§ 6.43 p.m.
§ Bill read a third time.
§ Clause 1 [Direct payments]:
§ Baroness Hollis of Heigham moved Amendment No. 1:
Page 1, line 11, at beginning insert ("subject to subsection (7)").
§ The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 4 and 5 which are grouped with it. These amendments are about eligibility. I believe that we all support the Bill. We all believe that the disabled person should be at the centre of the care system and not dependent on it, each and every day able to exercise the kind of choices that each of us as an individual takes for granted. However, I simply do not understand why that right to choose direct payment and to exercise choice should be confined, as the Government intend, to only a small proportion of disabled people; namely, those with physical disabilities under the age of 65.
§ It is an issue about rights, choices and local judgment. We on these Benches believe that all disabled people who want and are able to benefit from direct payment—cash rather than services in kind—whatever their ability and whatever their age, should be eligible for it. The amendment would cost the Government absolutely 1032 nothing. It would do what disabled people and disability organisations led by DIG and the British council for disabled people as well as local authorities all want.
§ So why have the Government resisted the proposal? It cannot be on grounds of cost because the amendment is probably cost neutral and would probably save money for the local authorities. It is not about cost. It cannot be because there is no demand for it. Existing third party schemes already include people with learning disabilities, some of those over 65 whom the Government would exclude. It cannot be that local authorities would be overwhelmed because only a small proportion of disabled people, probably younger ones, are likely in any case to prefer direct payments. Indeed, we shall probably need campaigns to encourage people to take up direct payments rather than use efforts to limit them. It cannot be because it is too onerous for local authorities. The entire scheme is in any case discretionary. Local authorities will not start the scheme unless they feel that there is local demand and are confident about their own competence to do so.
§ If local authorities are competent to have the local decision in their judgment and if local authorities are to be entrusted with the discretion as to whether they should set up the scheme, why do we refuse them the lesser discretion as to who should be eligible within it? It cannot be that all local authorities must progress in the same way, at the same time and at the same pace. That cannot happen. Already some 60 local authorities run direct payment schemes and are several years ahead in terms of experience compared with other local authorities. Are we to hold them back until others catch up? Why? Why not benefit from their experience? Why not benefit from pluralism and let both central government and local government learn from the experience and practice of those already more experienced?
§ What other arguments can the Government produce against the amendment? It cannot be that the Government seek to avoid a patchwork of provision. Whether or not the Government accept the amendment, there will be a patchwork of provision on the ground. Some local authorities will set up direct payment schemes as well as maintaining third party schemes. Others will stick with only third party schemes. Others may offer vouchers. Others may limit direct payments to those receiving ILF moneys. Others may do nothing at all. Any, all or a combination of those arrangements will be possible. There will be a patchwork but instead of regarding that as a source of weakness, let us see it as a source of strength.
§ What other final argument can the Government have? It cannot be that central government will not trust local authority discretion. Entire social work departments each and every day are trusted by the Government to make far more significant decisions—for example, about removing a child from a family. As I said, the Government allow the local authority to make the big decision as to whether to run a scheme at all. Why, then, do the Government refuse the local authority the right to make the lesser decision as to who will be eligible? There are all sorts of decisions that local government will have to make about the scheme. They will have to 1033 decide whether to have a scheme, decide the charging policies and decide whether to set up advice and support packages. Why should not they also decide the eligibility according to their own local experience on the ground?
§ The amendment is a win-win amendment. It costs the Government nothing. But the Government gain from the experience on the ground. It costs the local authorities nothing; they will save money. But it facilitates choice for disabled people and is supported by disability organisations. Even at this very late stage I hope the Government will accept that there is no good or decent ground for denying disabled people who have learning difficulties or disabled people over the age of 65 the opportunity of taking advantage of direct payments. I beg to move.
Lord Campbell of Croy
My Lords, as explained by the noble Baroness, Lady Hollis, her three amendments would have the effect of widening the range of categories of disabled people to be included in the new direct payments system in the first stage when the Bill becomes enacted. As noble Lords will be aware, I have applauded the Government for bringing in the scheme by stages. I thought that was wise. It is a matter of forecasting. The noble Baroness said today—I had not heard her say it before—that she thought comparatively few disabled people would apply and that they would be among the younger ones. My feeling is that the new community care system is now under strain in parts of the country. It is not just a question of how much money is available from central government. It is not wise to load local authorities, even though it is a discretionary scheme, with too much more immediately.
I have in the past encouraged the Government to introduce the scheme by stages so that certain client groups—certain categories of disabled people—will be dealt with under the Bill when it is first enacted. I ask my noble friend Lady Cumberlege to confirm that it is the Government's intention, once the Bill is enacted, to extend its terms to other categories in due course when it is clear that the new system of direct payments is working efficiently and effectively. If that is the case, I would certainly hope to keep the Bill in its present form.
§ Lord Addington
My Lords, these amendments just ask the Government to allow local authorities to do within the rules what they have been doing outside the rules in many cases. There are no real cost implications as direct payments seem to save money—that is the evidence so far—rather than create the need for extra expenditure.
