§ 8.3 p.m.
§ Lord Ashley of Stoke
My Lords, I beg to move that the Bill be now read a second time. The Bill seeks to reverse a recent decision of the Law Lords which will have a devastating effect on the lives of disabled people. It is a decision as perverse as it is damaging; a decision which undermines the law as we have all known and understood it for 27 years. It is a decision which will force many disabled people to surrender their cherished independence at home and spend their days in institutions of residential care, in some cases at greater expense to the local authority.
The word "devastating" is not mine—although I agree with it—but that of the Royal Association of Disability and Rehabilitation. Its deep concern is shared by some 30 voluntary organisations in a consortium called "Needs Must". It has undertaken splendid work on this issue. Its concern reflects that of millions of disabled people who now face a life of disappointment, doubt and anxiety.
I have met disabled people who are deeply distressed at the withdrawal or reduction of services. The voluntary organisations are sending me many examples. The extent of the damage already caused, and even more the damage to be caused, by the ruling is not yet generally understood by the public or, indeed, by Ministers.
The ruling creates an Alice in Wonderland world where, with resources affecting assessment of need, it becomes theoretically possible for a paraplegic to have no needs—and you cannot get more bizarre than that! If a local authority states that it has no money—and some have done so—when it is assessing a person's needs it can conclude that there are no needs. That is the logic of it.
702 The ruling also means that unmet need is suddenly obliterated. It has been magicked away by redefining "need". The only words which the Law Lords in their infinite wisdom forgot were—and, according to my grandchildren, they are used for magicking anything— "abracadabra" or, alternatively, "izzy whizzy, let's get busy". One way or another they magicked away an unmet need. I believe that that is scandalous because it means that if the need is unmet and unknown no one knows the extent of the unmet need and no one knows whose needs are not being met. That hiding and masking of the problem is a terrible consequence of the ruling.
There is a serious risk of the unhealthy situation of no one knowing the real needs of disabled people and the extent to which those needs are met. The ruling takes us back 30 years to the days when the problems of disabled people were hidden behind net curtains. I cannot believe that in 1997 that is progress of any kind, even by a stretch of the Law Lords' imagination.
This saga began in 1970 when, skilfully piloted by Alf Morris, the Chronically Sick and Disabled Persons Act went on the statute book. Among other things it aimed to end the scandalous lottery that meant that disabled people received help in the home, not according to their needs, but according to where they lived. That was the lottery in 1969 and previously.
Those of us who sponsored the Bill and worked on it with great intensity knew what we wanted because we knew what disabled people needed. We were in touch with those disabled people—in fact, they visited the House of Commons and the House of Lords. In Section 2 of the Act we provided that local authorities should provide such things as practical assistance in the home, alterations and adaptions, special equipment, and meals on wheels. Once a local authority had assessed the needs of a disabled person it had to make arrangements to provide the services required. Those objectives were endorsed by Parliament. The great legislative step forward was widely welcomed throughout Britain and envied in other countries. It has been accepted without demur for all these years and has enriched the lives of countless disabled people.
Although we know that some local authorities were careless in carrying out the law and did not do their duty by disabled people, the Act was a potent force benefiting disabled people. However, in a distressing turn of events, which has become known as the "Gloucestershire judgment", the whole basis of the law has been seriously undermined. Mr. Michael Barry is 82 years old. He had a stroke and several heart attacks, he is visually impaired and he uses a zimmer frame. He had been assessed as needing services from the Gloucestershire council. It provided him with a home carer twice a week for shopping, collecting his pension, laundry and cleaning, with meals on wheels four days a week.
He was informed by the council that the resources allocated by the Government were inadequate and services must therefore be reduced. Mr. Barry sought a judicial review in the High Court which granted a declaration that the council had acted unlawfully. The Court of Appeal agreed with the High Court and also held that the council was not entitled to take account of its resources when assessing need and providing for it.
703 That was the nub of the problem. When the case was referred to the House of Lords, the Law Lords had to decide whether a local authority could take into account its own resources when assessing a disabled person's needs for those services listed in the 1970 Act which I mentioned.
