HL Deb 15 January 1996 vol 568 cc440-56

House again in Committee on Clause 1.

Baroness Hamwee moved Amendment No. 28: Page I, line 27, at end insert— ("( ) Provision shall he made for local authorities to include schemes established for the purpose of making payments under subsection (1) above in their existing annual community care services report.").

The noble Baroness said: This amendment continues the debate which took place just before the break with regard to reporting on progress made in direct payments schemes. The amendment suggests that reports arc made in the context of community care as a whole within each local authority; in other words, within its own community care services reports. As the noble Baroness, Lady Hollis, reminded the Committee, the scheme is permissive and therefore there is an important public interest in each community being informed of the extent of the scheme as well as on how the scheme is working.

Community care reports will go to social services committees. They act as a focus for monitoring and can be the subject of discussion among users and carers as to the service development to which the Minister referred before the break. Rather than a separate report on the matter, as was proposed in Amendment No. 26, it is important to see payments as part of the whole provision of community care. That is why I have suggested in the amendment that the community care services report should be the vehicle for reporting on the progress of payments. I beg to move.

Lord Carter

This seems to be a sensible proposal. The only point that occurs to me is that in the minority of authorities which do not have a direct payments scheme—there may be a few—the omission will become glaringly obvious because they will not he able to report on it.

Baroness Cumberlege

There is very little I want to add that I did not mention in the previous debate on this matter. On the generality of monitoring what social services departments are doing, the voluntary organisations are very good at that in an informal way. But I understand the issue concerning accountability and the formal mechanisms that are required. We expect social services departments to report to the Department of Health. We monitor them carefully arid, as our recent taskforce has shown, we keep a close eye on community care. But we do not think that anything further needs to be put on the face of the Bill.

Baroness Hamwee

I shall reread what the Minister had to say in the earlier debate. In moving the amendment, I should have said that in paragraph 32 of the consultation document the department says that it would expect local authorities to include information on the schemes in their community care plans and in local community care charters. It is perhaps a matter for seeing what is the response to the consultation on that point. Even if the Bill does not provide for regulations, the Government may decide that it would be a good thing to provide for such regulations in response to that consultation. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Croy moved Amendment No. 29: Page 2, line leave out subsection (5) and insert— ("( ) An authority by whom a payment under subsection (1) above is made shall recover that payment if the person to whom it is made has not spent it on securing the provision of community care services which the authority has decided he needs.").

The noble Lord said: In moving this amendment, I suggest that at the same time my Amendments Nos. 33 and 36 be discussed. These amendments are intended to enable the Committee to consider a matter which was brought to our attention by the Scrutiny Committee on Delegated Powers in its first report of the current Session. I retired from that committee at the end of last Session, having been a member of it since it was created, so I did not scrutinise this Bill or participate in drawing up the report. Since the committee came into existence some three years ago the Government have given serious consideration to its recommendations and taken action on many of them. Since arriving from northern Scotland this afternoon I have seen the Government's memorandum from the Department of Health and I am glad to note that the Government are proposing to move amendments on this subject. This is the first opportunity to consider the report as it had not been issued at the time of Second Reading in December. That is the normal sequence. The scrutiny committee examines a Bill after First Reading but does not expect to be able to report by Second Reading. This Committee stage is therefore the earliest suitable time and in our Committee procedure discussion is normally based on amendments. My amendments are in that spirit probing.

The Bill leaves a great deal to be decided and carried out by regulations—in Clauses I and 4 for England and Wales and Scotland respectively. As the Bill is now formulated, the statutory instruments would all be subject to the negative resolution procedure. Noting that the system for payments is to be introduced step by step, the scrutiny committee was satisfied with the delegated powers proposed. However, the committee has suggested more thought on subsection (5), in which the aim is to recover money which has been misspent. Alternatives are proposed and the reasons are given in the following passage: The delegated power in subsection (5) is potentially very wide, and does not appear to he limited to the recovery of money which has been misused. Given the width of the power and the absence of any hint of limits on its use, there is a case for subjecting the delegated power in subsection (5) to affirmative resolution procedure in the first instance, and only thereafter to negative procedure".

That proposal for affirmative resolution procedure for the first statutory instrument and negative thereafter has been advocated by the scrutiny committee as a new and suitable process in certain circumstances. The Government have already adopted this procedure in at least one other Bill in the recent past. I personally have been attracted by it, especially where the provisions are in a new field. Once the pattern has been set and accepted by Parliament, it should not he necessary for every subsequent instrument in that field to come automatically to the Floor of each House. The negative procedure should then suffice. I note that Amendment No. 47, in the name of the noble Baroness, Lady Hamwee, is also on that point.

