed to recover money which has been misspent. This is important as it will deter people from abusing the system. We do not expect abuses to be common, but if anyone does divert the money they receive to other purposes, local authorities need to have the power to require them to return it.

Clause 2, and its Scottish equivalent in Clause 4, ensures that a local authority which makes direct payments will not also have to arrange the services, thus paying twice. So long as the local authority is satisfied that the individual's own arrangements are adequate to provide the agreed service, it is relieved of its responsibility. However, the local authority still has to act as "carer of last resort" and will have a responsibility to arrange the services if it is not satisfied that the individual's needs are being met.

Clause 3 is a consequential amendment to include direct payments in the list of social services functions. This means that people receiving direct payments will have the same access to the complaints procedures as others, and that the Secretary of State will have the same powers to intervene, should a local authority fail to carry out this function properly, as he does in other cases. An equivalent clause is not needed for Scotland as the Scottish provisions will form part of the Social Work (Scotland) Act 1968, which already provides for a complaints procedure and other functions.

This Bill is an exciting and highly innovative measure which has the potential to make a major difference to many people's lives. It will give adults who are able and willing to manage their own care the opportunity to do so.

Direct payments are an idea whose time has come. I applaud the local authorities which have tried, with imagination and ingenuity, to make their services more , responsive to people's needs. But imagine a man in his forties suffering from multiple sclerosis who needs a lot of help to carry out everyday tasks. When receiving local authority services, he may not be able to control who comes into his home to help him or what time they come. He is a recipient. Give him direct payments and he will be able to choose how the services are provided and when. He might choose to employ his own personal assistant or contract with an agency. Either way, he is in charge.

Local authorities have been asking us to allow direct payments, and I believe that they can make them work, but there are some complex issues involved. Useful lessons can be drawn from the experience of the independent living funds, and from the payment schemes that some authorities have operated through voluntary organisations. But direct payments have never been part of core community care provision. This Bill is designed to give local authorities the best chance of making direct payments a success. Since direct payments will, for some people, replace community care services, we expect any local authority that decides to make direct payments to do so within existing resources.

This Bill is an important step along the road of handing back to disabled people the dignity and respect they deserve. They have welcomed this new opportunity to take charge of their own lives. Some might wish us to go further, faster. But this is a new venture which goes beyond what any local authority has operated to date. This is not a time for enthusiasm to triumph over common sense.

I have said that we intend to consult on our proposed regulations. I hope to publish a consultation paper in the new year. In order to allow a reasonable length of time for people to respond to the consultation, I doubt that it will be completed before the Bill has gone to another place. But I can assure your Lordships that we will not be seeking to complete the Bill's passage before the consultation period ends, and that we will give careful consideration to the comments we receive. I therefore commend the Bill to your Lordships' House.

Moved, That the Bill be now read a second time.—(Baroness Cumberlege.)

3.41 p.m.

Baroness Hollis of Heigham

My Lords, with real sincerity we thank the Minister for introducing the Second Reading of this Bill. The Bill is very much welcomed and has all-party support. When a couple of years ago the noble Lord, Lord McColl, introduced a somewhat similar Private Member's Bill following a similar effort in the other place by Mr. Andrew Rowe, the Minister regretfully told the House that she had to be the messenger of bad news. I think that she is perhaps slightly happier with her role today.

I wish also to pay tribute to those organisations which have worked so hard and so long for a Bill such as this. I think in particular of the Disablement Income Group, the Disability Alliance and the British Council of Organisations of Disabled People, as well as those pioneering local authorities led by Kingston but supported by the Association of Directors of Social Services. Indeed, local authorities have for so long been keen on direct payments that many of them have been bending the law and laundering such money through trusts and voluntary organisations, something to which the Government have wisely and equally illegally turned a blind eye.

Why were direct payments wanted? Direct payments place a disabled person at the centre of the care system rather than as a dependant on it. A disabled person is supported to be independent rather than cared for as a dependant. Direct payments mean that services are fitted to the needs of the client because she—I was delighted that the Minister had a Rachel Brown rather than a Richard Brown—purchases, she organises, she employs, she manages and she chooses, rather than she being fitted to the needs of services. One has only to think of the pressures on a local authority trying to organise a rota of putting to bed services, and if someone has to be put to bed at 9.30 p.m. and someone else at 10.30 p.m., how limiting that is for the person involved. The client must fit. But if the disabled person employs her own staff—she determines when she gets up, when she goes to bed and when she goes out—it permits spontaneity and flexibility, the choices in life that every one of us here takes for granted.

With services, alas, too often that can mean that your own home becomes a smaller version of a residential home. You are confined to or contained in your own environment. But with direct payments, as the experience of the independent living fund has shown, they are very often a springboard to the richer and fuller life that we would all wish to enjoy. As a client of the ILF reported in the BCODP's report of last year, Cashing in on Independence, said: 1 am in control. I can decide when I want help. The way help is delivered—I feel it is my life, not someone else's. You are not fitted into other people's timetable. Freedom—you can choose who you have. If you don't like them, you can have someone else. You can choose the manner in which a task is performed, unlike when local authority home care staff are used. It releases me to have family as family and friends as friends". The second reason for supporting the Bill is that many care tasks, as many of your Lordships will know, are quite intimate. They involve toileting, bathing and dressing. Therefore it means that a disabled person with direct payments to purchase that care, no longer has to depend on the ministrations of strangers who may change from week to week; who may be kindly; who may be careless; who may be over protective; who may be judgmental; or who may not, for example, respect confidentiality on such sensitive issues as gender orientation. As an independent living fund client said: If you are paying for it, you get what you want". It ensures dignity and privacy.

The third great advantage of direct payments is not only that disabled people are placed at the centre of the care system and are allowed to choose who should provide these intimate services; but it provides us as a community, and they as disabled people, with better value for money. It can be, and usually is, cheaper—not because direct payments pay for cheap labour but because local authority services in kind invariably carry up to 30 per cent. overheads; £5 an hour of direct payment takes £8 of local authority equivalent service.

It is also cheaper for a second reason, because a social worker is not required to handle the day-to-day administration of, say, a taxi account, at £20 an hour. The disabled person, or perhaps the carer, will use their skills, energy and time to manage and employ. That means not a dethronement of the professional but allowing the professional to spend valuable time on the professional judgment of assessing needs, arranging training packages and, if necessary, providing the dip stick of financial and quality control. For that reason, we also welcome the Bill.

It is also better value for money because it allows the services bought with that cash to be better targeted to needs which can indeed—for example if one has multiple sclerosis—fluctuate from week to week and does not insist that you get the same, week in week out, whatever your timetable, whatever your needs or whatever your medical condition.

Research in 1994 showed that, with the services equivalent to the cash value of direct payments, 80 per cent. of those receiving services wanted and needed more hours. But only 37 per cent. of those were receiving direct payments. Direct payments allow them to use the cash to target and meet their needs more effectively. They allow personal brokerage. The contrast with the cost of residential care is very striking. The information that comes to us from Kingston is that the authority supported eight severely disabled people in the community through direct payments at a cost of £55,000. The same cost for those eight people in residential homes would have been more than £500,000.

I quoted the direct payment client who said that direct payments allowed a family to be a family and friends to be friends. Direct payments allow the employment of personal assistants who, in turn, are able to meet needs. That frees family and friends from the often heavy and, sadly, occasionally resented burden of care—resented on both sides. Parents, partners and children no longer will become carers on whom the disabled person is quite so dependent and who in turn too often treat the disabled person as less than a full or complete moral adult. What it means is that there will be greater equity, greater respect and greater dignity within the family. Of course, informal caring will continue but the burden will not be so heavy and the help will be more gracefully received.

This is not for everyone. We estimate that perhaps one person in 1,000 people receives home care and perhaps only one tenth of those may want direct payments. Many other people, particularly the lonely elderly, may prefer the ease and companionship of services instead. It is very much an outline Bill and, as ever, the devil will be in the detail and in the regulations. We regret very much that we have not been able to enjoy the results of the consultation exercise. But at Committee stage we shall seek to raise issues which we suspect will be dealt with by regulations. Perhaps I shall seek to get the Minister's assurances or in some cases put certain concerns on the face of the Bill.