The noble Lord, Lord Campbell of Croy, referred to bringing in the scheme in stages. The amendment merely says that the people who are administering the scheme should be allowed to bring it in at their own pace for themselves and those they are administering it for. Everything said by the noble Lord, Lord Campbell of Croy, is taken care of by the amendment. It merely enables the scheme to become available more quickly to those who want it and to be administered by those who are ready for it. Nothing of a radical nature is suggested here. If we all want the scheme to work surely we should let those who are to implement it decide how they implement 1034 it. There is nothing radical suggested here. We want merely to allow those who are to run the scheme—those who are going to drive—have the wheel.
§ Baroness Hamwee
My Lords, when the Minister responds to the amendment, I ask her to bear in mind one simple point. The amendment directly addresses the issue of partnership between the service providers, on which the success of community care crucially depends.
§ Baroness Cumberlege
My Lords, the noble Baroness, Lady Hollis, has gone to enormous lengths to find a form of words which will meet two goals; first, to allow those local authorities which can manage to do so, to have discretion over the client group; secondly, to avoid the risk of overwhelming those authorities which are less able to cope. But I am afraid that her amendment still does not meet the concern that I expressed at Report stage that where direct payments are available they should be offered to a limited group but still on a national basis.
I have spoken ad nauseam on the need to see how things go so that we can judge whether the national framework needs to be adjusted. We accept that by giving local authorities discretion, as we are, variations are introduced—a patchwork, as the noble Baroness said today and the noble Lord, Lord Carter, has said in previous debates. But this amendment will create variations not only in terms of geography but also in terms of groups which are eligible. The more that we allow the differences, the more the Government lose their capacity to judge how direct payments are working nationally and overall.
During the course of the passage of the Bill I have listened carefully to the particular concerns that have been expressed in previous debates by the noble Lord, Lord Rix, and the noble Baroness, Lady Darcy (de Knayth), over the eligibility of people with learning disabilities who are not also physically disabled. I have given them some assurances that I should like to repeat now so that the words are in Hansard. Those with learning disabilities would be included in option B, paragraph 15 of the consultation paper. We will consider carefully, before reaching a final decision on eligibility, the responses to the consultation exercise, the views expressed in your Lordships' House and the fact that this House divided so narrowly on this issue.
As we have already said, we will consider particularly carefully whether all people with learning disabilities under the age of 65 should be included in the initial eligible group and we intend to keep the eligible group under review, as suggested by my noble friend Lord Campbell of Croy. As the eligible group is to be specified in regulations, we will be able to expand it in the future, if we think that is appropriate, without amending primary legislation.
We also remain unconvinced about 'the way in which this amendment would work in practice. The amendment would require regular consideration and much updating of the regulations. In this respect the amendment is even more cumbersome than that tabled at Report stage. The Secretary of State would still require large amounts of information to enable him to 1035 form a judgment about each local authority which wished to expand its eligible group, and if necessary to defend that judgment in Parliament.
I recognise what the noble Baroness, Lady Hollis, is seeking to achieve in this amendment. But the amendment goes no further to meet our wider concerns than the amendment which your Lordships rejected at Report stage. I therefore hope the noble Baroness will not choose to divide the House.
§ Baroness Hollis of Heigham
My Lords, I thank all those who have taken part in this brief debate. Perhaps I may comment on the remarks of the noble Lord, Lord Campbell of Croy, although the noble Lord, Lord Addington, has already done this for us admirably. The noble Lord suggested that community care was under strain now and that it would be unwise to add to the problems and burdens. If we were doing the opposite of what the amendment suggests—in other words, if we currently paid people cash and the Opposition Benches were proposing instead to move onto services—the noble Lord, Lord Campbell, would be absolutely right—we would be increasing the workload of local authorities as they would have to do the work in-house. However, the reverse is true. The amendment seeks to allow local authorities to offload, if I may put it that way, onto disabled people the responsibility for administering those services which otherwise the local authorities would have to administer. The amendment therefore reduces the workload and makes it more possible to deliver the objectives of care in the community which we all want. Therefore, I believe that the noble Lord's point is inappropriate.
Lord Campbell of Croy
My Lords, I am grateful to the noble Baroness for giving way. It is not so much a question of what the load will be eventually as bringing in a new system. The local authorities will have to get down to bringing in a new system on top of the community care responsibilities which they have at the moment. We all hope that once it has settled down and direct payments are going to individual disabled people there will be less of a load. But it is the burdening of them with a new system that I was talking about.
§ Baroness Hollis of Heigham
My Lords, again I believe that the noble Lord, Lord Campbell of Croy, has overlooked the fact that at the moment something like 60 local authorities run direct payment schemes already—
§ Baroness Hollis of Heigham
— and they often make payments to people with learning difficulties and those over 65 years of age. If this amendment is not accepted and those groups have to remain outside the national scheme, that same local authority will be introducing a direct payment scheme of its own to fit the Government category and have to keep in place a second scheme, which is the third party scheme, to cope with the additional people. Therefore, if the noble Lord, Lord Campbell of Croy, is concerned about the load on local authorities, they would be allowed to make that decision 1036 locally so that they are not forced into running two schemes in parallel, because the Government will not allow them to bring the two schemes together into one where it best suits local circumstances. I repeat that if this amendment is not accepted, the workload on local authorities will not be reduced but, on the contrary, increased.