My amendments are for England and Wales in the first part of the Bill. But, as I said earlier today, if the principle is accepted, further amendments for Scotland would he in order. The scrutiny committee also wonders whether the whole matter of misspent money should he dealt with in the Bill, in primary legislation, and sees the case for that; namely, that the clear principle that local authorities have a duty to recover the money should replace the present subsection (5). That is the purpose of my first amendment. It would be a change of some substance. I am sure that the Government will have considered this proposal for removing one of the delegated powers in the Bill.

My other two amendments provide for the alternative which has already been outlined by me: the affirmative resolution in the first instance. The welcome information in the Government's memorandum indicates that the Government have accepted that recommendation to include the provisions on this subject in the primary legislation—that is the second alternative suggested by the scrutiny committee—and that a government amendment will come forward, I presume, at Report stage. That would appear to meet the object of my amendment. I look forward to hearing from my noble friend this evening and also to examining the Government's amendment in due course. I beg to move.

Baroness Hollis of Heigham

I am in a little difficulty: I had originally grouped the subsequent Amendments Nos. 30 and 41 with Amendment No. 29 because I was concerned about the issue raised as regards the repayment of misspent moneys, as opposed to regulation. As the noble Lord, Lord Campbell of Croy, developed his argument, it may be better if my noble friend Lord Carter responds to the issue of regulation and I shall flag up now and deal substantively with the next amendment, No. 30.

I was unhappy with the noble Lord's amendment. Although I am no great defender of regulation, nonetheless when one comes to the overpayment or misappropriation of moneys where it is not clear whether that is due to abuse, negligence, culpability or mismanagement, that is precisely the sort of area that should be left to local authority discretion informed by central government guidance, whether in the form of regulation or guidance. It seems to me that this amendment is far too rigid to he placed on the face of the Bill and it is simply inappropriate. If this were a substantive amendment and not a probing one, I would simply oppose it.

There are many circumstances, such as financial hardship, inexperience and others, where it would be quite wrong for the local authority to seek to recover those moneys. This is precisely the area where regulation and/or guidance is appropriate. Perhaps I may deal with the substantive issue in a moment and my noble friend Lord Carter pick up and pursue some of the otherwise very well judged and helpful comments about regulation made by the noble Lord, Lord Campbell of Croy.

Lord Campbell of Croy

I thank the noble Baroness for saying that. I left for Scotland last Thursday night and, as I could not do anything this morning as regards grouping because I was at an airport trying to catch an aeroplane, I made it known that, so far as I was concerned, the noble Baroness's amendments could be grouped with mine. I was surprised to find this afternoon that they had not been. I am glad that she is ready to speak on them.

Lord Carter

As regards regulation-making, my noble friend has made: the point. I sometimes feel that parliamentary draftsmen have a standard clause which states that everything shall be negative and then they see what happens and what they can get away with. We have discussed this matter as regards many Bills, as the Minister will know.

The Delegated Powers Scrutiny Committee has looked at this matter and it has made this proposal, which seems to be a sensible one. In principle we are not objecting to the idea of the affirmative resolution procedure the first time round and then afterwards the negative procedure. It is a new-ish procedure and it is an intelligent use of the regulation-making power. But that is only on the general point about the regulations. The substantive one as to whether they are appropriate for this particular issue of the recovery of debt will be dealt with when we come to Amendment No. 30.

Lord Swinfen

The noble Lord, Lord Campbell of Croy, said that the clause was designed for the recovery of money which has been misused, and with that I entirely agree. I have no argument with that whatsoever. But I prefer the wording that is on the face of the Bill at the moment instead of the wording of Amendment No. 29.

What is the position where the recipient of a grant for community care actually manages things so well that out of that money he can not only purchase the community care that the local authority considers that he needs, but is also able to purchase additional services? If he uses the money to go off to the Bahamas for a holiday, that is misuse and I entirely agree with the noble Lord. If the individual is a better manager than the local authority anticipates or better than the local authority itself, he should have the benefit of it, but I entirely agree that misused funds should be recovered.

