COMMONS AMENDMENT (Hansard, 2 July 1996)

§ Baroness Miller of Hendon
My Lords, I beg to 1420 move that the House do agree with the Commons in their Amendment No. 1. I shall speak also to Amendments Nos. 2 to 8.
While there has not always been complete agreement on all the detail, this Bill has in general had the support of both sides of your Lordships' House. One issue on which we are of one mind is that local authorities should not treat people who receive direct payments differently than they would treat them under their charging policies if they were receiving the equivalent services. These amendments bring us even closer together on that point, and I hope that your Lordships will welcome them.
The point of disagreement when your Lordships first considered this Bill was over how to achieve the level playing field which everyone wanted. The Government never intended that local authorities should be required to seek a financial contribution from people to whom they make direct payments, nor that they should be required to means test. We do not believe that the Bill as originally drafted had either of those effects. However, there were some in this House who felt that it would be better to mirror more closely the wording in existing legislation on charging for non-residential services. The noble Baronesses, Lady Hollis and Lady Darcy (de Knayth), both tabled amendments seeking to ensure that the tests which apply to charging for services would also be applied in the case of direct payments.
As my noble friend Lady Cumberlege said then, we did not think that such amendment was necessary. Without the amendments before us today, the Bill does not require local authorities to treat differently under their charging policies people who receive direct payments and people who receive services.
However, since this Bill was first considered by your Lordships, we have had the benefit of nearly 400 responses to our consultation exercise. Among those, we received the following comment from the Association of County Councils and the Association of Metropolitan authorities: It would appear that charging will require means testing and hence a new layer of bureaucracy". Further soundings confirmed that there was indeed some uncertainty about the meaning of the Bill on this point.
The Government listened to these concerns, particularly against the background of your Lordships' three debates on this issue. Out of an abundance of caution, we decided to put the matter beyond doubt and gave a commitment in another place to amend the Bill so as to clarify this, as the noble Baroness, Lady Hollis, said at Committee stage, to make it transparently clear that there is a level playing field.
The amendments now before us amend subsections (1), (2) and (3) of Clause 1 to match more closely the wording used in Section 17 of the Health and Social Services and Social Security Adjudications Act 1983. The local authority is not required to means test. If the authority proposes a financial contribution, and the person receiving direct payments satisfies it that he or she cannot reasonably afford that amount, then the authority must reduce the amount to a level which it considers he or she can afford.
1421 Local authorities may not require people to contribute more than it appears to the authority to be reasonably practicable for them to contribute. That is equivalent to the law in relation to charging for non-residential services. Both leave local authorities discretion over whether and, if so, how much to charge and whether to set a flat rate charge, or a scale of charges. It is important that there is a level playing field. As amended, the wording of this Bill will be similar to that of the existing law on charging, but both allow the local authority discretion. That discretion is subject to similar constraints in both cases. However, there is no guarantee that local authorities will exercise their discretion with respect to people who receive direct payments in the same way as for people who receive services.
We said previously that we would issue firm policy guidance emphasising that local authorities should treat people who receive direct payments and people who receive services fairly and in the same way. We still intend to issue that guidance.
These amendments bring about what the noble Baronesses, Lady Hollis and Lady Darcy (de Knayth), were pressing for on previous occasions. I hope that your Lordships will give these amendments the welcome which they deserve. I commend the amendments to the House.
Moved, That the House do agree with the Commons in their Amendment No. 1.—(Baroness Miller of Hendon.)