The crucial word was "need". The Court of Appeal had held that "need" was an ordinary word, the meaning of which could not be affected by the level of resources. The Court of Appeal held that local authorities could not take resources into account when assessing need. Nevertheless, the Law Lords thought differently and overturned the ruling by three to two—a highly controversial decision. For me, one of the dissenting Law Lords, the noble and learned Lord, Lord Lloyd of Berwick, put it in a nutshell. He said:Every child needs a new pair of shoes from time to time. The need is not the less because his parents cannot afford them".Likewise, the need of disabled people cannot be wished away by the poverty of local authorities. The requirements of the 1970 Act are clearly that such needs should be met and it is for the local authority to meet them.
Providing for disabled people in the community has been on a par with other statutory requirements of local authorities: it has to be done. I note that there is no mention of taking resources into account with other duties, so why should that be so in the case of disability? Is it the case that disabled people are now to be pushed to the back of the queue, as usual?
The 1970 Act removed the lottery of people receiving different services according to where they lived. The effect of the Law Lords' ruling is to restore that lottery and again provision will depend on where disabled people live and the relative wealth of their local authority. But, as the noble and learned Lord, Lord Berwick, said:Parliament cannot have intended that the standards and expectations for measuring the needs of the disabled in Bermondsey should differ from those in Belgrave Square".In my view, there is no doubt about what Parliament intended, nor any doubt about disabled people's needs. Those needs were precisely the same the day after the Law Lords' judgment as they were the day before. There was no difference in the needs of those disabled people on 19th March and on 21st March.
The day before the judgment on 20th March those needs were met by the local authority, as they have been met for nearly 27 years. Therefore, there can be no question of extra new costs if the Bill before the House is passed. We simply revert to the position as everyone has known and understood it for all those years. That is a crucial part of the argument. We simply revert to the position on 19th March 1997. I hope that no one will suggest to the House that there are massive extra costs involved in the passage of the Bill: there are not. We merely seek to restore the law to what it was on 19th March, one day before the judgment.
From where would any extra costs stem? There are none. Anyone who wishes to argue about extra new costs should produce evidence of them as the situation 704 was on 19th March. I await evidence from anyone who is opposed to, or even lukewarm about, the Bill. The argument about costs is absolutely bogus.
I commend the Bill which specifies that a local authority's resources cannot be taken into account either in making an assessment of need or in making arrangements to meet need. That is the position that has worked satisfactorily for 27 years. The passage of the Bill will ensure that local authorities observe the spirit as well as the letter of the 1970 Chronically Sick and Disabled Persons Act. The Bill will ensure that disabled people have restored to them the right to essential services on which they rely so heavily. I commend the Bill to the House.
§ Moved, That the Bill be now read a second time.—(Lord Ashley of Stoke.)
§ 8.16 p.m.
§ Lord Swinfen
My Lords, I am delighted to support the noble Lord, Lord Ashley of Stoke, in this Bill. As the House knows well, he has a long and distinguished career both here and in another place in working for people with disabilities.
I hope also that the party now in power will give him the help which it gave to me over the past 15 years when I have tried to improve the lot of disabled people. The noble Lord deserves its help more than I deserved the help which it so richly gave to me over the past 15 years. I should be very disappointed if his party is not prepared to help him now.
The complex and confused state of the law relating to community care makes it extremely difficult to give appropriate and accurate advice to disabled and elderly people. While the decision a few weeks ago in the Gloucestershire case may have clarified the position for local authorities, it has exacerbated the anxieties and uncertainties faced by people with disabilities.
The decision of your Lordships' Judicial Committee was by a majority of three to two. Even the most distinguished lawyers in the land are divided as to the correct interpretation of the law. Therefore, we should all be most grateful to the noble Lord, Lord Ashley of Stoke, for bringing forward this Bill which will clarify the position. It will make it clear that a local authority's resources have no relevance to the assessment of a disabled or elderly person's need for community care services.
One of the principal aims of community care is to meet the needs of people with disabilities rather than fitting those people into existing services. That cannot be achieved without proper individual assessment of need, without taking into account any extraneous factors. I am convinced that Parliament did not intend that the standard and expectations for measuring needs should differ in various parts of the United Kingdom. The passing of the Chronically Sick and Disabled Persons Act in 1970 was a noble aspiration. Having willed the end, Parliament must provide the means. This Bill gives us that opportunity.
Without this Bill being passed into law, the working of the Carers (Recognition and Services) Act 1995 will be under threat. Already I am advised that many carers 705 are being prevented or dissuaded from having an assessment of their needs. If the eligibility criteria are tightened, fewer carers will be entitled to ask for an assessment and the situation will be exacerbated.