Baroness Hamwee

The noble Lord will well understand that, having lifted his drafting so comprehensively in my later amendment, I am attracted by the approach to regulation. As regards the recovery of moneys, I agree with both noble Lords. Provided that we can be satisfied that the local authority will have the power to recover money—and obviously that must be catered for—there will be many very different circumstances and probably more than we can envisage. They are matters of some sensitivity in some cases. It will he far more appropriate for the matter to be left to the discretion of the local authority to decide how to exercise the power.

Baroness Cumberlege

As my noble friend Lord Campbell of Croy said, Amendment No. 29 seeks to implement the suggestion of the Delegated Powers Scrutiny Committee to, write into the bill the clear principle that local authorities have a duty to recover misspent money". The Government have accepted that the power to make regulations specifying the circumstances in which local authorities may recover direct payments is unnecessary, and, as my noble friend has said, I intend to table an amendment to replace it with a general provision as the Committee suggested.

However, the Government do not accept that local authorities should have a duty to recover money which is misspent. To impose such a duty could force authorities to pursue trivial sums—a possibility which has been mentioned by the noble Baroness, Lady Hollis. Indeed, sometimes the sums expended could well he less than the cost of recovery. Giving them a power rather than a duty also gives authorities discretion to take into account hardship considerations when deciding whether to seek repayment.

There is little danger that local authorities will not require money to be repaid in genuine and substantial cases of misspending simply because they do not have a duty to do so. It is sufficient to give local authorities the power to recover the money. The government amendment will replace the regulatory power with a power enabling local authorities to recover funds where they are not satisfied that they have been spent properly.

Amendments Nos. 33 and 36 seek to implement the Delegated Powers Scrutiny Select Committee's less favoured suggestion of changing the way in which regulations are laid under subsection (5). The Government's proposed amendment will remove the delegated power, rendering this amendment unnecessary.

We believe, too, that Amendment No. 41 is also unnecessary. It seeks to enable local authorities to discontinue direct payments and reinstate services if the payments have been used improperly. There is nothing in the Bill to prevent local authorities from doing that, since the payment of money in lieu of services is at the discretion of the local authority. Subject to what I have said, I hope that these amendments will be taken in a probing vein.

Lord Campbell of Croy

I am grateful for the comments which have been made. The Department of Health memorandum indicates that the Government intend to introduce provision into the Bill which will replace subsection (5). Therefore, my two later amendments which we have been discussing will not be necessary. I am glad to have spoken about them because that is a procedure which will he useful, as has proved on past occasions with other Bills.

As regards the drafting of Amendment No. 29, I am the first to accept that it may not be perfect. The Government are going to produce their version, which I am sure will he much better. So I hope that any criticism which I detected of the wording of Amendment No. 29 will not arise in our debates at a later stage. If we accept the Government's proposed amendment at that later stage, then the affirmative resolution procedure will not he required for the purposes of subsection (5). We must therefore wait and see what the Government propose at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

8.30 p.m.

Baroness Hollis of Heigham moved Amendment No. 30: Page 2, line 3, leave out ("in such circumstances as may be specified in the regulations") and insert ("where there is evidence that such a payment has been spent in such a way as does not meet the specified requirements of the original care package.").

The noble Baroness said: In moving this amendment, I should like to speak also to Amendment No. 41. The amendments revisit the issue raised by the noble Lord, Lord Campbell of Croy, in his amendment, Amendment No. 29, on regulations. The Minister answered that in part, but I think that it might be worth pushing this a little further because clearly we want to allay any fears that there may be in people's minds.

I do not think that anybody disputes that we should protect public moneys against abuse or even fraud. It is clear also that if the moneys are misspent and the needs of a disabled person not met, meaning that the local authority then has to provide services in lieu, that puts an unacceptable and unfair strain on local authority resources. However, we want this to be a power, not a duty. I believe that that is the Government's position also, and that it is analogous with a local authority's powers in relation to the recovery of debts. Local authority expenditure and the disbursement of payments is perfectly properly scrutinised by both internal and external audits so I do not think that any of us need have any doubt that a local authority will pursue the recovery of moneys where circumstances make that appropriate.

However, given that we are dealing with clients who will almost certainly be inexperienced at directly employing someone or who may be confused about some of their statutory obligations, I fear that there is room for a degree of misunderstanding and we should like local authority discretion then to operate. That will involve cases ranging from hardship to misinformation about the appropriate responsibilities. The tangle or rather the discussion which the Committee had earlier about who pays VAT and who does not is but a taste of some of the difficulties that may arise.