§ Baroness Hollis of Heigham
My Lords, I understand that the Minister was speaking to Amendment No. 1 and all the subsequent amendments. We are happy to see this Bill return to this House and we are even happier that some of the amendments which we initially failed to persuade the Government to accept have now been taken up, reinforced by the formal evidence of the local authority associations which were briefing us at that time.
It is absolutely right—and I am delighted that the Minister has made it clear—that there should be an equivalence between those receiving direct payments and those receiving services and that no means-test should be smuggled in by the back door while, as the Minister was right to say, protecting the discretion of local authorities to ensure that similar cases are treated in similar ways, whether by direct payments or service provision. We are pleased about that.
The Minister will not expect me not to make a few further points. We are very sorry that the amendment for which we fought that direct payments should not be confined to those under 65 was won in Committee in another place and then overturned by the Government on the Floor of the House. We all accept that not all authorities are ready, willing and able to extend their powers in that way. However, it was a useful discretion for those which could and would have welcomed such a provision; in other words, those which have already been running DP schemes and which are ready to take on a broader-based clientele.
1422 We accept that local authorities which are new to direct payments will wish to phase in their schemes. I believe that the Government have made a profound mistake in that regard and are foolish to believe that the discretion of the Secretary of State should overrule the discretion of the local authorities which know what is the situation on the ground.
The Government are saying that the over-65s are not competent to manage their own affairs. That did not stop a sizeable number of Members of another place and many noble Lords, probably two-thirds of whom are over 65, determining that other 65 year-olds are not able to operate their own affairs.
However, the Government have agreed to review the situation after a year. There is no doubt that we all wish to see local authority schemes which are as broadly-based as possible. However, we are arguing about the speed at which that should progress. I should like confirmation or a reaffirmation from the Minister that the scheme will be reviewed after a year, not just for those with learning difficulties, who have been included, but also as to whether those local authorities which wish to do so should be able to include in the scheme those aged over 65.
In the meantime—and there was a trace of this in the debate in another place although the Government's position on it was somewhat equivocal—will the Government consider pilot schemes to encourage the existing voluntary schemes or the laundered schemes through third-party trusts, which is the experience of many local authorities?
The second point that I should like to make is that we are very sorry that another amendment which was pursued in this House has not been followed through by the Government; that is, to whom direct payments may be paid. The Government accept that they may be able to include the over-65s in the scheme in due course. Nobody on this side of the House has any wish to turn existing informal family care into a paid employer/employee relationship and we accept that, if all relatives could be turned into employees, there could be pressures on either side in that direction which we wish to avoid. It may be that a reluctant relative is press-ganged by a disabled person or a disabled person would prefer the formality of a more distant relationship and not wish to feel beholden to an immediate member of the family.
However, to avoid that lesser evil—namely, where both parties may be pressed into a situation that they do not want—the Government are committing a much greater evil. In my view, they are arbitrarily excluding relatives who are not especially close, and not necessarily living in the same household, from becoming employed. Indeed, that suggests that even someone who moves into the same household as a lodger and who strikes up a friendship with the person needing care cannot be employed to attend to that person's personal care needs because that would still be forbidden under the Bill or under Section 7 guidance. It is extremely unwise of the Government.
The Government have accepted that in rural areas and in extraordinary circumstances where there may be a scarcity of suitable people to provide care or where there 1423 may be, say, an HIV situation, discretion may be exercised. However, the Government would have been wise to accept an amendment that we pressed—or, indeed, introduce such an amendment in the other place—whereby if a social worker is satisfied that the employment of a relative is appropriate under the circumstances, that would be sufficient. Again, we do not need the Secretary of State double guessing local authorities and professionally trained social workers in the kind of delicate and sensitive jobs that they undertake all the time. Many disabled people, especially those requiring help with quite intimate, physical bodily functions, would much prefer the care of a relative to the uncaring, casual and sometimes off-hand and unreliable care that comes from a paid agency employee. I believe that the Government are also being stupid in that respect.
There is a middle course; namely, to require that social workers satisfy themselves on a professional basis that what is suggested is the right way forward. I would back the judgment of a professionally trained social worker who is accustomed to abuse cases and similar situations over that of the Secretary of State—and, indeed, of his staff—at any time. However, the regulation-making powers are there. I am confident that they will be extended by the next Minister for the disabled to cover that category of need.
Much of the effectiveness of the Bill will depend on guidance issued by the department, especially as regards support arrangements for managing direct payments by individuals in their new role as employers. Much of that guidance, in turn, will be informed by the technical advisory group which I know has been of great help to the Minister. Will the Minister be retaining that group as an expert body to examine progress on direct payments and to inform future guidance?
I welcome the amendment that we originally put forward which has been belatedly accepted. I regret that the Government are not progressing faster towards improving the situation of those over 65 years of age, especially as regards allowing local authority discretion. I also sincerely regret—and I believe this to be both perverse and very silly—that social workers will not be allowed to assess the propriety of a relative such as, for example, a niece or the partner of a nephew, to be employed in a caring relationship. Finally, we would like some information about the future of the technical advisory group.
Having said that, we welcome the Bill. It enshrines the principle that the disabled person is at the centre of his care network and not merely a dependant upon it. The disabled person is the one best placed to determine how his care needs are to be met, by whom and in what ways. We sincerely hope that the Bill will bring freedom, spontaneity and independence to disabled people so as to allow them to live their lives as they see fit and not as we judge fit for them. I very much hope that local authorities will be encouraged by the Minister to adopt such schemes.

§ Baroness Miller of Hendon
My Lords, we agreed from the start that we want to see a level playing field between people who receive direct payments and those 1424 who receive services when it comes to the contribution that they are asked to make to the cost of their care. I am pleased that your Lordships welcome the extra clarity that the amendments bring.
Perhaps I may briefly respond to the points raised by the noble Baroness, Lady Hollis. I am sure she will agree with me that the matters to which she referred are not directly related to the amendments now before the House. However, I am pleased to respond to them briefly. I thank the noble Baroness for the courtesy of giving me advance notice of the issues.
The noble Baroness wished to know why people over 65 were not considered in the beginning, especially as many of them work. We thought it right that those who first campaigned for the Bill—disabled people of working age—should go first and people over 65 should follow. I can confirm that the Government are committed to reviewing the eligible group when direct payments have been available for one year, with a view to extending it to people over 65. We believe that it is only sensible that we should wait until we know the outcome of that review, in particular whether any serious problems have emerged in the first year of operation of direct payments, before coming to a decision about extending eligibility.
The noble Baroness was concerned about the restriction on paying relatives and friends to provide a service. My noble friend Lady Cumberlege agreed to look carefully at the restrictions on paying relatives and friends. The Government reviewed their proposals in this area in the light of responses to the consultation. Our reasons for these restrictions were widely accepted. We have no specific plans to review these restrictions when direct payments are available, but I hope that the noble Baroness will be comforted by the knowledge that we shall of course monitor the implementation of this legislation and will consider whether any changes to the framework we are laying down are necessary in the light of experience.
I am pleased to tell the noble Baroness, Lady Hollis, that we believe that the technical advisory group's advice has been helpful. I am sure that it will continue to be so. We are committed to consulting the group in the preparation of the guidance on direct payments. As I have already explained, these amendments do not change the effect of the Bill but I hope they remove any doubt about the Government's intention. They respond to concerns raised in this House and elsewhere by introducing wording which matches more closely the wording of existing legislation.
On Question, Motion agreed to.