I was very sorry that the Minister repeated her objections. Her basic argument is that the Government wish to go slowly to see how things go. One cannot tell how things will go unless there are also pilot schemes which pioneer and from which one can learn. We have said time and again that very often one of the difficulties with social security legislation is that it is nationwide and one never gets any pioneering or piloting or feedback in order that one can learn from experience and experiment. The amendment would allow central government and local authorities to learn from other people's best practice.
Finally, the Minister suggested that she hoped to bring people with learning difficulties into the scheme as soon as she felt that local authorities could do so. The amendment that was so narrowly defeated in this House would also have brought those over the age of 65 within the scheme, and not just those with learning difficulties. They would remain the largest groups, many of whom would welcome, want, need and benefit from it. For those groups in particular I seek the opinion of the House.
§ 7.2 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 100; Not-Contents, 113.1038
|Division No. 1|
|Acton, L.||Grey, E.|
|Addington, L.||Hamwee, B. [Teller.]|
|Archer of Sandwell, L.||Harris of Greenwich, L.|
|Ashley of Stoke, L.||Haskel, L.|
|Beaumont of Whitley, L.||Hayman, B.|
|Berkeley, L.||Healey, L.|
|Birk, B.||Hollis of Heigham, B.|
|Blease, L.||Howie of Troon, L.|
|Borrie, L.||Hughes, L.|
|Broadbridge, L.||Irvine of Lairg, L.|
|Bruce of Donington, L.||Jeger, B.|
|Carmichael of Kelvingrove, L.||Jenkins of Hillhead, L.|
|Carter, L.||Jenkins of Putney, L.|
|Clinton-Davis, L.||Judd, L.|
|Cocks of Hartcliffe, L||Kennet, L.|
|Craigavon, V.||Kilbracken, L.|
|David, B.||Kinloss, Ly.|
|Dean of Beswick, L.||Kirkhill, L.|
|Desai, L.||Lester of Herne Hill, L.|
|Diamond, L.||Lovell-Davis, L.|
|Dormand of Easington, L.||Macaulay of Bragar, L.|
|Dubs, L.||McGregor of Durris, L.|
|Ezra, L.||McIntosh of Haringey, L.|
|Falkender, B.||Mackie of Benshie, L.|
|Falkland, V.||McNair, L.|
|Farrington of Ribbleton, B.||McNally, L.|
|Fisher of Rednal, B.||Mallalieu, B.|
|Geraint, L.||Mar and Kellie, E.|
|Gladwin of Clee, L.||Masham of Ilton, B.|
|Graham of Edmonton, L. [Teller.]||Mason of Barnsley, L.|
|Mayhew, L.||Sefton of Garston, L.|
|Merlyn-Rees, L.||Serota, B.|
|Milner of Leeds, L.||Sewel, L.|
|Mishcon, L.||Stedman, B.|
|Monkswell, L.||Stoddart of Swindon, L.|
|Morris of Castle Morris, L.||Strabolgi, L.|
|Murray of Epping Forest, L.||Taverne, L.|
|Nicol, B.||Taylor of Gryfe, L.|
|Ogmore, L.||Thomson of Monifieth, L.|
|Palmer, L.||Tope, L.|
|Pearson of Rannoch, L.||Tordoff, L.|
|Peston, L.||Turner of Camden, B.|
|Ponsonby of Shulbrede, L.||Varley, L.|
|Prys-Davies, L.||Wedderburn of Charlton, L.|
|Rea, L.||Whaddon, L.|
|Redesdale, L.||White, B.|
|Richard, L.||Williams of Crosby, B.|
|Rochester, L.||Williams of Elvel, L.|
|Rodgers of Quarry Bank, L.||Winston, L.|
|Russell, E.||Young of Dartington, L.|
|Aberdare, L.||Hardwicke, E.|
|Addison, V.||Harmar-Nicholls, L.|
|Aldington, L.||Hemphill, L.|
|Archer of Weston-Super-Mare, L.||Henley, L.|
|Ashbourne, L.||HolmPatrick, L.|
|Astor of Hever, L.||Hothfield, L.|
|Barber, L.||Howe, E.|
|Belhaven and Stenton, L.||Inglewood, L.|
|Beloff, L.||Kenilworth, L.|
|Birdwood, L.||Kimball, L.|
|Blaker, L.||Kinnoull, E.|
|Blatch, B.||Leigh, L.|
|Bowness, L.||Lindsay, E.|
|Brabazon of Tara, L.||Lindsey and Abingdon, E.|
|Brigstocke, B.||Long, V.|
|Brougham and Vaux, L.||Lucas, L.|
|Burnham, L.||Lucas of Chilworth, L.|
|Cadman, L.||Lyell, L.|
|Campbell of Alloway, L.||McColl of Dulwich, L.|
|Campbell of Croy, L.||Mackay of Ardbrecknish.|
|Carnegy of Lour, B.||Mackay of Clashfem, L. [Lord Chancellor.]|
|Chesharn, L. [Teller.]||Marlesford, L.|
|Clanwilliam, E.||Massereene and Ferrard, V.|
|Clark of Kempston, L.||Miller of Hendon, B.|
|Colwyn, L.||Mountevans, L.|
|Courtown, E.||Munster, E.|
|Cox, B.||Napier and Ettrick, L.|
|Craigmyle, L.||Norfolk, D.|
|Cranbome, V. [Lord Privy Seal.]||Northesk, E.|
|Crathome, L.||Orr-Ewing, L.|
|Cross, V.||Park of Monmouth, B.|
|Cumberlege, B.||Peel, E.|
|Dean of Harptree, L.||Pender, L.|
|Dixon-Smith, L.||Peyton of Yeovil, L.|
|Dundonald, E.||Prior, L.|
|Eccles of Moulton, B.||Rankeillour, L.|
|Eden of Winton, L.||Reay, L.|
|Elles, B.||Rees, L.|
|Elton, L.||Rennell, L.|
|Faithfull, B.||Renton, L.|
|Ferrers, E.||St John of Fawsley, L.|
|Finsberg, L.||Saltoun of Abernethy, Ly.|
|Flather, B.||Seccombe, B.|
|Fraser of Carmyllie, L.||Shaw of Northstead, L.|
|Gardner of Parkes, B.||Skelmersdale, L.|
|Gilmour of Craigmillar, L.||Stewartby, L.|