Another reason why we want there to be discretion—again, I would very much welcome what I am sure will be the comforting words of the Minister on this matter—is that we do not want there to be the impression that the direct payments package is so tight that there is no scope for what the Government in their consultation paper referred to as "flexibility" and "reasonableness". The client and the social worker together will draw up a care package and direct payments will be made. Clearly, if needs change significantly and the client requires either more or less support, that care package and the direct payments must be reassessed.

However, it is also the case that a disabled person's needs may quite properly fluctuate modestly from week to week, fortnight to fortnight or month to month. That may be due to the person's state of health. If the disabled person has multiple sclerosis, he or she may move in and out of remission and may want, therefore, to spend more money one week on taxis whereas the next week he or she may want to spend more on help in the home because of being housebound. Direct payments were supposed to encourage exactly such flexibility and we do not want social workers to have a mistaken sense of probity with regard to public moneys or clients to be nervous that they may find themselves being prosecuted for misspending those moneys. We do not want such misapprehensions to be held.

As long as appropriate audit arrangements are in place, such as a separate bank account and records of receipts, that flexibility and the ability to veer between spending on taxis or on help in the home can be secured. Indeed, it is not only necessary, but desirable. It allows disabled people much more spontaneity about life, together with the ability to change their mind and to alter arrangements according to the weather, their health, appointments, work demands and personal needs. No one's life is the same each and every week—and certainly not a disabled person's life. We must therefore allow that departure from the specifications of the original care package where appropriate without either the social worker or the client feeling that that may take them into the territory of the recovery of moneys that have been misspent.

Finally, on Amendment No. 41, with which Amendment No. 30 is grouped, we are saying that where a local authority believes that payments have been abused, it may cease to make those payments and instead reinstate direct services. That is not only to protect public moneys—clearly, they must be protected—but to ensure flexibility where a client's condition or competence may have deteriorated or where the social worker suspects that there may be mishandling by a third party, perhaps a relative. The local authority may then intervene and stop direct payments in order to protect the client. We hope that the Minister will make the position clear either on the face of the Bill, by regulations or in guidance. I beg to move.

Baroness Cumberlege

I believe that I have already covered some of the points raised by the noble Baroness, but perhaps I may reaffirm that we agree that there may be occasions when it would not be right to recover funds. We also agree that it is right to leave the question of when to seek recovery to the discretion of the local authorities. That is why we intend to table an amendment to give a general provision allowing local authorities to recover funds if they are not satisfied that they have been spent properly.

I do not think that It can add anything further except that I have already spoken to Amendment No. 41, which we feel is unnecessary also.

Baroness Hollis of Heigham

I thank the Minister for that answer and am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 31 not moved.]

Baroness Hamwee moved Amendment No. 32: Page 2, line 10, leave out subsection (7).

The noble Baroness said: Amendment No. 32 is grouped with Amendment No. 34 which stands in the names of the noble Baroness, Lady Hollis, and the noble Lord, Lord Carter, and with Amendment No. 47 which stands in my name. Amendment No. 47 is my substantive amendment and seeks to replace the power to make regulations by statutory instrument subject to annulment with an obligation to make regulations which in the first instance are subject to the affirmative procedure.

We started this afternoon with a comment from the noble Lord, Lord Rix, about the consultation paper having been received by the voluntary organisations late on Friday. It is, of course, right that that consultation should be conducted before the regulations are laid but, as many noble Lords have pointed out, there is a real difficulty in considering the Bill without the regulations because so much is to be dealt with by regulation. It would be far more satisfactory if we had the benefit of the regulations before considering the Bill. That would undoubtedly have shortened today's proceedings.

It seems to me that regulations which deal with a new subject area should be subject to the affirmative procedure in the first instance and thereafter to the negative resolution procedure. That would strike a good balance, requiring the House to devote its attention to those regulations the first time round, but not taking up parliamentary time thereafter unless that was felt to be necessary. The working of this Bill will depend on the regulations and it is therefore particularly important that those regulations be fully scrutinised. I beg to move.

Lord Carter

I intervene solely for clarification because we have already gone over this ground. Can the Minister confirm that she will table an amendment to deal with the point about debt recovery in subsection (5) and a general amendment along the lines of that proposed by both the noble Lord, Lord Campbell, and the noble Baroness, Lady Hamwee, in respect of regulations being subject to the affirmative procedure the first time round and the negative resolution procedure thereafter? As I understand it, that is the Government's intention. The Government accept the recommendation of the Delegated Powers Scrutiny Committee to change Clause 1(7) to cover the provisions of Amendment No. 47. Is that right?