Carers and their disabled or ill relatives will be placed at increased risk in the community without support. Carers already save the state an estimated £34 billion per year. If, as a result of the judgment in the Gloucestershire case, support is reduced to disabled people and their carers, that will probably be very costly to the health and well-being of both people with disabilities and those who care for them; and, ultimately, very expensive to the public purse. I strongly support the Bill.
§ 8.20 p.m.
Baroness Darcy (de Knayth)
My Lords, I should like to add my enthusiastic support to this small Bill which, strictly speaking, is and should remain unnecessary. It makes clear beyond reasonable doubt the duty of the local authority under Section 2 of the Chronically Sick and Disabled Persons Act 1970. The noble Lord, Lord Ashley of Stoke, was an eloquent supporter of that legislation during its passage through the other place in 1970. In his comprehensive and masterly introduction of his amendment Bill tonight, the noble Lord showed that he was very clear as to the meaning of Section 2 of that Act.
The noble Lord quoted the eloquent yet practical dissenting speech made by the noble and learned Lord, Lord Lloyd of Berwick. The noble and learned Lord was also very clear that it could not have been Parliament's intention that a local authority could say, "Because we don't have enough resources, we are going to reduce your needs". The needs remain exactly the same. Nor could Parliament have intended, to repeat the words of the noble Lord, Lord Ashley, that these needs were gauged differently in Bermondsey or Belgrave Square.
Indeed, the architect of the Chronically Sick and Disabled Persons Act, Alf Morris, showed that he was very clear as to the intention of Section 2 when in an article in The Times of 26th May he referred to a,perverse … ruling by the Law Lords which allows local authorities to circumvent the statutory duty to provide home care appropriate to the individual needs of disabled people".I made my maiden speech on the Second Reading of the Chronically Sick and Disabled Persons Bill in this House. I can assure your Lordships that, so far as I am aware, none of us at any time during the passage of the legislation intended that the duty to provide appropriate care could depend upon the availability of resources.
The Second Reading of that Bill in this House was on 9th April 1970. The noble Earl, Lord Longford, in his comprehensive explanation of the Bill, referred (at col. 241 of Hansard) to Clause 2, now Section 2, as being, "mandatory beyond dubiety". So we have the interpretation of Section 2 very clearly expressed in Hansard.
The noble Lord, Lord Ashley of Stoke, portrayed very graphically the concern felt by disabled people and disability organisations. It is bad enough that the Law 706 Lords' ruling has allowed local authorities to use the argument about the lack of resources to determine a disabled person's need; it is surely intolerable to go further and remove help from the disabled person after his or her needs have been recognised and have been met and after those needs have been reassessed and found to have remained unchanged. That is what happened in the case of Mr. Barry.
There is grave concern that the duty imposed by Parliament in relation to giving disabled people the support that they need to remain living outside institutions is being degraded into a mere power to help if there are sufficient spare resources. The fact that local authorities have a general duty to act reasonably does not, I think, provide much of a safeguard. All that this seems to do is to make a hotch-potch—a witches' brew—out of needs and resources: if there were no resources, could it not be argued, as the noble Lord, Lord Ashley, indicated, that it was reasonable for a local authority not to meet any need however great?
I find this particularly worrying because, in general, neither the funds collected through the council tax nor the funds provided by central government are earmarked for particular purposes. Local authorities are thus free to place a high priority on, for example, environmental conservation and the very lowest priority on helping disabled people. I am in no way knocking environmental conservation, but, let us face it, there is nothing particularly sexy about community care. Indeed, much more excitement is created by the threat to fell a beautiful tree than by the announcement of a cut in the supply of incontinence pads. As a paraplegic of 30 years' experience, I know that you cannot become more continent simply because the local authority is strapped for cash.
I return for the last time to the submission made by the noble and learned Lord, Lord Lloyd, who acknowledged that the decision by a majority of only three to two, as has been said, had allowed Gloucestershire and other local authorities to escape from an impossible position—the position of being given a statutory duty but not the wherewithal to perform it. The noble and learned Lord said that he could not help wondering, however, whether local authorities would come to regret the decision as much as Mr. Barry did. He said that the solution lay with the Government.