The first question in this context is that this Bill gives local authorities—I believe the Minister was entirely right to emphasise this—discretion whether to offer direct payments in whole or in part. We agree with that. But we do not believe that it is sensible to narrow local authority discretion in advance by excluding certain groups of disabled people potentially from the right to direct payments. We want every disabled person potentially, if it is appropriate, to have access to direct payments whether they be young people of 16 or 17 years of age; older people over 65 or people with educational learning difficulties as well as those with severe handicaps.

We are not saying that all should receive direct payments or that all want them, but we are saying that that decision should be made locally through the discretion of the local authority, informed by the professional judgment of the social worker and not made a priori by the Secretary of State who cannot know what the local circumstances are. This is all the more so, as direct payments under this Bill are not a right but a discretion from a local authority, and if that discretion is being exercised by the local authority, we do not need a second tier of discretion behind it; namely, that of the Secretary of State.

However, we are anxious that disabled people should not experience a geographical lottery utterly dependent on where they live. Hence, we shall be moving amendments to ensure that such direct payments should "not be unreasonably withheld", thus ensuring equity of access for disabled people across the country, but within a framework a test of reasonableness about the way in which the local authority exercises its judgment.

The Minister did not mention this, but perhaps she will confirm it in her reply: we also want to underpin direct payments and strengthen references in the Bill to the appeals procedure with perhaps ultimately a right of reference to the ombudsman. We shall also want local authorities to publish annual reports in terms of assessing demand and need and the degree to which they have been met.

One of the issues concerning local authorities will be the financial implications. I am sorry that the Minister's remarks were quite as robust as they were. She said that local authorities can expect no additional finance if they switch from services to cash, on the assumption that there is a cash equivalence between the two. For example, will the Minister tell us what will happen to the existing independent living fund? I do not believe that she mentioned it. Will its work and finance be transferred to local authorities and, if so, will it be ring-fenced? Therefore, will there be a sunset clause? Can the Minister tell us whether there will be a floor or a ceiling to the levels of direct payments?

Still on the subject of finance, will the Minister give us very clear assurances—and this is pivotal—that direct payments, because they will now be cash and not services, in no way affect the other cash benefits that a disabled person currently receives? Can she confirm that we shall not see the disability living allowance or the disability working allowance affected; that we shall not see such cash payments counted as income when it comes to the assessment of other benefits such as housing benefit, council tax benefit and even income support itself? That is crucial. I am sure that the Minister' intends that it should not, but it will help to have her words on the face of the Bill.

Can we also ensure that such payments are not counted, for example, for the Child Support Agency and, equally, that any particular payment that currently goes to a disabled person by virtue of their disability such as DLA or DWA, should not count towards the assessment for charging purposes? Can we also ensure that the health medical element that may come from the district nursing service, which is currently now free, will not also be turned into a cash equivalent and charging assessed against it? It is very important because the success or failure of this scheme will depend on such questions.

Still on finance, what are the charging issues in the locality? At the moment a disabled person may receive 10 hours of home help and contribute, say, £20 towards the full cost of, say, £80. If that is translated into direct payments, how will the charging mechanism come into place? For example, will the charge be deducted at source or will there be a subsequent repayment? Will the Government issue guidelines to that effect?

We share with the Minister a concern for safeguards as regards financial audit because direct payments are not meant to be a charter for cheap labour in which care is assessed at £8, a person pays £4 and the difference is held to be unaccountable. We all wish to explore whether the Minister has assumed in regulations such issues as contracts of employment, dedicated bank accounts or timesheets, and whether they are envisaged. After all, we are dealing with public money and no one, least of all disabled people themselves, would wish there to be any suggestion of misuse by people in the future.

We may equally wish to explore the implications of having a register of personal assistants in order to ensure a degree of quality control. We are open-minded about that. It may prove to be useful to people who are perhaps not used to being employers.

We mentioned earlier that up to two-thirds of local authorities are currently laundering direct payments through trusts. Experience shows that, at least to begin with, disabled people will need help and support in becoming employers and coping with tax, national insurance and accounts. The ILF has certainly had cases in which there has been less than appropriate handling of those matters and a disabled person has got into financial difficulties. Can we emphasise from the beginning—and hope that the Minister will share with us—the fact that it is urgent that even before direct payments are paid, and certainly from the point at which they are made, local authorities also produce support packages, where appropriate, for the disabled person so that they know how to manage the money, the staff and the tax and insurance implications, otherwise there may well be very real difficulties in the future.

Perhaps I may finish by quoting from Sir Peter Large, who has done so much for disabled people. He once said that direct payment, means the difference between a life in which most of your choices are made by others and a life in which you can mostly choose for yourself'. This Bill extends to disabled people the right to choose, which is the same right that we all want and enjoy for ourselves. We are delighted that the Government have finally brought forward such a Bill after pressure for so long. We shall seek to make it even better. We welcome it and hope that it will get a speedy and effective passage through this House.

3.57 p.m.

Baroness Hamwee

My Lords, I start by declaring an interest as a councillor in the London borough of Richmond-Upon-Thames, which is a unitary authority with responsibility for social services and, of course, community care obligations. I too welcome this Bill very warmly. I welcome it because, in assisting people to take responsibility for and control of their own lives, something quite inherent to human dignity is being recognised. I also welcome it because it is really better to make legal something which has been of doubtful legality until now. I also welcome it because it provides a further right to make an informed choice and I stress the term "informed". I believe that it will be important to ensure that real choices are made available to those who should have the opportunities which this Bill seeks to provide.

Having taken this very important step, the Government must take care not to fail in the detail. I note what the Minister said about the consultation which is to take place in the new year. I was sad that she indicated that it was unlikely to be completed before the Bill leaves this House. It is important that the legislative process does not outstrip the consultation on the proposed regulations, and indeed that the legislative process does not go very far down the line before that consultation has taken place.

Given the attention that it is able to pay to matters of detail, I believe that this House is perhaps the better forum in which to discuss that detail. It would be a pity if important, practical, small but significant matters had to be left until the Bill was in another place and if, for reasons unconnected with the Bill but relating to the pressures on the parliamentary timetable, they were not given the attention that they deserve. I understand that where there is a major change of direction such as this, it is sensible to provide for the possibility of adjustment in regulations rather than in primary legislation, so I do not seek to challenge the use of regulations.

However, if those who support the thrust of the Bill are to be happy with it, many questions needs to be answered. I hope that every opportunity can be given for full discussion of and agreement to the regulations which will be so important for the application of the principle. Those questions include: who will be able to benefit from the Bill? I very much agree that the Bill and its application must not be discriminatory. I accept that, because this is a new way of providing services and of making them available, the gradual extension of the application may be important so that all those involved can learn as experience is gathered.

It is important that there is no discrimination on the ground of age, for instance. It would be sad if there were a cut-off point at, say, 65, as has been mentioned. It is also important that there is no discrimination on the ground of what perhaps I may call "ability". Those who may be less able than others and who perhaps have learning difficulties are still able to take decisions when they have the appropriate support.

Another question relates to the services that are the subject of the Bill. I believe that local authority services should remain eligible to he purchased. In the centralisation of government there is a move to reject what is done by local authorities. I hope that that is not the case here and that the services which local authorities can provide will be among those included in the provisions. Furthermore, these provisions on community care services should not be any part of a move to replace what should properly be health care. To put it another way, the legislation should not provide the excuse to shift responsibility for what is properly health provision into another pocket and another purse.

Another question is: what if the client or the user fails properly to secure the care that she or he—I too will put it that way—should be securing and to which he or she is entitled? Is the local authority to be required, in effect, to pay twice over and thus prejudice its ability to support other people?