Baroness Cumberlege

Not quite, but perhaps the noble Lord will listen to what I have to say. I have already given—and I now repeat—the assurance that we shall take into account the views expressed in this debate in making our decision on the content of the regulations. We will also he taking into account the responses to the major consultation exercises that we have initiated on the content of the regulations.

The main drawback to the proposed amendments is that they require the Government of the day to find parliamentary time every time they wish to amend, in however minor a fashion, one of the regulations. It is not always easy to find parliamentary time, especially if there is some reason why amendments need to he made at a particular time or within a particular timescale. I sense that Members of the Committee have already heard these arguments. These amendments raise the possibility of amendments to regulations being delayed, even though everyone might agree that the amendments were desirable, because of constraints on parliamentary time. The amendment would also be inconsistent with existing legislation in the community care field, where Members have been content to allow negative resolution regulations.

The question of the appropriateness of the Government's proposals on secondary legislation was considered by the Delegated Powers Scrutiny Committee. We have accepted its recommendation on Clause 1(5) but it has made no recommendation on the rest of the proposed regulatory powers. It was content with our proposal that negative resolution regulations should be made. That is the position.

Baroness Hamwee

In using the term "content" I do not refer to the Delegated Powers Scrutiny Committee but to Members of the Committee. From time to time we express ourselves to be content when we are, in fact, resigned rather than content.

One of the normal responses to the Minister's argument is that on important subject areas Members can be trusted not to be frivolous. Therefore, if amendments to regulations are not required, parliamentary time will not be taken. As the Minister sensed that Members of the Committee may have heard her argument before, I sense that they may have heard that one too. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 33 and 34 not moved.]

Lord Carter moved Amendment No. 35: Page 2, line 12, at end insert— ("( ) The Secretary of State shall lay before each House of Parliament a report evaluating the working of this Act within three years of the date of its commencement.").

The noble Lord said: This amendment deals with the requirement on the Secretary of State to lay before each House of Parliament a report of an evaluation of the provisions of the Act within three years of the date of its commencement. We have discussed the matter before in respect of other Bills. In essence, this is a new scheme. It expands an existing scheme but it is different in the way in which it will work as a general enabling provision. A number of detailed aspects of policy are to he dealt with in regulations.

We understand the point about issuing guidance and we now have the consultation paper. The Local Authority Social Services Act 1970 provides that: Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State". It is also understood that the department will issue more general practice guidance about how local authorities may wish to establish their local schemes.

That is a new approach. There will be some risks which will have to be monitored, as mentioned in the consultation paper, and there will be a need for audit trails. I referred earlier to the patchwork quilt that will develop because different authorities will have different levels of skill, enthusiasm or whatever in establishing the schemes. We believe that there is a clear need for central monitoring of the sharing of experience. The social services inspector will have a crucial role to play in the dissemination of information as well as reviewing the progress of the Act.

This is a probing amendment and we are not certain about the provision, three years. However, the idea is that the Secretary of State should be able to report on a regular basis, we suggest within three years of the date of the commencement of the Act, on how it is working. I beg to move.

Baroness Cumberlege

I am not sure whether the noble Lord, Lord Carter, sees beauty in a patchwork quilt or whether he sees it as a disadvantage. The Government would undoubtedly be monitoring the implementation of direct payments and reporting to Parliament when appropriate. At this stage we are content to make a commitment that we will give Parliament a report on the workings of the Act within three years of commencement but we do not see that it is necessary to write it into the Bill.

Lord Carter

Is that a concession or not?

Baroness Cumberlege

It is a patchwork quilt.

Lord Carter

I am overwhelmed. It is a commitment in Hansard but it is not on the face of the Bill. It is half a loaf and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 36 not moved.]

8.45 p.m.

Baroness Hollis of Heigham moved Amendment No. 37: Page 2, line 14, at end insert—

("( ) The Secretary of State may issue guidance about the matters to be taken into account and the manner in which an authority is to discharge its functions under this Act and before issuing such guidance the Secretary of State shall consult with such persons as he considers appropriate.").

The noble Baroness said: I hope that the Minister will think that this amendment is another apple pie, motherhood and American patchwork quilt. It recognises that on the one hand some local authorities and disabled people have extensive knowledge of direct payments, independent living and so forth. They may know, for example, the advantages and disadvantages of purchasing through an agency, of employing someone directly or of working through a local voluntary agency. They will also know about the need, for example, of support packages, of appropriate methods of monitoring, of training and the like. There is a great deal of experience and knowledge tucked away within local authorities, voluntary organisations and, above all, with the ILF.