As the noble Lord, Lord Swinfen, said, the passing of the Chronically Sick and Disabled Persons Act 1970 was a noble aspiration. Having willed the end, Parliament must be asked to provide the means. That is what the Bill seeks to achieve. As the noble Lord, Lord Ashley, said, it would restore the status quo to what Parliament clearly intended in 1970 and what was in effect the position until the Law Lords' judgment of 20th March of this year. I hope that the Minister will bear that very much in mind when she comes to reply. I also hope that she will be able to respond, if not with enthusiasm, at any rate in a positive and constructive manner.
§ 8.25 p.m.
§ Lord Addington
My Lords, the Bill is only a one-page document, but its effects, if it were to be rejected, would be incredibly wide for one simple reason: virtually all the legislation in the field is based around the fact that there are needs and so there is a demand to be met, and not around the fact that there is a limited supply of resources to meet the demand. That is something which runs through every single type of support legislation for people with special needs and learning disabilities; indeed—you name it—it is a theme which runs through. It is something which has been apparent in every debate that we have had. Individual needs—and this is a strong point as stated originally by the noble Lord—are the most important aspect.
We are talking about people who are separate units and none of them is the same. Without the type of legislation that states that you cannot say that because you have problems balancing your budget you can cut something away, every single gain in the field is under threat. The current Government have joined with me and many others speaking in tonight's debate time and time again to state quite clearly that this was good; indeed, that has happened on numerous Bills. Moreover, the principle underlines other legislation.
The code of practice for special educational needs is specifically designed to say that certain needs shall be met; it does not mention a budget. If the Bill is rejected on grounds that resources dictate whether attention will be paid to a person's needs, what will happen when the education department ultimately says, "We haven't got enough money"? I shall understand if the Minister says that that proposition is outside her brief. Nevertheless, I give her my assurance that the question will not disappear because I shall personally return to it.
Every time you say, "We can't do this because it costs money", you actually undermine the value of someone's individual rights. If the Government are about to say that they cannot accept it because there are insufficient resources available, I should point out that the noble Lord, Lord Ashley, dealt with that response clearly in his introduction. Indeed, he stated that we are not asking for new money; we are asking for money that has been used before. That aspect is something to which I and my colleagues drew attention during the last election but, there again, we were not listened to quite well enough.
Unless you underline the fact that this type of legislation is designed for people's needs, you will actually take away most that is good about it. I say that because unless you are determined to treat individuals on an individual basis, you are removing virtually every consideration. If the Government have that intention, I ask them now at least to give notice as to when they will be announcing whether these restrictions will be included in other pieces of legislation. If that is to be the case, I can assure them that they will be hearing a lot more about the subject from these Benches. I hope that the Government are prepared to accept the Bill and state quite clearly that they are returning to the aim of meeting the individual needs of individual people with certain problems.
§ 8.30 p.m.
§ Lord McColl of Dulwich
My Lords, I, too, add my congratulations to the noble Lord for introducing this Bill. This is one of many proposals with which he has been associated, all designed to improve the quality of life of disabled people.
The problem we are discussing this evening follows the withdrawal of services from many elderly and disabled people in Gloucestershire because of an overspend in its budget, not because there has been any change in the needs of the disabled people. There is also an apparent inconsistency in provision of these services throughout the country due to a lack of agreed national standards.
One of the first questions which we must surely ask is, if the money is not available in some areas but is in others, what is the money being spent on? In other words, how are local authorities deciding on their priorities? In helping them to determine priorities, what guidelines will the Government give them and how will the Government monitor their performance?
It is quite clear that the vulnerable group that we are discussing this evening need the provision for which they have been carefully assessed. However, there is another reason for providing for their needs. Quite simply—this has been mentioned already—if one provides fully for their needs in one sphere, that may make them more independent and possibly reduce their needs in other areas. On the other hand if the needs of incontinent people, for instance, are not met, in the long run the total bill may be much higher than it would otherwise have been.
We ought to discuss another aspect of the whole subject of available resources. The pessimist always describes this as a lack of resources, whereas the optimist prefers to use the phrase "finite" resources. We should not neglect the great stimulus that finite resources have in compelling people to think and to work out the best way of using those finite resources in supplying the best service they can not only for disabled people but for patients suffering acute disease or injury. A good illustration of this is seen in hospital practice.