Clause 1(2) raises the question of means. The relationship between means and need will need to be considered. It is impossible to avoid consideration of questions about the total funding available if only because every new scheme almost inevitably involves start-up costs. It would be a great pity to jeopardise the scheme by failing to pump-prime it properly. That is not to say that the best value for money should not be sought. I am well aware of the research that indicates that the independent purchase of care leads to both better quality and better value for money. However, I cannot help but think that economies of scale can now be achieved which are perhaps a counterweight to the on-costs of administration which the noble Baroness, Lady Hollis, mentioned. No doubt the practitioners will be using their best efforts to achieve those economies.

It will be the individual who will have the incentive to get the best value from the resources that are available to her or him. However, in the less well-run authorities, that could be reduced to, "Here is a certain sum of money; do what you can with it". As the Minister said, the overall and underlying responsibility for care is most important. Finally, on the subject of resources, the inter-relationship between payments and benefits is important. Perhaps I should say that it is important that the payments do not affect other benefits.

By whom are the services to be provided? I suggest that Clause 1(3) is slightly unusual, in that the payment is, subject to the condition that the person to whom it is made shall not secure the provision … specified … by the Secretary of State". It will be interesting to see such a regulation. Those provisions raise, perhaps indirectly, the question of the regulation of the services which are to be provided, among which are domiciliary care services. There has been some call for the regulation of domiciliary care services. Such questions will doubtless be answered as the Bill moves towards enactment.

The rights of those who provide the services are important in any new regime, as are the concomitant responsibilities of the service users in their new role as employers. The provision of assistance to both parties will be an important aspect of the effective introduction of the new arrangements.

I repeat that my main concern is how to ensure that choice can properly be exercised. Once introduced, we shall need to know how the scheme is working. I share the concern of the noble Baroness, Lady Hollis, on that point. It is important that there should be an easily accessible review by local authorities, possibly as part of their community care reports. Therefore, although I heartily welcome the Bill, I believe that before it is enacted we need to see considerable progress with regard to what is not on its face.

4.7 p.m.

Baroness Darcy (de Knayth)

My Lords, I give a warm welcome to the Bill and join the Minister in saying that this is an "exciting" moment for those of us who have been involved from early on. The noble Baroness, Lady Hollis, mentioned 1992 and Andrew Rowe's Bill; in 1993 we had that of the noble Lord, Lord McColl. It was as early as 1990, during the passage of the National Health Service and Community Care Act, that my noble friend Lady Masham and I lost an amendment by five votes. The Minister may remember the occasion because it happened soon after she became a Member of your Lordships' House. My noble friend Lady Masham is extremely sorry not to be here today but she is attending a regional health authority seminar.

Like the noble Baroness, Lady Hamwee, but for different reasons, I declare an interest. I am a member of the Spinal Injuries Association, which was started 10 years ago by my noble friend who is its president. Those very severely disabled quadraplegics were among the first to press for direct payments and the freedom to choose who gave them the very personal assistance about which the noble Baroness, Lady Hollis, spoke, together with the freedom to operate to their own timetable, which is essential if you are to do a job and lead a busy and effective life. Both my noble friend and I are fortunate. We are not sufficiently disabled to need help with personal care, but we are only about three vertebrae away. If we age and deteriorate much more, both of us could find ourselves directly interested parties.

The Bill is most welcome, but I have one or two questions which I hope the Minister can answer today. There are also one or two changes which I should like to see made during the passage of the Bill. It must be right under Clause 1 that it should be discretionary, not mandatory, for local authorities to offer direct payments to those who are not only capable, but who are actually willing, to organise their own care package because, as the noble Baroness, Lady Hollis, said, not everyone who is eligible will want to do so.

I welcome the fact that there can be a mixture of care and cash payments. That may well prove useful. I hope that it will be made clear that any payments made in lieu of service should be allowed to include an administrative component which would otherwise be absorbed within the delivered service. I know that that was done in one successful early example of direct payments. I hope that the Minister can answer the point when she replies.

I turn to Clause 1(1)(b) relating to who will be allowed to benefit. I am grateful to the Library for the helpful notes it sent me. They indicate—the noble Baroness said this today—that eligibility may be restricted by disability and by age. It cannot be right to impose an age restriction. I imagine—I should be grateful for the Minister's assurance—that anyone already in the scheme will be able to continue when they reach 65. Why should anyone be less capable of organising their care package at the age of 65 rather than 63 or 64? It is not a question, after all, that they will no longer be eligible for the benefit but just the method of the delivery of the help.

Imagine the frustration, for example, of a paraplegic who, having led an active and independent life for many years, becomes a bit more disabled and needs help with personal tasks, and who is told at the age of 65 that he cannot retain control of his life and keep his independence. The Secretary of State should not be able to put blanket restrictions on particular disabilities. It is difficult to draw firm lines: people vary so much, not just in their abilities but in their desire to take on the business of managing their own package.

Until last week I believed that we were talking only about a narrow specific group of severely physically disabled people, but I understand that there are a good many examples of, for instance, people with learning disabilities who are in receipt of direct or indirect—through a third party—payments. Surely, just as it is up to local authorities to decide whether to offer direct payments, it should be up to local authorities to decide to whom they offer that option. The only real criterion should be that the person be capable, in one way or another, of managing his own affairs.

I come now to means testing. Will the Minister assure us that any means testing for direct payments will be on the same basis as for providing service? I reiterate what the noble Baroness, Lady Hollis, said about welcoming the assurance that disability living allowance or attendance allowance will not be taken into account when calculating the amount of the direct payment.

Clause 1(3) relates to the categories of people who may not be paid. I believe it is a question of relatives and that people in receipt of direct payments will not be able to purchase local authority-provided services. I am not sure why. I wonder whether the Minister can expand on that point. There was one word of caution from the Spinal Injuries Association in a brief written by someone who has been in receipt of direct payments and knows what he is talking about. It said that we must remember, as the Minister made clear, that the purpose of the Bill is primarily to enable disabled people to have more choice and control over the assistance that they need in their lives. We must, however, avoid the situation of an adult, living with his or her parents, where the payment becomes a considered part of a family income and leads to the individual being institutionalised within the parental home. I see that as something against which we may have to guard.

Clause 1(5) deals with reclaiming all or part of direct payments. Will the Minister go into more detail on that when she replies? Apart from that, I give the Bill the warmest of welcomes. I hope that the Minister can reassure me tonight on the means testing and disregard of the DLA and AA. I look forward to the Committee stage and hope that we can arrive at a satisfactory arrangement about eligibility.

We have waited a long time for the legislation on direct payments. We very much want to get it right. It is right that local authorities should have discretion as to whether to offer direct payments and to whom, but—here I like the phrase used by the noble Baroness, Lady Hollis—they should not be withheld unreasonably. I hope that we can turn a good and most welcome Bill into a very good Bill indeed.

4.15 p.m.

Lord Campbell of Croy

My Lords, we must all be grateful to my noble friend the Minister for her lucid explanation of the aims of the Bill. I support the principle of direct payments. I made that clear when supporting the Private Member's Bill introduced by my noble friend Lord McColl, a year or two ago.

The Bill is needed. Direct payments by local authorities in England and Wales have been ruled illegal. So some local authorities have been making payments indirectly through third parties. Direct payments have been possible in Scotland within prescribed circumstances. The situation needs to be rationalised for the whole country and to become part of the community care system.

As regards Scotland, the relevant Scottish Office departments carry out the functions of the Department of Health in England and of the Department of the Environment in England in dealing with local authorities. There has been separate legislation in Scotland, in particular the Social Work (Scotland) Act 1968.

The experience of direct payments in Scotland has encouraged the adoption of an authorised system within UK legislation. Also, the Independent Living Fund, while it was functioning until the early 1990s, proved that its clients benefited from making their own arrangements for care and that the payment system was cost-effective. It was in the interests of the taxpayer that that system should be adopted.