However, other local authorities may not have such experience. They and disabled people in their areas will be coming new to direct payments. I hope that the Minister will say that the amendment is unnecessary because she will introduce the provision in any event but it will simply authorise the Secretary of State to issue guidance and to consult those best informed when issuing that guidance, on the ground that it constitutes the diffusion of useful knowledge. The Victorians would have been proud of her. I beg to move.

Baroness Cumberlege

The noble Baroness is right, in that we believe that the amendment is not necessary. It seeks to give the Secretary of State the power to issue guidance on the operation of direct payments. Clause 3(3) already gives him this power by adding direct payments to the list of social services functions in Schedule I to the Local Authority Social Services Act 1970. Sections 7 and 7A of that Act authorise the Secretary of State to issue guidance and directions in relation to local authorities' exercise of their social services functions. It is normal practice to consult interested parties in the preparation of community care guidance, and we intend to consult on the proposed guidance on the Bill. We do not support the amendment.

Baroness Hollis of Heigham

Is the Minister saying that the Government will be issuing such guidance as opposed to saying that the power to issue such guidance is unnecessary?

Baroness Cumberlege

We believe it to be unnecessary because we believe that already there are powers that the Secretary of State can use within the Local Authority Social Services Act.

Baroness Hollis of Heigham

I am sorry to come back. I understand that the Secretary of State does not need powers to issue guidance. The question is: does the Secretary of State intend to issue such guidance?

Baroness Cumberlege

We understood that the amendment would require the Secretary of State to consult on guidance. At the moment, it is normal practice to consult but, with regard to the Government issuing guidance under Section 7, the answer is in the affirmative. Perhaps I may write to the noble Baroness on that matter.

Baroness Hollis of Heigham

I would be grateful if the Minister would write to me in order to clear up the matter. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause I agreed to.

[Amendment No. 38 not moved.]

Clause 2 [Relationship with other functions]:

Baroness Hamwee moved Amendment No. 39: Page 2, line 22, leave out ("they are satisfied that").

The noble Baroness said: In moving Amendment No. 39, I shall speak also to Amendment No. 40. I fear that amendments which looked fairly sensible in the light of day when drafted may appear to be nitpicking at this hour of the night. I shall deal with them quickly.

Clause 2 deals with a local authority's obligations, or relief from obligations, to provide community care in respect of services for which payments are made. I wondered whether the words "they are satisfied that" in subsection (2) gave a more subjective slant than was satisfactory. In other words, is there a sufficient degree of objectivity in the local authority's consideration as to whether or not the service is required? How reasonable are they to be in judging their own satisfaction?

The second amendment seeks to replace the words "will be met by virtue of", simply because I am slightly uncomfortable about seeing those words in legislation. It is possible that "by" is better. I was perhaps over-energetic in the Christmas break and came up with the words "has been agreed to be acquired by". I impertinently question the terminology of the clause. I beg to move.

Baroness Cumberlege

Clause 2 is in the Bill to ensure that a local authority does not have to pay twice to meet the same needs, once by direct payments and again by providing services. Subsection (2) ensures that where someone receives direct payments but their needs are not met, for whatever reason, the local authority has a responsibility to step in and arrange the relevant services. This provision ensures that no-one is left without the services that the authority has said that they should have. These amendments remove that safety net. If the recipient has agreed to use the payments to acquire the service that he or she has been assessed as needing, the local authority is no longer under any obligation with regard to those needs. So, if that person is unable to acquire those services, for whatever reason, whether or not they bear any responsibility for that fact, the local authority will no longer have any responsibility to help out.

The noble Baroness, Lady Hamwee, has expressed concern about people who fail to use their direct payments properly, leaving the local authority to pay twice. Individuals should make reasonable arrangements to ensure that their needs are met using direct payments, and that they have adequate back-up in emergencies, such as when a personal assistant falls sick. But if their needs are not met, under the Bill as drafted the local authority will have a responsibility to step in. If the local authority is asked to step in it may well decide to look again at whether the individual can manage the direct payments scheme and consider discontinuing direct payments. The situation that the noble Baroness fears should not continue for long. Either the authority will discontinue payments or the crisis will pass. If the reason why the user's needs are not met is that he or she has misspent the payments the local authority will have the power to recover that money, so the local authority will not be paying twice. If that is not the case, in rare circumstances the local authority may indeed find itself paying twice for the same service. For example, the payments recipient's personal assistant may fall sick, and the agency which they have contracted to provide cover is unable to provide someone. The local authority will have to step in, but that may happen equally where one of its own staff falls sick and the local authority has to pay someone to cover for them.