Some years ago in some parts of the country a hospital would see only one patient a month with a stab wound of the abdomen. As your Lordships can imagine, it is difficult to assess exactly how much damage has been done inside, not knowing how far the knife has been put in or what damage it has done. Therefore these patients have to undergo a major operation to have their abdomens opened up and carefully inspected to assess the damage and correct the injury.
However, in some parts of Africa it is possible to see 100 patients with stab wounds of the abdomen in an evening, especially a Friday evening. Clearly it is impossible to carry out 100 major operations in an evening. Therefore those who look after these people are compelled by finite resources to find the best way of dealing with the situation. They work out a way of detecting which of the stabbed patients needs a major operation and they become skilled at doing so. That policy results in only a few people having a major operation and therefore one avoids doing perhaps 709 90 major operations in an evening. Therefore one is doing much less damage and the overall results are better. At the end of the day one ends up with a much better deal and a much better standard of care. By having tight budgetary controls the mind is concentrated to give the best service and the best service is often a cheaper service. Perhaps that is what the Labour Government had in mind in the 1970s when they introduced cash limits into the National Health Service.
The hospital service relies heavily on ward sisters, for whom I have always had the greatest respect. They are ideal managers and they dispense the milk of human kindness. They constantly have to assess the daily or even hourly needs of their patients, for example how often their blood pressure and pulse have to be taken and how many dressings have to be applied. If, however, the sister is short of nurses on a ward on a particular day for one reason or another, perhaps because of illness or a flu epidemic, she has to adapt and reduce the amount of work that is done on some patients. Her assessment of their needs is separate from the resources but inevitably, as she is assessing the needs, that merges imperceptibly into her decision of how to deploy her resources most effectively.
On a similar theme, there is an interesting situation in the National Health Service now in that some purchasing authorities have issued a statement that they are no longer prepared to treat on the NHS patients with conditions such as varicose veins, lumps of fat—which we politely call lipomas—and various lumps and bumps. That is a significant departure. It will compel those patients to seek those operations in the private sector. It would be helpful to hear the Government's reaction to that and whether they agree with that policy, which has been determined at local rather than national level. There are many problems which we have to discuss in this difficult area. I look forward to hearing the Minister's reply.
§ 8.36 p.m.
§ Baroness Gould of Potternewton
My Lords, I too pay tribute to the work of the noble Lord, Lord Ashley, in bringing forward this Bill. I have listened with great interest to his views and to those of the other noble Lords who have spoken in this short but interesting debate. I welcome the chance to set out the Government's position on the Bill.
This Government are determined to improve the position of disabled people. Our manifesto made that clear. We want to improve community care services for disabled people, for other service users, and for carers. We want to improve those services, whether they are provided by the NHS, by social services, or indeed by any other agency. With that in mind, the manifesto confirmed our intention of developing a charter on long-term care services which we see as a way of ensuring people get the basic standards they can expect to lead a dignified life. We are developing our ideas on this. Our manifesto also made clear our intention to examine provisions for long-term care for elderly people. We shall make further announcements on these matters in due course. I shall be happy to pass the views 710 expressed by your Lordships to my honourable friend the Parliamentary Under-Secretary of State for Health. However, in the interim we must stress that local authorities' obligations to disabled people under Section 2 do not change.
The Government believe strongly that work is the best form of welfare. We are committed to giving opportunities to work for sick and disabled people who have some capacity to do so, in the same way as we are doing for lone mothers. Over the coming months we will be looking to see what changes are necessary to ensure that the particular needs of people who have disabilities are provided for.
The Government clearly demonstrated their commitment to promoting the principles of equality of opportunity and defending the rights of all its citizens at the Intergovernmental Conference. Despite the short time the Government have been in office, they supported a new treaty Article 6a designed to combat discrimination based on sex, racial or ethnic origin, religion and belief, disability, age or sexual orientation. Just as importantly, the UK sponsored a declaration to be appended to the treaty in respect of Article 100a, one of the articles which governs the harmonisation of the EU single market. The declaration requires the institutions of the Community to take account of the needs of disabled people when drawing up measures under Article 100a. Together, these changes represent an important advance in ensuring that the interests and needs of disabled people are taken into account across all the member states of the European Union.
The Government have considerable sympathy for the aim of strengthening social services for disabled people which so clearly underlies this Bill. However, we do not believe that the route which the Bill proposes to take to achieve that aim is the right one.
To explain why this is so, I need to rehearse some of the history behind the Bill. I hope that your Lordships will forgive me for going over ground which has been covered by previous speakers.