While I am glad that the Bill has received a wide welcome, many important ingredients of the proposals have still to be worked out and adopted; for example, the categories of disabled and elderly to be included, and, perhaps more important, those not to be included. A great deal has to be filled in by the regulations. I have been awaiting the expected report from the Delegated Powers Scrutiny Committee (of which I am no longer a member), but I am informed that the report is not yet available. I look forward with interest to seeing its opinion on the suitability of the statutory instruments proposed which would contain the regulations under Clause 1 and Clause 4 (that is, England, Wales and Scotland respectively), and also the committee's opinion on the parliamentary procedures proposed for those statutory instruments.

Leaving much to be decided later and brought forward in regulations has advantages and disadvantages. As regards the advantages, it leaves time for full consultation with organisations which will be involved or are concerned. During the recent passage of the Disability Discrimination Bill, I, and I am sure other Members of the House, were aware that many voluntary organisations were asking that too much should not be put into the primary legislation and that too much should not be decided before they had had every opportunity to be consulted and to put their views forward, and to have those views taken into account in the subsequent legislation. Those are the advantages.

The disadvantage is that we do not know at this stage of the Bill the particulars of the scope which is intended. I hope that my noble friend will be able to give us as clear indications as possible of what the Government have in mind and what is likely to be in the regulations at later stages of our discussions.

One matter which is not clear to me is the intention to bring in clients gradually, starting with particular categories. Here I note that my right honourable friend the Secretary of State for Health, speaking in another place in the debate on the gracious Speech, said: We want to focus on specific groups so that we can test the system and ensure that it is well proven before it is implemented generally".—[Official Report, Commons, 17/11/95; col. 243.] Are there to be pilot schemes? It is not clear whether there will be pilot schemes limited to particular areas. Is the rumour correct that, to start with at any rate, the schemes will be restricted to those under the age of 60?

That brings me to the overlap of disabled people and elderly people, for both categories of which the care in the community system was created to cater. The 1991 census, with its definition of disability, produced the figure of 6.5 million disabled people in the United Kingdom. That figure has been much quoted ever since. The census analysis accompanying the figures also recorded that more than 5 million of the 6.5 million were over retirement age, most not having been disabled during their working lives. Therefore, a large proportion of the classified disabled are elderly people with handicaps of the kind which must be expected with advancing years.

The organisation Age Concern is worried about how the proposed direct payments scheme will start and for whom it will cater when it is finally in full operation. Connected questions have been raised by the Law Society. It seems that in the Bill there will be definitions of community care services and disabled people and they will not necessarily be the same definitions as appear in other statutes. A definition "for the purpose of this Act", whatever Act it may be, is a common practice as we know it in parliamentary terms. However, it is bound to be confusing to members of the public and many organisations which are concerned with these matters outside Parliament.

There is doubt and anxiety among organisations concerned about who will be eligible. For example, might a very severely mentally disabled person be ruled out because he or she is judged to be unable to handle the payments and purchases? To what extent will carers or competent helpers be accepted to manage arrangements for an elderly person who may not be capable of making the care plans on his or her own? Those are the questions—others have been raised by earlier speakers—to which we do not yet know the answers. It is intended that answers shall be provided in the regulations to come after full consultation.

I congratulate the Government on introducing the Bill now, although there is still much to be decided and included in the scheme. I support the intentions in the Bill. I wish my noble friend Lady Cumberlege well in the discussions and consultations which she and her colleagues in government will no doubt be carrying out in the immediate future.

4.23 p.m.

Lord Addington

My Lords, I join all those who have supported the Bill's basic intentions. Indeed, its general thrusts are so straightforward that it is strange that it was not introduced sooner. At least it is before us now. We should all applaud direct payments to the elderly and to disabled people to enable them to determine their own types of care.

I shall not repeat the points that have already been made, but it is clear that we must feel our way forward gently. There are many potential problems ahead; for instance, the types of local authorities and the structure will be difficult to determine.

The only point that I can usefully make at this time is this. We have heard much of the problems of introducing individual payments and the problem of defining the status of employers has been hinted at. However, we have not taken on board the fact that we shall need comprehensive support services for everyone involved in the system. The vast majority of people will not be used to selecting care for themselves. They will not know how to do that legally and financially, nor will they know the type of care that they should be receiving at a particular time. They will know about their current type of care and they will have a rough idea about where that is going. Other people will require knowledge of certain aspects. But we shall need support services which will know when new techniques and methods of care come on stream.

I hope that in the pump-priming—and there must be pump-priming—that will be borne in mind. Without such help, an individual may be restricting himself or herself in the type of care that is received for the simple reason that they do not have the appropriate information. The Government must take that on board. Furthermore, many groups of people will be brought within the scope of the Bill, but I hope that no group will be eliminated merely because of the paperwork involved. Decisions should be made on an individual basis and on the basis of need. However, certain groups of people will have difficulty with the paperwork. Unless assistance is given to them, they will not be able to take advantage of the benefits of the system. I hope that during the various stages of the Bill we shall be given information about the guidance that is to be provided. Without such guidance and support it is unlikely that most people will get the best out of the system.

We must bear in mind that where there is a group of 10 disabled people there will be 10 types of individual need. Therefore, I hope that there will be no subdividing of the types of assistance for individual categories. We must provide support services that are flexible for individuals so that they can get the best from a system that is designed to give them dignity and status.

4.27 p.m.

Lord Pearson of Rannoch

My Lords, I should start by declaring an interest in the Bill as the father of a 15 year-old mentally handicapped daughter and as the unpaid honorary president of RESCARE, the National Society for Mentally Handicapped People in Residential Care. I would also like to apologise to your Lordships on behalf of my noble friend Lady Cox. She is unable to be with us this afternoon because of a long-standing engagement, as speaker at a university open day, which she felt she could not avoid. She has asked me to say that she will be taking a keen interest in the later stages of the Bill.

I spoke about the Bill on the third day of our debate on the humble Address on 20th November (cols. 201 to 203 of the Official Report). I will not try your Lordships' patience by repeating that now. My noble friend on the Front Bench has been good enough to have sent a letter to me stating that she will attempt to answer the questions that I put then which were not answered by my noble friend Lady Blatch, who was answering for the Government on that day.

Briefly, I made the case then, as I and others have done before, for village communities for mentally handicapped people, which appear to be preferred by the majority of families with a handicapped member. I asked whether the direct payments proposed under the Bill could be available for those families too. One is especially talking about mentally handicapped people who are so handicapped that they cannot be expected to make that kind of decision for themselves. I mentioned the strange but virulent bias which exists in local services and health authorities against such communities. I suggested that local services appeared to be flouting the Government's intention that 85 percent. of public spending on care referrals should be ring-fenced for the non-council sector. I concluded that the Citizen's Charter was therefore being largely ignored in this area and that this was costing the taxpayer very large sums of money.

If the full import of what I said on 20th November is properly measured, I am now confident that we could save thousands of millions of pounds annually if we merely did what so many families want us to do. I repeat that we are not putting money first before care effectiveness, but the economies of scale which village communities offer and the health requirements of our more mentally handicapped people which they can meet are unavoidable, if that is what their families want.

Since then I have been giving some thought as to why this virulent bias against village communities has become so politically correct in our Department of Health and in local services. I have been asking myself why the pendulum of opinion has swung too far away from care in a residential hospital (many of which certainly had their problems) towards nothing but care in an ordinary house in an ordinary street, towards integration into the so-called community at any price, even at the price of ignoring the Citizen's Charter, and at vast expense to boot.

There is not time to debate the answers fully today, although many of them are in the brochure to which I referred in our debate on the Queen's Speech, Made to Care, a copy of which is in the Library with, as its main author, my noble friend Lady Cox.

There is clearly a certain professional arrogance in the air which takes for granted that life in an ordinary house in an ordinary street must be more fulfilling or more "empowering"—to use the jargon—than life in a village community in the country. There is also inexplicable bias against life in the country, especially in the deep country. But many of our most fortunate and successful citizens choose to live in the country and avoid London and other towns like the plague. That preference for country living is not entirely unknown, even among Members of your Lordships' House. So why should this choice be deprived to our mentally handicapped?