Clause 2 as it stands is essential to make direct payments work. To change it to address this one small risk opens up the much greater and more serious risk of leaving people with no way of securing the services they need. Therefore, we do not support this amendment.

Baroness Hamwee

I am not sure whether the Minister has answered the first amendment, but I will read her response. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 40 and 41 not moved.]

Clause 2 agreed to.

Clause 3 [Consequential amendments]:

Baroness Hollis of Heigham moved Amendment No. 42: Page 2, line 40, at end insert— ("( ) Section 29(6)(a) of the National Assistance Act 1948 shall be repealed.").

The noble Baroness said: Amendment No. 42 is a probing amendment to discover why the Government have not taken the opportunity under this Bill to repeal Section 29 of the National Assistance Act 1948 which up until now has made direct payments illegal. The Disabled Persons Services Bill, which was introduced in 1993 by the noble Lord, Lord McColl (whom we are delighted to see is here) sought to repeal this part of the 1948 Act in its first clause.

Subsequent clauses of this Bill refer back to the National Health Service and Community Care Act 1990 and the Chronically Sick and Disabled Persons Act 1970, but the definitions that they employ are founded on Section 29 of the 1948 Act. As one of the organisations has said, all roads lead back to that section. Why have the Government not unambiguously repealed it? We worry that perhaps a power may remain to make an assessment of needs and definitions contestable and therefore leave a local authority at risk of legal action. Perhaps Ihe Minister can allay our fears. I beg to move.

Baroness Cumberlege

Section 29(6)(a) of the National Assistance Act 1948 does not conflict with this Bill. It is neither necessary or desirable for it to be repealed. Section 29(6)(a) would not prevent direct payments under this Bill being used to fulfil the duties created in Section 29. Section 29(6)(a) merely states that the earlier parts of Section 29 do not authorise or require the payment of money. That authorisation will be given, in certain circumstances, by this Bill. To repeal Section 29(6)(a) will open the way for local authorities to pay money to people in much wider circumstances than are envisaged by this Bill. Indeed, it would allow money to be paid out in any circumstances, provided the purpose was to promote the welfare of someone covered by Section 29. The money would not need to be linked to the provision of any service. The purpose of direct payments is not to give people handouts. We must retain Section 29(6)(a) so that money can be paid out only in the circumstances and with the safeguards specified in the Bill. Therefore, we do not support this amendment.

Baroness Hollis of Heigham

The more the Minister spoke, the more I thought what a good idea it was to repeal this section of the 1948 Act and increase the discretion of local authorities overnight. But I understand the force of the Government's argument. Unless I am advised to the contrary, we would not wish to return to this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Clause 3 agreed to.

Lord Carter moved Amendment No. 43:

After Clause 3, insert the following new clause—

REGULATION OF INDEPENDENT DOMICILIARY SERVICES

(" . Where—

  1. (a) a person in receipt of direct payments under section 1(1) above has chosen to purchase independent domiciliary care; and
  2. (b) the Secretary of State has consulted with such persons as appear to him to be concerned,
he shall by order introduce a scheme for the regulation of the provision of such services.").

The noble Lord said: This amendment is an attempt to insure against the exploitation of disabled people by unscrupulous agencies which provide care, and to maintain general high standards of care. I believe we can all agree there is a strong possibility that service users who opt for the direct provision of service will require independent care providers, although we know that a number will choose to find their paid help by a variety of other means. The domiciliary care industry is at present small and is expanding rapidly. There is no requirement for independent care providers to register with local authority social services departments, nor do local authorities have the right to inspect such services. However, it is in everyone's interest, particularly those of the users of the service, that there be care standards for all such providers. To have a basic standard of registration assists new providers who wish to enter the market and will protect the users of the service.

We anticipate that direct payments may generate many new entrants to the market. This means that these new organisations will need the same regulation as that for which there has been a call for some time, as the Minister will know. We believe that this protection is vital. Authorities will find it hard to expand the operation of direct payment schemes unless something similar to what is proposed in the amendment is in place.