|Gisborough, L.||Stodart of Leaston, L.|
|Glentoran, L.||Strange, B.|
|Gray of Contin, L.||Strathcarron, L.|
|Grimston of Westbury, L.||Strathclyde, L. [Teller.]|
|Hamilton of Dalzell, L.||Teviot, L.|
|Harding of Petherton, L.||Tollemache, L.|
|Torrington, V.||Vinson, L.|
|Trumpington, B.||Wilcox, B.|
|Tugendhat, L.||Wynford, L.|
|Ullswater, V.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 7.9 p.m.
§ Baroness Hollis of Heigham moved Amendment No. 2:
Page 1, line 19, at end insert ("in such a manner which, had the authority provided a service, would be subject to section 17 of the Health and Social Services and Social Security Adjudication Act 1983.").
§ The noble Baroness said: My Lords, this amendment returns us to the issue of the level playing field. I am sorry to revisit this again and to take up the time of the House; but whenever we have tried to raise this matter the Minister has said that such an amendment is not necessary, whereas the professionals, those who actually deliver the policy, believe that it is necessary. I hope that this time we may be able to persuade the Minister.
§ The purpose of the amendment is to ensure that the charging policy that currently applies in a local authority in respect of services should apply equally within the local authority with regard to direct payments. On Report the Minister made it clear that she entirely agreed with the argument behind the amendment: that those who receive direct payments should not be treated any less favourably than others. At the moment, a local authority may offer free services, may make a flat charge or use a means test. We hope that whatever the local authority does in respect of services, the provision for direct payments should be identical otherwise there is a perverse financial incentive to move from one to the other rather than to make the decision on the merits of the case.
§ The origins of charging are in the Health and Social Services and Social Security Adjudications Act 1983 which makes it clear that local authorities may take into account a person's ability to pay where it is "reasonably practicable" to do so. The phrase "reasonably practicable" in the 1983 Act has determined local authorities' charging policy for services. However, this Bill does not contain the phrase "reasonably practicable"; instead there is the phrase, "taking financial means into account". However one looks at it, that phrase implies a means test, whereas the law that frames services does not. Therefore, it appears that a local authority must means test whether or not it wants to do so.
§ If that is not what the Minister means to happen, the Bill is sending out the wrong signals. The Minister said on Report that if the Government were sending out the wrong signals, they would correct those wrong signals by sending out Section 7 guidance. Why? Why send out guidance to correct ambiguous wording in a Bill when you can clarify the wording of the Bill and avoid the need to send out guidance? The Bill should say what it means and should be capable of being clearly understood. How can we make the Bill clear? We could include in this Act identical wording to that in the 1983 Act, which is what we tried to persuade the Minister to 1039 accept in Committee and on Report. Alternatively, as the amendment suggests, we could refer back to the 1983 Act. Either way would stop the Bill sending out the wrong signals.
§ It is no use the Minister saying that the words mean the same. She may mean them to mean the same, but if when reading them people do not understand them as meaning the same, the Bill is sending out the wrong signals. The disability organisations are most concerned about that. If there is no difference between the Minister and these Benches on the intention, why are the Government resisting changing the words? At worst, to do so is harmless; at best, it makes the situation clear beyond all doubt. Why leave in an ambiguity— and ambiguity there is because people outside this House are confused— when you can clarify the position on the face of the Bill? I beg to move.
§ Baroness Cumberlege
My Lords, the Government intend that neither those receiving direct payments nor those receiving services should be treated more favourably than the other in the question of the financial contribution that they make towards the cost of their care.
As drafted, the Bill gives local authorities the discretion on whether or not to take someone's financial circumstances into account. It also gives them discretion on how to take someone's financial circumstances into account, provided they do not act unreasonably and ask someone to make a greater contribution than they can afford.