There is an assumption, often mistaken in my view, that a village community must be stigmatised as "that sort of funny place on the hill" or some such, and that its inhabitants must therefore feel ashamed. I assure your Lordships that my daughter does not feel ashamed. She cheerfully says she is going home when she returns to her community school, where she has a real place among her peers and where she is not constantly reminded of her handicap by other so-called normal children and people. I am convinced that this must often apply to mentally handicapped adults as well.

Of course, there are many families who know that their mentally handicapped relative is happier and even perhaps made to seem more normal by living in an ordinary house in an ordinary street. It is just that many of us know that that can be a very lonely place and even more institutionalised than the residential hospital from which they may have been evicted against their own or their family's wishes. The point is that there should be genuine choice and the point is that at the moment there is not.

The professional arrogance of which I complain is nearly always to be found in people who do not themselves have mentally handicapped members of their own families. There is a theory going around these professionals at the moment that those of us parents who support village communities must be suffering from a psychological illness known as "cognitive dissonance", which was put forward by a Mr. Festinger in 1957, I gather. This means that we feel so unconsciously guilty about having placed our relatives in a village that we are incapable of recognising the beauties of community care, as administered, of course, by the professionals who advance this theory against us.

I am no expert in Mr. Festinger's theory, but I cannot see why we should not be allowed to apply it to the very same professionals who advance it against us and suggest that it is their subconscious guilt in feeling so fearful of mental handicap which makes them want our relatives to be more normal than they really are. This therefore makes them so arrogant towards us that they cling aggressively to their notions of normality as achieved by community care.

Be that as it may, and I feel sure that it is, I have been reading the Conservative research department's brief on this Bill which is presumably well-informed about the Government's intentions. Without giving any party secrets away, I propose to quote a few passages from this laudable document which seem to make it very difficult for my noble friend on the Front Bench not to agree at least with the thrust of my request.

We start under "Key Points" with the main aim of the Bill where it says: The … Bill will allow local authorities to give people cash payments as an alternative to community care services". I am assuming throughout all of this that with really handicapped people one is involving their families closely in this choice. The brief goes on: Direct payments will give people more choice and control over their lives, and so more independence". That is, of course, exactly what we are looking for.

When we come to the care reforms and the aims of the reforms we are told that these will ensure that: Individuals are directly involved in planning the services they are to receive: their needs and wishes are paramount". I am sure that we all agree with that. It goes on: The old system had a bias towards residential care, regardless of what was best for the individuals concerned. The reforms have removed this bias, offering people genuine flexibility and choice in how they are looked after". My Lords, not so. It is now biased against residential care and village communities which must not be confused with the old-style residential hospitals.

The document goes on to say that the object of the exercise is, to promote the development of a flourishing independent sector. This will help to improve standards and value for money. It will also help to ensure individual choice". In my speech on the Queen's Speech, I quoted an internal memorandum from Birmingham social services department which I think disproves that that is happening at the moment and in fact suggests that quite a lot of local authorities are flouting those requirements.

The document talks of securing, better value for taxpayers' money, as a result of a new funding structure for social care". Under "The Role of the Local Authorities", the document states: Councils now have to: identify those people who appear to be in need of care services; assess what help or support these people need … discussing with them their wishes and preferences … These services may be provided by the local authority, but increasingly a greater proportion will be purchased under contract from organisations in the independent (i.e. non-local authority) sector. Where the individual appears to need health services or help with housing, the authority must get in touch with those who can provide assistance". Again, one assumes that they will be in touch with the family.

When we come to "The Role of the NHS", this includes, continuing in-patient care under specialist supervision in hospital or in a nursing home". Again, I emphasise that the healthcare needs of our most mentally handicapped can be very well dealt with in a village community. The document goes on to talk about, specialist health care support to people in … residential care homes". That is also welcome. I assume that that will also apply to village communities.

My final quote from this excellent document is this: The Government seeks to implement policies which are designed to help all sections of society—including elderly people". Of course we all agree with that, and I assume that the mentally handicapped are included. It goes on: whether they are living in their own home or in a residential home. It will continue to look at all suggestions which are made for improvements in this area, as with all policy areas, to see if they are practical and workable". I conclude with a suggestion which I fear is not only practical and workable, but also very urgent. It is that the plan to close the remaining long-stay residential hospitals and to discharge their 16,000 most severely mentally handicapped residents into the community by the end of next year, 1996, should be shelved until the Government complete the survey which has been started by the Department of Health. I trust that it will result in a revision of the department's attitude to village communities. Only thus can those 16,000 of our most unfortunate people face anything but a most uncertain future in the community.

4.40 p.m.

Lord Rix

My Lords, like the noble Lord, Lord Pearson of Rannoch, I, too, must declare an interest as the chairman of MENCAP and as the father of a 44 year-old mentally handicapped, learning disabled daughter. She celebrated her 44th birthday on Sunday, and did so in a MENCAP Homes Foundation house where she is resident with three other people in an ordinary street, in an ordinary part of the outskirts of London.

Unlike the noble Lord, Lord Pearson of Rannoch, I have to say that we are utterly satisfied with the care and attention, love and devotion which is shown to our daughter not only by her co-residents but also by the care staff and the neighbours. As I said, my daughter is 44 years of age. She is virtually incapable of walking—she either uses a frame or a wheelchair. She is virtually blind, having had detached retinas and cataracts. She has been three times in Kingston Hospital and three times in the Moorfields Eye Hospital. At present, she is going through what can only be described as a crisis of menopause which is causing her a great deal of discomfort and mental agitation. But despite all that, she is cared for supremely well in a house which is situated in a street near Twickenham.

As the penultimate speaker before the gap in the list of speakers, I am reminded of the time when I was in demand as an act at charitable midnight matinées. You arrived at 11 p.m. and went on to perform at 3 o'clock in the morning. It was advisable to listen to all the other acts that went on in between, otherwise you would find yourself arriving on the stage at 3 o'clock in the morning telling exactly the same stories which had been told by several other performers prior to your appearance. You either had to re-write your act at the time, or you had to hope that the audience had been largely asleep and that you could blind ahead with what you had originally written. I know that your Lordships are not asleep, but I am going to blind ahead with what was originally written knowing that much of what I intend to say has already been said by other speakers.

I sense a considerable measure of unanimity around the proposition that direct payments are a "good thing". Certainly, I have yet to hear anyone say that they are not a good thing. I sense also a fair measure of agreement that they are not so uniquely a good thing that all our community care eggs should be put in this particular basket. In other words, you can—in this instance at least—have too much of a good thing. I want, if I may, to take a short walk along the frontier between direct payments and more traditional ways of delivering community care support. I do so, knowing that frontiers are sometimes mined!

As I understand it, our present Government take the view that in general it is better that people should spend their own money on making their own choices—because that way you get an efficient and responsive market; and people buy what they want, rather than being given things they do not want by other people who think they ought to want them.

Whatever our personal politics, I think it fair to say that, over a large part of our lives, most of us also like to "buy our own thing"—and count ourselves fortunate to the extent that we can, and unfortunate to the extent that we cannot. That way, we feel in control.

On that line of argument, community care would mean assessing and costing people's needs and wishes, and, as far as possible, giving them the money to satisfy those needs and wishes. The snags, at least at this stage in our development, are that we are locked into old service systems. We do not have the market to deliver choice: people lack information about what we do have; planning might become impossible (it is already often pretty poor); and monitoring extremely difficult. Moreover, I am not at all sure how we would handle cut-backs.

So, I conclude that we are talking in today's debate about one way of doing things and an approach that will probably, in practice, be chosen on quite a small scale. If it works well, it may well grow. However, I also conclude that we are not talking about a tiny minority of people with physical disability and high intellectual ability and business acumen, who can handle the whole process of direct payments from beginning to end with no outside help. There are such people, and I wish them well. But if we do not go wider than that, we are not only ignoring the rights of a wider range of people to have more say in their own affairs; we are also ignoring the evidence that a wider range of people can indeed benefit.