We know that the independent sector could gain by voluntarily registering with a local authority, but we do not feel that that is enough, especially where a single purchaser of a service has to rely on advertisement, word of mouth or canvassing for trade. We believe that there should he a requirement to ensure a basic minimum standard for all suppliers; that is, those to local authorities and those to private households. That would ensure that they were capable of providing a reasonable service and that the suppliers throughout the range were fit for the purpose.

We all want the Bill to succeed. Indeed, the worst that could happen is for a number of scandals to arise in the independent sector. The proposed amendment is perhaps not the best or perfect way to achieve that aim, but it is a probing amendment to elicit the views of the Government and to ascertain whether they would like to reconsider the matter and perhaps return at a later stage with their own amendment. I beg to move.

9 p.m.

Baroness Seear

I want to give the strongest support to the amendment. Of course, the issue has been raised before, but surely the case is greatly strengthened with the introduction of the Bill. I say that because the individuals making the purchases for themselves are at the mercy of the market and many of them will not have great opportunities to explore the details of the organisations with which they propose to deal. Such people are particularly vulnerable in that position; indeed, they can easily be taken for a ride and may find it very difficult to deal with irregularities which may arise in certain cases.

I should declare an interest in the matter as President of the Institute of Domiciliary Carers. I know that for a number of years now members of that organisation have been extremely anxious that there should be proper regulation. The good enterprises—and there are many of them in the private sector—on which we shall rely very heavily for making the scheme work also want to see regulation and registration so that the cowboys can be excluded.

As the noble Lord, Lord Carter, said, we only need a few really bad scandals—and there will be some rotten apples in this particular barrel, as in the case of all other barrels—for the whole scheme to be discredited. This is the time for the Government to think again about their determination, as in the past, to rely solely upon voluntary registration. They should consider introducing a proper scheme.

Lord Swinfen

I, too, should declare an interest in the amendment, as the John Groom Association for Disabled People for whom I work already runs two agencies which provide domiciliary care for physically disabled people. I know that the association experiences difficulty in finding suitable carers to work in people's private homes. It is a matter of ensuring that one has the right standard of worker, as regards both care and honesty; and, indeed, that applies in the way in which the agency operates. One must ensure that it does its level best as an agency to provide satisfactory staffing for people in their homes.

I strongly support Ihe amendment. The wording may not he ideal, but I hope that my noble friend the Minister will take it on hoard and, if she does not accept it, perhaps she will bring forward an amendment of her own at a later stage.

Baroness Cumberlege

I fully understand the concerns that have been expressed by Members of the Committee. Indeed, the Committee may he aware that a major review is currently taking place of the way in which social services are regulated and inspected. Part of the remit of that review is to consider whether non-residential services should be subject to regulation. The amendment seeks to introduce regulation of independent provision in the context of direct payments. We consider that it would be jumping the gun to introduce regulation in that way while the whole subject is being reviewed. We do not know what the outcome of the review will he and whether or not it recommends that we regulate non-residential care. Once we know the outcome of the review, we shall then consider its implications for direct payments.

There are already safeguards for direct payments recipients. No one will be forced to take on a direct payment; if an individual is concerned that he will not be able—even with help—to manage, then he does not have to accept a direct payment. Also, Clause 2 of the Bill means that if someone is unable to secure the services for which the direct payments are given, it will he the local authority's responsibility to arrange those services. So people should not find themselves without the care which the authority has said that they should have. Therefore, we do not support the amendment.

Lord Carter

The Minister's response is a little disappointing. The noble Baroness referred to the major review of both regulation and inspection, but could she give the Committee some idea of when that might he reported? Further, can she say when the review will he concluded and what the procedure will he; for example, will there be a public report, or how will it he handled?

Baroness Cumberlege

If I think terribly deeply, I believe that I can dredge my mind and produce more information. But at this very moment I cannot quite remember who is responsible. I believe that someone called Burgner is chairing the committee. Perhaps I may write to the noble Lord on the matter.

Lord Carter

I am extremely grateful to the Minister for that very clear reply. I entirely sympathise with the way that she feels. Indeed, we are all glad to see the Minister back in her place and no doubt it has been a most tiring day for her. I certainly do not wish to press the matter this evening. Perhaps we may talk about it between this and the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Direct payments]:

[Amendments Nos. 44 to 46 not moved.]

Clause 4 agreed to.

Clauses 5 and 6 agreed to.

[Amendment No. 47 not moved.]

Remaining clause agreed to.

House resumed: Bill reported without amendment.

House adjourned at seven minutes past nine o'clock.