I have explained the Government's intention to issue guidance on this matter under Section 7 of the Local Authority Social Services Act 1970. The guidance will stress that local authorities must treat people fairly. The noble Baroness, Lady Hollis, has made clear her wish to see a provision on the face of the Bill which would render the guidance unnecessary.
However, the amendment does not achieve that aim. It would require local authorities to act as if their assessment of how much someone should contribute to the cost of their care were subject to Section 17 of the Health and Social Services and Social Security Adjudications Act 1983. But Section 17 allows local authorities a great deal of discretion over their charging policies. What this amendment does not do is to require authorities to reach the same or similar result as they would if that person had been receiving the equivalent services. So in order to ensure that there is a level playing field, we would still need to issue the guidance I have described. That is the most appropriate and effective way of achieving the effect we all want to see.
The noble Baroness, Lady Hollis, has raised the point on several occasions that although we claim that the amendment does nothing and that the position is the same with the amendment as without it, if it makes no difference, why should we not accept it? The courts may naturally assume that the amendment does something— and that that something may be different from what was intended. That is why I am so reluctant that the House should accept the amendment. If the position were unclear, I would accept the amendment. I would accept the amendment if it would change the law to achieve 1040 the desired effect. However, the position is clear. The amendment achieves nothing. Therefore, I urge your Lordships to reject it.
§ 7.15 p.m.
§ Baroness Hollis of Heigham
My Lords, the Minister has made her position clear. At this stage I shall not push the amendment to a vote, but the Opposition will return to this matter in the Commons. However, I repeat that in legislation it is silly to have one set of words affecting the service element of a local authority's provision and a different set of words when the service equivalent becomes direct payments. To suggest two different sets of wording, which is how the Government have ended—one set relating to direct payments and the other to services—suggests that there is not a level playing field between the two and that a different construction can be placed upon them.
The matter is in the Minister's hands. The Minister could have used different words. We have tried to deal with this in different ways to see whether we can meet the Minister's objections. I repeat that the matter is in the Government's hands. They could have put the situation beyond doubt and made the position totally clear by incorporating the same words regarding direct payments as are applied to service provision. The Government chose not to do so. Both local authorities and disability organisations believe that whatever the Minister may intend, it is not what is in the Minister's head that is the issue; the issue is what is stated on the face of the Bill. The Minister has failed to align the wording although she insists that that is what is meant to happen. I do not understand it. It is silly on the Government's part; but at this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Baroness Hollis of Heigham moved Amendment No. 3:
Page 1, line 24, at beginning insert ("Except where the authority is satisfied that the person from whom the services can be secured is suitable,").
§ The noble Baroness said: My Lords, this amendment addresses the issue of which relative may be employed to meet the needs of somebody in receipt of direct payments. We all accept that direct payments should not replace informal family care with paid formal care. We all accept that we do not want disabled people to be put in a position where they are pressurised by family members to employ someone within the family, whom they cannot subsequently sack, when they would prefer to be independent and to employ somebody from outside the family.
§ We have no difficulty with the Government's position that any family member living in the same household—by definition, a close relative— should not be eligible to be paid with direct payments. I believe that all noble Lords agree with those principles—that you should not be expected to employ a family member if you do not want to do so, and that you certainly should not be able to employ a family member who lives in the same house because that would turn into formal care that which is currently informal family care.1041
§ However, the Government have gone much further than that. They have gone beyond the practice of the Independent Living Fund and have said that you may not make direct payments to members of the family, often quite distant family members, who may live on the other side of the town or village. In other words, the Government have ruled out remote relatives who do not live in the same household.
§ The Government have recognised that that is too blanket a ban and have already indicated that they will make some exceptions. They will make exceptions for people in ethnic communities where someone may be able to insist that they employ a person who is a member of their extended family; they will make exceptions in rural areas where there may be few people willing or available to care; they will make exceptions for people with AIDS where only a few people may be willing to take on the care role. So, in other words, the Government accept that they need to be flexible; that they need to be within the area of local authority discretion. The amendment will take that just one step further.
§ Disabled people should not employ relatives living outside the family home except with the express consent of the local authority. That means that the disabled person would have to obtain the agreement of the local authority to do that, and if it were clear to the social worker that the disabled person was being pressurised by the family, or the local authority was worried that abuse or exploitation might arise, that consent would not be given. The local authority, and not the disabled person, would be taking responsibility for that decision, thus freeing the disabled person from any blame within the family. Why then are we pushing this matter? Why do we believe that it is important to extend the flexibility, the discretion?
§ First, a "family member" as defined by government comes from an arbitrary group. The definition excludes, for example, the ability to pay someone who is the partner of one's stepson who lives on the other side of the town. It excludes, for example, one's right to employ the partner of one's nephew on the grounds that that person is a member of the family.
§ I do not know about other Members of your Lordships' House. I have met some of my nephews' partners but there are some partners whom I have never met. Are we saying that someone that I have never met is a member of the family such that I could not employ that person in a direct payment situation? One has only to say that to show that such a definition of "family" is absurd. What happens when a person is employing someone to be the carer and to help with the daily tasks and that person meets one's visiting nephew or stepson and they become partners? Does one then have to sack them? That is the implication of the Government's position.