So, perhaps I may outline the sort of scheme that MENCAP and, I believe, our People First partners—Simone Aspis and her colleagues—want to see. It will be a scheme with the following features: no upper or lower age limit for adult beneficiaries; no disability discrimination—specifically the inclusion of people with learning disabilities; provision for the involvement of accountable supporters-advocates, brokers, and so on—who will help people make choices and follow through those choices; and monitoring by the local authority, in conjunction with the beneficiary.

The low expectations that some have of people with learning disabilities are very much the result of the low opportunities with which they have been provided. I have to confess that, 10 years ago, my briefing was all about people with learning disabilities. Now some of it is by them. It was G. K. Chesterton who wrote: If you leave a thing alone you leave it to a torrent of change". Our perception of the capabilities of people with a learning disability may not yet have reached storm proportions—but I trust that the Government will recognise that the waters are rising.

4.46 p.m.

Lord Swinfen

My Lords, I follow two speakers who have shown with excellent examples that, no matter how similar disabilities may appear to be, the care requirements can be totally different depending on the individuals. I should begin by declaring an interest in that I work for John Grooms Association for Disabled People which provides care in the community to people with disabilities in their own homes and which has been, and still is, involved in a number of experimental schemes which incorporate direct payments.

The first time that I heard about direct payments was, I believe, way back in 1984. A young man had been so severely injured that he could not move anything below his neck, but somehow the powers that be were persuaded that he should be allowed to handle his own grants and buy his own care. It was reported to me that the young man said that it made him feel like a human being again. He had his independence and could arrange for his carers to come in when he wanted them and not when the local authority decided. Moreover, he could end his day at whatever time of the evening or night that he wanted and not when the local authority decided was the latest that they were prepared to employ a carer.

We are discussing a major step towards the independence of disabled people—an independence that the rest of us take for granted. The Bill will enable care services to be provided that are tailored to the needs of the individual rather than to the needs of the local authority.

Despite my welcome for the Bill, it is only an enabling Bill. It does not impose a duty on local authorities to make cash payments. There could well be differences in the quality and the way care services are provided in the areas of different authorities, particularly as the local authorities will have the choice of paying the whole or whatever part they think fit of the cost of any service which a person has been assessed as needing. Will that mean that they will give cash for services that are difficult to provide? Do the Government intend to monitor the level of grants to cover different care services provided by different authorities? Will that monitoring take into account the often higher cost of providing services in rural areas? Does the service that is being bought have to be that which the local authority has assessed as being needed, or may the purchaser buy services that are more appropriate to his needs—possibly services that the local authority would not be able or willing to provide'?

In Clause 1(1) the Secretary of State has been given power to specify by regulation who will be eligible to receive direct payments. Surely all those who are capable of managing their own affairs, either on their own or with the assistance of their carers, attorneys, receivers or other advisers, should be eligible. We all take advice on certain aspects of our lives and no one says that we ought not to. Is this the Government's intention? When considering this matter it should be borne in mind that 18 per cent. of those receiving grants from the Independent Living (1993) Fund have learning disabilities. Quite obviously they make their arrangements with the assistance of advisers. If some categories are to be excluded from the scope of this Bill, that should in my view be put on the face of the Bill and not be left to regulations.

Can my noble friend tell us what categories of people under the provisions of Clause 1(3) will be allowed under the proposed regulations to be paid for care services? Will people be allowed to purchase services from their own or neighbouring local authorities? Will they be permitted to pay relatives, many of whom already care for their own disabled parents, children or spouse, often having been forced to give up paid work to do so? What will be the position of friends who live in the same house and who provide care services?

There can be no justification for the exclusion from the scope of direct purchase of care services on grounds only of the identity of the provider. The providers of such services should, however, be regulated so as to meet reasonable standards of service and quality. I welcome the inclusion of Clause 1(4) which allows for the purchase of respite care. That is often needed as much, if not more, by the carer as by the disabled person.

Once this Bill becomes an Act local authorities will still be responsible for ensuring that proper provision is made for the care service for which the recipient of cash payments has been assessed. Will my noble friend ensure that the lessons learnt both by local authorities and voluntary organisations in the so far unofficial and experimental schemes, where direct cash payments have been made for the direct employment of carers by the recipients of care, are circulated to all local authorities and recipients of care as they become employers for the first time? Can my noble friend assure the House that cash payments will be sufficient to enable the care receiving employer to pay for all the expenses involved as an employer such as national insurance contributions, sick pay, employer's liability insurance and compliance with health and safety regulations? Finally, will the recipient of cash for care be able to appeal against the amount that is assessed as adequate to pay for his care? I am delighted that my noble friend has introduced this Bill into the House. I wish it well but I have a feeling that we have a lot of work to do to improve it and to make certain that it will emerge as a fully workable Act.

4.54 p.m.

Baroness Seear

My Lords, the task of winding up on a Bill on which there has been so little disagreement is difficult in a rather unusual way. However, I shall do my best. The Bill has, of course, a somewhat narrow although important theme; namely, the question of direct payments. Perhaps the noble Lord, Lord Pearson, and to some extent the noble Lord, Lord Rix, spoke a little outside the area covered by the Bill when they referred to care in the community as opposed to care in a residential institution or village home.

Before I deal with the main aspects of the Bill, I should say in passing that we should have considerable sympathy with those who raised the issue of the continuing value of a certain kind of care on an institutional or semi-institutional basis. I fancy a good many of us realise that we showed excessive enthusiasm and excessive speed in emptying institutions before we were entirely satisfied that we really understood the needs of the people who had been in those institutions, and for whom we were not—as it turned out—making adequate provision. Although, as I have said, the matter was slightly outside the terms of the Bill, it was valuable that the opportunity was taken once again to raise that point, which a good many people—those of us at any rate with experience in this field in our personal lives—would recognise as being of considerable importance.

I return to the main thrust of the Bill, which is the subject of discussion this afternoon. I suppose that some of us at any rate enjoyed, as I did, that great comedienne, Thora Hird, in the radio performance "The Cracker Under the Sofa". If this Bill had been in operation, the person who provided the so-called help in that performance would never have darkened the door of Thora Hird again. Anyone who put her in the situation depicted in "The Cracker Under the Sofa" would have recognised that that kind of help had disappeared without trace.

The point is that the Bill gives the person who is receiving the help control over the help that is being given. There is no doubt at all that it is the person who pays the piper who calls the tune. Too many people who have received help through local authorities have never been in a position to call the tune. What is worse than that, because they have been so dependent on the help being given, they have not even dared to mention to those who pay the piper their criticisms and dissatisfactions with the service that they have received. Many of us who met such people realised how vulnerable they were as they were not the employer. They were the recipients of services which were paid for by someone else.

To that extent—it is a considerable extent—we obviously greatly welcome this change. It is something for which many of us have pressed for a long time. As has been said on all sides of your Lordships' House today, we are glad that the Government have brought forward this Bill at this time.

However, I very much echo those who say that there is a long way to go before we shall really understand how to make this measure work properly. I shall deal with the first and obvious point; namely, will there be enough money to pay for adequate services? There is bound to be a temptation, if one allocates money to allow people to buy services, that little by little and inch by inch this is done as cheaply as possible. However, that would be a false economy in this field. There must be sufficient money available to provide these services. Indeed there ought to be more money available for the direct service than there has been in the past, because the overheads will surely be lower. However, as I hope I shall show in a moment, there should still be continuing overheads—although these will not be as large as they have been in the past—to deal with the issues which will arise in bringing into being and in operating the direct payments scheme.

We must recognise that not everyone will want this provision. Many will want it and it is right that they should. However, it is right—nothing would induce me to refer to a level playing field! —that there should be absolutely free choice as to whether one wishes to continue with a local authority service or whether one wishes to have the right to buy the service oneself. Some people will prefer to have the service provided by the local authority. It is their right to choose that option, and it should be available if that is what they want. Therefore, we are not moving from provision by the local authority to a system whereby people receive the money and buy the care for themselves, although perhaps before long that will be assumed to be the normal way of doing things.