§ First, as I say, the notion of family is far too arbitrary and too widely cast. No one objects to restricting the ability to employ on direct payments close relatives living in the family home, but the definition is too widely drawn at the moment.1042
§ Secondly, and this is a different argument, many disabled people prefer the impersonality of employing a stranger. They want that employer/employee relationship. However, other disabled people, especially those who feel vulnerable, may want the opposite; they fear strangers in their home. Many of the tasks they will be asking for help with are intimate. They involve toileting, for example. They feel vulnerable. They want someone whom they can trust and with whom they feel comfortable. That may be the nephew's partner, the niece or the partner of a stepson. It may be someone whom they already know, with whom they can relax, they trust and with whom they would not have to build up a new relationship. Such a distant family member is often much more flexible, more willing and can be called in at odd times and is cheerful about that. They are more committed; they are more constant; they are more reliable.
§ As I say, some disabled people would want the opposite— an impersonal relationship. But where a disabled person wants someone with whom they are comfortable, whom they can trust and who is not a close member of the family, why should they not have the right to employ that person if the local authority is satisfied that that choice is free and informed?
§ It is not always easy to employ someone for such intimate work. By disqualifying distant relatives who live outside the home we are narrowing unnecessarily the group from which a disabled person may recruit.
§ Finally, the amendment would align direct payments of local authorities with the ILF scheme which distinguishes between close relatives living within the home and those who live outside. Accepting the amendment would allow a seamless provision between the local authority tranche of money and the ILF tranche so that different rules about whom one can employ do not apply to the different schemes.
§ The amendment requires the consent of the local authority. Thus it will prevent any exploitation or abuse. The local authority has to be satisfied that the disabled person wants it and that it is in their best interests. But if it is in their best interests, the disabled person wants it and it is such a distant relative that they are outside the home, why in heaven's name do we not allow it, just as the ILF has done? Over many years it has had no problems with that. I beg to move.
§ Baroness Cumberlege
My Lords, as the noble Baroness said, we are seeking to draw a balance between preventing the formalisation of informal care and not prohibiting sensible and appropriate arrangements. We want to avoid direct payments being used to pay people who might otherwise provide care on an informal basis, for all the reasons I have explained in previous debates. But in doing so we do not wish unnecessarily to restrict the choice of providers available to people who receive direct payments.
The restrictions on employing relatives and friends which we propose to make in regulations and guidance are included in the consultation paper, and we will need to consider the responses to the consultation exercise before reaching final decisions on those issues. On Report, the noble Baroness, Lady Hollis, suggested a 1043 change of emphasis to give local authorities more discretion in deciding whom to allow to be employed. We find that a most interesting suggestion and one which we are considering very carefully. I am sure the noble Baroness will not, however, expect the Government to commit themselves before we have heard the views of those responding to the consultation paper.
The amendment goes somewhat further and proposes that local authorities should be able to make exceptions to the content of our proposed regulations. The Government are very carefully considering their proposals. We are consulting on the content of our regulations and guidance and will make our decision in the light of the responses to that consultation and the debates in this House. We shall then decide what we consider appropriate to include in regulations and what in guidance. But having made that decision we do not think it appropriate for local authorities to be able to make exceptions to the regulations, as proposed in the amendment. The areas where we think it is appropriate for local authorities to use their discretion will be covered in guidance.
We feel that the noble Baroness made a persuasive case on her original suggestion on Report. As I said, we are thinking about it carefully. I hope that with that assurance she will not press the amendment.
§ Baroness Hollis of Heigham
My Lords, I thought that this amendment might be preferable to the previous one, but the Minister tells me that that amendment is better than this one, even though it was not acceptable at the time. I am well content.
In so far as the Minister is saying that the Government will consider this matter seriously, I cannot obviously hope for anything more at this stage. Obviously the Government are right to say that they must wait for responses to the consultation paper and that the Opposition cannot reasonably expect the Government to decide before they have received those responses. That is right, but it would have been even better if the Government had not introduced the Bill until after the consultation paper responses had been seen, so that we all shared that body of information and opinion.
I am sure that it is not the Minister's fault, but it is regrettable when the Minister gives as a reason for not accepting the amendment that her consultation paper was not out in good time for us to get back the information upon the basis of which we could build our amendments. It is extraordinarily unreasonable for the Government to blame us, because we do not have the advantage of a consultation paper which has gone out too late for us to have the responses in time to debate the Bill.
One talks about fingering the Opposition, but that seems unusually perverse. Nonetheless, as a result, and in the expectation that the consultation paper will confirm what we had been hoping— that there is a need to extend the group so that disabled people can employ relatives, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendments Nos. 4 and 5 not moved.]1044
§ 7.30 p.m.
§ Baroness Cumberlege
My Lords, I beg to move that the Bill do now pass. This is an important piece of legislation. People throughout the United Kingdom who receive direct payments will have more independence, choice and control over the way they live their lives. Disabled people have been asking for this legislation and in preparing the Bill we have found their views essential. We look forward to considering their responses to the consultation exercise.
The noble Baroness suggested that we were blaming the Opposition. There is no question of blame but I believe that she realises that we need to hear the views.