Other noble Lords have raised these points in passing or touched on them. I understood the noble Baroness, Lady Cumberlege, to say that payments would not be available to the existing informal carers. I can understand why she said that, but I can see a great many difficulties arising as a result. If an informal carer who is providing the service at present becomes aware that money is available for that service to be provided by somebody else, his or her reaction is likely to be to find something more interesting, attractive and remunerative to do outside the house and to enable the person for whom he or she is caring to get the money to buy the services which up to now have been provided free by the informal carer. Given the burdens that are placed on informal carers at present, and the large amount of money that informal carers are saving the community, I should not like it to be thought that any such change is to be turned down without consideration.

It may be right that in the future the informal carers who have been carrying the burden at great cost to themselves should be free to say, "Now that money is available for the service to be provided, I wish to return to my job, part-time or full-time, and payment can be made for someone to do what I have been doing up till now". This is certainly a matter which will have to be made very clear, because it will crop up very quickly. There are some 6 million informal carers and this point is not going to escape their attention. We should very much like to know what comments the noble Baroness has to make on that point. However, perhaps I misunderstood what she said on that subject.

It is not only the position of the people being looked after and their carers which needs consideration. There is also the very important question of the people who will provide the services. Being an employer is an increasingly complicated process. It is likely that an employee who is brought in to do the work will be working for six hours a week for six different people. The mind boggles at the complications in terms of employment law in such a process. Most employers of people who are employed on short-time work in domestic institutions—and I dare say this applies to some in your Lordships' House—do not fully conform with employment law at present: they do not provide all the safeguards, contributions and rights which would apply if the person were employed in a factory. Often National Insurance is not paid, pension rights are not protected, and all the rest of it. If there is to be a large-scale development in terms of people being employed in other people's homes on a short-term basis, involving a large number of different employers, we have to have a carefully designed system which will ensure that those employees are employed on a proper basis and their legal rights are adequately protected. I do not see anything in the Bill which suggests that that will be the case. To take it for granted that it will happen is cloud-cuckoo-land. It will not unless provision is made to ensure that it does.

A further issue connected with the employee is the quality of that employee. This raises an issue which has been discussed a number of times in your Lordships' House; namely, the need for a register of people who will provide services of this kind. I speak as the President of the Institute of Domiciliary Carers. Good carers in this field—people who provide services in a responsible way—would like a register. They are all too aware that cowboys appear as soon as there is an opportunity of this kind. Those cowboys will be exploiting a particularly exploitable part of the labour market. Unless there is some way of controlling the quality of the people who will do the work, the exploitation is likely to be serious. We must reconsider the Hinchliffe Bill which was talked out or defeated in another place on a previous occasion. The issue has not gone away. This Bill makes it even more important that we revive it.

Those are just some of the many issues which need to be considered. Therefore, it is good news that the Government intend initially to pilot the introduction of the scheme, to monitor it closely, to learn from that monitoring, and then to spread the scheme throughout the country as a whole, because it is basically an extremely good programme.

5.5 p.m.

Baroness Cumberlege

My Lords, I very much welcome the strong and universal support expressed by your Lordships for the principles of the Bill, even if some noble Lords said that it had been a little late in coming. I sense a very different atmosphere from that which I experienced on the last occasion, when I felt, despite the courtesy and generosity of your Lordships' House, that there was a wish to shoot the messenger.

This is a measure which will make a real difference to the lives of many people who need community care services. Direct payments will place the crucial decisions about how care is delivered in the hands of the person being cared for. I understand many of the anxieties that have been expressed this evening, particularly those expressed by the noble Baroness, Lady Hollis, the noble Baroness, Lady Hamwee, and my noble friend Lord Swinfen, who feel that perhaps the Bill has not gone far enough and there is an issue of power versus duty. However, we feel that it would be wrong to compel local authorities to offer direct payments. That view was shared and supported by the noble Baroness, Lady Darcy (de Knayth).

The reasons are these. This is a very new scheme. Local authorities will need to find ways of satisfying themselves that an individual will he able to manage direct payments and that the arrangements they make are adequate for their needs. Experience with the independent living funds and with payment schemes operated by voluntary organisations will, of course, be useful, but direct payments have not previously been part of mainstream community care. Local authorities are moving at different speeds in the implementation of the community care reforms which were introduced only in 1993. Some are making great advances but others are struggling even with their current responsibilities. It would be in nobody's interest, least of all those who receive direct payments, if we instructed local authorities to introduce these payments for everyone, regardless of their ability to manage, and then they were unable to make a success of the scheme.

Baroness Hollis of Heigham

My Lords, I thank the noble Baroness for giving way. I listened very closely to the debate, and I do not think that anybody argued that at all. Perhaps there has been some misunderstanding. The position that some of us sought to argue was not that local authorities should not exercise their discretion—although it should not be unreasonably exercised—but we were concerned about the Secretary of State's intention to limit the discretion of local authorities by restricting the eligibility of certain groups in advance.

Baroness Cumberlege

My Lords, that is the second point that I shall address. If I understood my noble friend Lord Swinfen correctly, he wanted this to be a universal requirement on local authorities since he was worried about the unevenness that there might be across the country.

The noble Baroness, Lady Hollis, is right that others are concerned about restricting the eligibility of different client groups, and many noble Lords expressed anxieties about that matter. That will be very much part of the consultation exercise that we shall undertake, and we shall consider it seriously when we receive the results of that consultation. We shall not be denying any group access to care. They will still receive that through the social services. What we are talking about here is access to direct payments. I understand the points made by the noble Baroness, Lady Darcy (de Knayth). But not to limit the client group would raise unrealistic expectations of what can be achieved in the short term and might, indeed, put the whole scheme of direct payments at risk.

This Bill is not about discrimination against certain groups of people. We are not prejudging who will be able to manage direct payments. We are simply saying that there are good reasons for starting small. As I said, we shall be consulting on which groups should be included and we will take account of the points raised.

My noble friend Lord Campbell of Croy asked about the extent of the regulations, as did my noble friend Lord Swinfen in suggesting that the eligibility restriction should be on the face of the Bill. We feel that defining it in regulations will ensure that it can be changed in the light of experience, without the need to amend primary legislation. That is why we feel it is more appropriate to have this in regulations rather than on the face of the Bill. I have had the advantage of seeing the results of the scrutiny committee to which my noble friend referred, but perhaps it will be more appropriate to discuss that in Committee when other Members of your Lordships' House have also had a chance to look at it.

Many noble Lords raised the question of resources. Local authorities will make direct payments only where they would otherwise have been providing or purchasing services for an individual. We are, of course, giving them a new power which they have been asking for. It will give them more flexibility in how they fulfil their existing community care responsibilities.

I do not accept that social services departments lack the resources that they need in order to use this new power. Just a week ago my right honourable friend the Secretary of State for Health announced that local authorities are to receive an extra £418 million to fund community care services in 1996–97. The money will be ring-fenced and it cannot be used for any purpose except community care. That will be the fourth tranche of extra money that has been provided since the start of the new community care policy. It will bring the total extra resources for community care to £2¼ billion since 1993–94, so just in six years since the start of this decade we will have doubled in real terms the amount of money provided for community care.

In Scotland, the final figures for 1996–97 have yet to be announced, but local authorities can expect to receive nearly £40 million extra for these services, with further allowance for the care gap and infrastructure costs. That will bring the total extra resources for community care in Scotland to £280 million since 1993–94.

These are substantial increases by any standards and amply demonstrate the Government's commitment to funding this new policy fairly. I doubt whether any other area of government spending can boast increases on that scale. But it will not stop there. We plan to inject still more funds in subsequent years, and by 1998–99 the total extra resources will rise to nearly £3 billion. So for every £1 spent on community care at the start of this decade, we plan to provide £3 by the end of the decade.