I would like to thank all your Lordships for the underlying support given to this Bill, in particular the noble Baroness, Lady Hollis, for testing our proposals so thoroughly. At the Report stage the noble Lord, Lord Rix, referred to the "reason tinged by passion", which he felt was evident in many of your Lordships' debates. That is a good description of the debates that have taken place on this Bill, not least those initiated by the noble Lord.
I would also like to pay tribute to the noble Lord, Lord Addington, the noble Baronesses, Lady Darcy (de Knayth) and Lady Hamwee, the noble Lord, Lord Carter, the noble Baroness, Lady Masham, who is sorry that she cannot be here today, the noble Earl, Lord Mar and Kellie, and to my noble friends Lord Campbell of Croy, Lord Hayhoe, Lord Jenkin, Lady Seccombe, Lady Faithfull and Lord Swinfen. We are at one in wanting direct payments to succeed.
My noble friend Lady Faithfull was anxious that we should have some regulation over care providers. We understand her anxieties but we believe that probably this is not the right Bill to bring forward her proposals.
We have given several commitments in response to the points raised by your Lordships. The Government have amended the Bill as recommended by the Delegated Powers Scrutiny Committee. We are committed to giving Parliament a report on the workings of the Act within three years of commencement. As regards the financial contribution that people may be required to make, we are committed to issuing Section 7 guidance to stress that local authorities must treat people fairly, and should treat those receiving direct payments in a manner equivalent to those receiving services.
As regards Section 7 guidance, we will also make clear that payments should be sufficient to allow people to buy services of adequate quality, taking account of any legal liabilities involved in doing so. We will issue practice guidance to encourage local authorities to give support to people who receive direct payments. We intend to tell local authorities that before people consent to receive direct payments they should ensure that they are made aware that they may have responsibilities as employers.
We are thinking of producing a guide for people who receive direct payments. If we did so it would certainly cover the issue of employing staff. We will produce some training materials for local authorities in order to help them to train their staff and we will continue to involve disabled people and local authorities in the 1045 development of this policy. We have also asked the Technical Advisory Group to assist us in looking at what should be in our guidance, considering whether we should produce a guide for people who receive payments and, if so, what it should contain, and thinking about what kind of training materials we should produce for local authorities. We have also given a commitment that we will consult widely on our guidance in draft.
We have discussed at length many of the issues covered in the consultation document and in particular eligibility. We understand the frustration which many of your Lordships have felt over the fact that the consultation has not yet been completed. But we must allow time for people to consider and to respond to the document. We intend to keep the issue of eligibility under review once direct payments are available.
Our shared aim is to create the best possible framework for this exciting new venture. The Government believe that the framework set out by the Bill is right. I commend the Bill to the House.
Moved, That the Bill do now pass.— (Baroness Cumberlege.)
§ 7.34 p.m.
§ Baroness Hollis of Heigham
My Lords, we are delighted that the Bill is in place. Many of us in the Chamber have campaigned for it for several years while the disability organisations, such as DIG and BCDOP, and local authorities, such as Kingston, have campaigned for it for many more years. They and we are delighted to see the Bill going through Parliament.
The Bill provides that the care system must fit the needs and the wishes of disabled people rather than disabled people fitting the management structures, rotas and rigidities of a formal care system. The Bill restores the right for disabled people to choose and the right to have spontaneity in their lives. Many people who have received direct payments from the independent living fund have found that it has turned their lives around. People who would otherwise be in institutional residential care have come out to live in the community, have married, have had children, have held down a job and have contributed to society all that they and we would wish. That is what the principle of the Bill is about and it is absolutely right.
As always, the Minister has been informed and courteous. By now we expect nothing less. I am sure that I speak for many noble Lords in welcoming and congratulating a former Conservative Back-Bencher who a couple of years ago introduced a Private Member's Bill, the noble Lord, Lord McColl, who too must be gratified at seeing the Bill going through in its present state.
It is a particular pleasure to thank my noble friend Lord Carter who knows far more about disability issues than I will ever learn and whose wise advice is always available to help people such as myself. I thank the noble Lord, Lord Addington, the noble Baroness, Lady Hamwee, and the noble Earl, Lord Mar and Kellie, on the Liberal Democrat Benches as well as those on the Cross-Benches for their informed 1046 contributions. I include the mobility brigade who have been inhibited in attending tonight only by the snow and not by the issues.
We have always learnt from contributions made by Members on the Conservative Benches. They include the noble Lords, Lord Renton and Lord Campbell of Croy, and the noble Baroness, Lady Faithfull. They have real expertise on the subject from which the House has consistently benefited.
I have one regret. The Bill is not faintly party political and no issues of money or ideology or points of principle have been involved. Nonetheless, time and again the Government have simply resisted or been obdurate where I believe they should have accepted amendments. Instead, we have had insights, such as unripe time and running before walking, rather than a real recognition of the arguments. I regret that, particularly as regards eligibility. I hope that the issues that we have failed to clarify in this House will be clarified in another place.