I can assure my noble friend Lord Swinfen and the noble Baroness, Lady Seear, that local authorities will make direct payments only with the individual's consent. Local authorities will not be able to force them to accept cash for services that local authorities would rather not provide directly. So there really is a voluntary element here. It is up to people to decide whether they want to receive these payments.

The noble Baronesses, Lady Darcy (de Knayth) and Lady Hollis, and other noble Lords asked about the relationship between the independent living fund and the Bill. The extension fund of the independent living fund is a closed fund which now supports about 14,000 clients. That support will continue regardless of whether those clients continue to receive community care services or begin to receive direct payments in lieu of those services. The second fund, the independent living 1993 fund, is open to new clients. It will continue to be available to severely disabled people on the same basis, whether they choose direct payments, community care services or a mixture of both. The existence of the independent living funds does not make direct payments unnecessary. Direct payments will substitute for community care services which would otherwise be arranged by the local authority. Cash payments from the independent living funds complement the local authority's provision and support independent living for a particular group of the most severely disabled people. Direct payments will be a part of mainstream provision.

The noble Baronesses, Lady Hollis and Lady Darcy (de Knayth), also asked how charging would work. How should local authorities decide how much to charge? This will be for the local authorities to decide, just as they currently decide how to charge for domiciliary services. Then there was the question of how charging would work. Will the charge be deducted at source or will someone pay a charge? The Bill's provision is that the payment would be made net of the financial contribution the individual makes. This, we feel, is much less bureaucratic than giving a sum of money, only to require some of it to be returned later.

The noble Baroness, Lady Hollis, asked about floors and ceilings. Again, we will leave that to local authorities to decide. But I can assure her that other cash benefits through the social security system will not be affected, and nor will the principles embodied in the National Health Service. Direct payments will be made available only in lieu of community care services which would otherwise have been arranged by the local authority, not for continuing health care, which is a health authority responsibility.

The noble Lord, Lord Addington, felt that there was a need for very comprehensive support services. We intend to put out guidance and that will stress the importance of support services. We shall be interested to hear about current good practice so that that can be incorporated in the guidance that we put out.

The question was also raised by the noble Baroness, Lady Hamwee, as to whether people will be able to use direct payments to buy community care services from local authorities. People who receive direct payments will not be able to use them to purchase services from local authorities because local authorities are not permitted to sell services in that way. However, if someone wishes to receive services from a local authority, they can choose to receive those services instead of direct payments. They can also receive a mixture of services and direct payments. So direct payments do not create a bias against local authority provision.

There was also concern that local authorities would leave people to sink or swim and not give them the support that perhaps they need when they enter the scheme. But a local authority which makes direct payments to someone will not then be able to wash its hands of that person. It will certainly not make direct payments to someone who does not feel able to manage. As I said earlier, the person's consent is crucial.

Individuals receiving direct payments should make reasonable back-up arrangements to cope with emergencies—for example, if their personal assistant simply does not turn up one day. But if the needs the direct payments are intended to cover are not met by their own arrangements in an emergency or for any other reason, the local authority will have a responsibility to step in and arrange the services. Of course, if a local authority is being asked to step in, it may well decide to look again at whether the individual can manage the direct payments scheme.

The noble Baroness, Lady Hamwee, asked about the regulation of providers of domestic care. We do not propose to use the regulation-making power in Clause 1(3) significantly to restrict the individual's choice of provider. This Bill is a measure to give users more choice and control. What many of the disabled people who have been calling for this legislation want to do is to use direct payments to employ their own personal assistants. We would not want to exclude that alternative. Each local authority will have to decide what monitoring arrangements it puts in place to be absolutely sure that the needs to which direct payments relate are being met. The local authority will have a responsibility to step in, as I said, and arrange services if the arrangements which someone makes using their direct payments are not adequate to meet their needs.

The noble Baroness, Lady Darcy (de Knayth), asked whether payments will include an allowance for administration. That will be a matter for local authorities.

My noble friend Lord Campbell of Croy was very anxious to ensure that we review the scheme and how it is working. Local authorities must publish community care plans; from April 1996 they should publish community care charters. We would expect local authorities to use plans and charters to give information on direct payments.

My noble friend also asked whether we intended to have pilot schemes. We do not intend to run pilots in the geographical sense; all local authorities will be able to offer direct payments. He also asked whether in this Bill the definition of "community care services" and "disabled people" would be different from the definition in other legislation. Clause 1A explains that the definition of "community care services" is the same as in the National Health Service and Community Care Act 1990. We have not offered a definition of "disabled people", but if we did we would ensure that it was consistent with existing legislation.

The noble Baroness, Lady Seear, asked whether it was fair to exclude informal carers from receiving these payments. We believe that excluding informal carers from being paid to provide care using direct payments does not mean that we do not recognise their role. It is a very, very important one. But it is different from that of paid employees who provide care on a formal contractual basis. Direct payments will be an alternative to services that people would otherwise receive from the local authority and, as I said in my opening remarks, they are not to replace existing support networks within families and communities. We do not want to create pressure for families to formalise informal arrangements. We feel that it would be bound to place relationships under strain. Existing support for informal carers is more appropriate to their role and their relationship to the person for whom they care.

The noble Baroness also asked whether we intended to give people assistance in their role as employer. As I said, we shall be issuing guidance to ensure that people are aware of their responsibilities as employers. I am sure that the local authorities will wish to help those who are undertaking this new responsibility.

My noble friend Lord Pearson raised the whole question of choice and village communities. Perhaps I should explain that we intend to use the regulation-making power in subsection (4) of Clause 1 to exclude the use of direct payments to pay for permanent residential care. We feel that suitable arrangements to provide choice in permanent residential care are already in place; to make direct payments available for this purpose would simply add to the bureaucracy. That is the same for all client groups.

I know that my noble friend is very concerned about the lack of choice, as he sees it, being offered by local authorities. We have a direction on choice. If people feel very frustrated by that and feel it is not working, especially with regard to village communities, they have a right to use the complaints procedures. But, as I think the noble Lord knows, we are having an evaluation at the moment to examine the various forms of residential provision, including that in village communities. Indeed, the booklet, Made to Care, that my noble friend quoted is very much part of that review. The whole review will be completed in about six months' time.

My noble friend Lord Pearson also asked about authorities flouting the 85 per cent. rule. All local authorities are required to submit to the Department of Health returns on their compliance with the 85 per cent. rule. These returns are audited by the independent and expert district auditors. For 1993–94, the only year for which audited returns are yet available, almost all authorities met the 85 per cent. condition. The Secretary of State is considering whether to take action in regard to those that did not.

The noble Lord, Lord Rix, asked whether the families of people with learning disabilities would be able to manage direct payments on their behalf. Direct payments are intended to give the user more control over the way in which care is met. This benefit will not be realised unless the user is in control of the direct payments, but there is no reason why they should not get help from their families or others in managing the payments.

We have said that we will consult on the detail to be contained in the regulations under this Bill. As I said earlier, that consultation paper will be published shortly. Many of the issues raised in this debate will be considered further during the consultation and no doubt throughout the Committee stages. Whatever our conclusions at this stage on those issues, the power to specify these points of detail in regulations will enable us to adjust the framework for direct payments in the light of experience.

I wish to conclude, not with my words but with the words of those involved with existing payment schemes. Terry Butler, Director of Social Services in Hampshire, said of the scheme that his council has operated for over 10 years: I get more positive comments from users about this programme than from almost any other service we provide … In addition, I can provide more direct care per pound spent on the payments programme than other services". That endorses the views expressed by noble Lords this afternoon that the scheme does provide good value. One of the many people who have benefited from the scheme in Hampshire, Liz Briggs, said: This gives me choice over my life, I am in control of my daily living. As a disabled person you lose so much of this, the scheme has given it back to me. I now have a quality of life". On Question, Bill read a second time, and committed to a Committee of the Whole House.