It is a good Bill but it could have been even better. Even so, we are not greatly distressed because the powers of regulation, including the powers to make Section 7 guidance, which carries heavy weight, will permit the next Minister for disabled people to deliver within a few months every amendment that this Government have resisted but which disabled people, disability organisations and local authorities wish him to. This is a good Bill and an even better Bill may emerge from the Commons. If not, an even better Bill is around the corner. In the meantime, we wish this Bill happily on its way.
§ 7.38 p.m.
§ Lord Addington
My Lords, we on these Benches support the Bill. It is not exactly the Bill we wanted. It is not sufficiently wide in scope and it has certain limitations, but it is a start. It is true that regulation may well include other people at a later date. I am a little more sceptical about regulation; I would rather see the provision in front of me. However, take what is given and be thankful.
I thank the noble Baroness, Lady Cumberlege, and the noble Baroness, Lady Hollis, who between them have shaken the issues extremely firmly and have saved me from having to give too many examples, which I do not like to do. I also thank my noble friends on these and other Benches who have given the Bill such a good airing from so many points of view. It is a pity that so many people who have helped the process of the Bill cannot be here tonight.
Perhaps I may mention in particular my noble friend Lady Seear who has missed the latter stages of the Bill because she is recuperating from an operation. Although she was briefly out of hospital today she has had to return. I hope that my noble friend will soon be back with us and will encourage the Bill in the future.
§ Lord Renton
My Lords, I must confess that, although this is the last opportunity that one has, this is the first time that I have spoken on this Bill in your Lordships' House. The reason is that I was absent through being unwell.
1047 I too welcome the Bill and I am very glad to know that it applies to those who are in the homeless foundation scheme of MENCAP because I was chairman of MENCAP when that scheme was introduced.
However, I have a regret to express; namely, that the Bill does not apply to people who are in village communities. I believe that that is an omission which should be cured in another place. It so happens that inquiries have shown that in village communities, mentally handicapped people— if I may dare to call them that in these modern times— have all the facilities which they would have if they were living in homeless foundation places or in other schemes within the community, whether or not they are local authority schemes. I have a daughter who for many years has lived in a village settlement and has been very well looked after there. Those who are capable of being trained in those settlements are trained and that is another advantage of them.
There are those who prefer to be in a rural setting or whose parents prefer them to be there. There are such schemes already operated by local authorities and under the National Health Service, especially in Surrey and in the north of the country. I feel that it is a serious omission from the Bill that it does not apply to those people in village settlements.
I know that my noble friend and the Secretary of State have been giving some thought to that matter. Unfortunately, they had not given thought to it in time for it to be included in the Bill when it was first published. But I most earnestly hope that they are keeping an open mind about it and will realise the equity of the matter. Why should those who are in urban hostels be treated better and given a better opportunity than those who are so well cared for in village communities? I hope that that will receive attention in another place.
§ The Earl of Mar and Kellie
My Lords, this Bill certainly heads in the right direction and will be very popular in Scotland. It certainly clarifies for all time that direct payments can be made legally under the Social Work (Scotland) Act as it amends and extends Section 12 to establish that.
In Scotland, our next task is to persuade the Secretary of State for Scotland to move a wee bit quicker than clown south and to work with a wider group.
§ Baroness Masham of Ilton
My Lords, I just heard the noble Baroness, Lady Hollis, say that the mobile 1048 Bench is not present. I at least have only half a voice and that is the reason. I listened to the debate with great interest from below the Bar.
I am president of the Spinal Injuries Association which was one of the organisations that campaigned for this legislation. It is extremely pleased that some disabled people will be able to take more control of their lives and it believes that this is a step forward. I thank everybody who has supported the needs of disabled people.
§ Baroness Cumberlege
My Lords, despite the clock, I know that time has not stood still. For all we know, it may be snowing outside and we need to get home. I thank all your Lordships who have supported the underlying principle of the Bill. I suspect that if the noble Baroness, Lady Hollis, and the noble Lord, Lord Addington, were writing an end-of-term report they would say, "Good progress but could do better". However, I suspect that that is nearly always the case with a Bill that is taken through your Lordships' House.
Perhaps I may quickly clarify one point that was made on the last debate. I spoke about the noble Baroness's proposals and I said that we were considering them very carefully. I should point out that I was referring to the guidance concerning who may be paid to provide the service and not the amendments of the Bill. I wanted to make that quite clear but I think that the noble Baroness understood that.
With the support of your Lordships, perhaps I may send our best wishes to the noble Baroness, Lady Seear. I hope that she makes a very quick recovery. I am pleased also that my noble friend Lord Renton has returned to the House in good health.
I listened carefully to what my noble friend said about village communities. Perhaps he will take comfort from the fact that my noble friend Lord Pearson put his views very strongly and those views coincide with those of the noble Lord, Lord Renton. My noble friend Lord Pearson expressed those opinions with force on Second Reading and he sought to amend the Bill. I do not wish to go into the detail of that debate at this late hour.
Finally, I feel that we are stepping forward into a new world. We must tread carefully to see how direct payments work in practice. But I believe that this Bill will enable us to build a solid foundation for the long-term future of another aspect of community care. I commend the Bill to the House.
On Question, Bill passed, and sent to the Commons.
§ House adjourned at thirteen minutes before eight o'clock.