Section 2 of the Chronically Sick and Disabled Persons Act 1970 places social services authorities under a duty to arrange certain services for individual disabled people where they are satisfied that that is necessary to meet their needs. The services concerned include practical assistance in the home; provision of recreational facilities; assistance in arranging adaptations to the home, or the provision of additional facilities designed to secure greater safety, comfort or convenience; holidays; meals; and the provision of a telephone and any special equipment necessary to enable the disabled person to use it.
The Act has long been recognised as a milestone in legislation affecting disabled people, and I would wish to pay tribute to those—including my noble friend Lord Ashley—who were instrumental in achieving its successful passage through Parliament. I know that many of your Lordships took part in the celebrations of the Act's 25th anniversary in 1995.
I took particular note of the points made by the noble Baroness, Lady Darcy (de Knayth), and my noble friend Lord Ashley of Stoke, in respect of the interpretation 711 of the Act. It has been the understanding of successive governments that local authorities are able to take their resources into account in assessing a person's need for the services listed in Section 2 of the Chronically Sick and Disabled Persons Act and deciding what services to arrange. It is important to note that the circular issued shortly before the Act came into force in August 1970 stated,Criteria of need are matters for the authorities to determine in the light of resources.The thrust of this debate has been the judicial review case brought against Gloucestershire social services in 1995, fully detailed by my noble friend Lord Ashley. Last year the challenge was upheld in the Court of Appeal. However, noble and learned Lords in this House, I appreciate by three to two, overturned the Court of Appeal's interpretation of the law in a judgment given on 20th March of this year. That is to say, the legal position has been confirmed to be that which the Department of Health, since 1970, has believed to apply: that authorities may take their resources into account in assessing the needs of a disabled person and deciding what services to arrange.
However, it is important to emphasise that the judgment does not give authorities a licence to stop providing services. But resources are only one of the things that should be taken into account. They must still take into account all other relevant factors. They cannot use pressures on resources as an excuse for taking an arbitrary or unreasonable decision.
Nor does the judgment mean that local authorities are no longer under any duty towards disabled people. Once a local authority has decided that it is necessary, in order to meet the needs of a disabled person, to arrange a service listed in Section 2, then it is under a duty to arrange it. That has not changed.
The noble Lord, Lord Swinfen, expressed concern that the Gloucestershire judgment would affect carers' rights under the Carers (Recognition and Services) Act 1995, and that they will not be able to obtain assessments. That is not the case. The Carers (Recognition and Services) Act gives carers who provide regular and substantial care the right to ask for an assessment of their ability to carry on caring when the person for whom they care is being assessed. The authority must take the results of the carer's assessment into account when deciding whether or what services are provided to the user. That is not changed by the Gloucestershire judgment.
The Bill introduced by my noble friend Lord Ashley seeks to reverse the effect of the ruling of the noble and learned Lords in the Gloucestershire case. If enacted, it would prevent authorities from taking account of resource considerations in assessing needs and deciding what services to arrange. They would be able to take resources into account only when deciding how to arrange services to meet the needs they have identified. Unfortunately we do not live in a world where resources can be ignored. In recognising that fact, the Government have embarked on a far-reaching review of spending priorities. Now is not the time to 712 require authorities to ignore resources. Nor, I believe, would it generally be seen as fair to single out one particular group of people for this treatment.
§ Lord Addington
My Lords, if the Minister will give way, perhaps I may say this. The singling out of people is exactly the point that I sought to make. Most of the legislation does not take resources into account. At least that was our understanding when the legislation went through Parliament. That is the problem. A new precedent is being created where resources are being taken into account.
§ Baroness Gould of Potternewton
My Lords, I must disagree with the noble Lord. I do not think that this measure states that. If one considers the evidence from the Association of Directors of Social Services, it has expressed its concerns that such action would create a protected group within the population of those with community care needs who would have the right to services without regard to resources, to the certain detriment of other users. We share that concern.
Why, for instance, should resources not be a consideration in deciding on the non-residential services to be provided under Section 2 when they are a consideration in deciding on residential services which are not provided under Section 2? I regret to say to my noble friend Lord Ashley that I cannot accept his argument, nor that of the noble Lord, Lord Addington, that the Bill will not lead to a significant increase in expenditure and that it would simply ensure that existing good practice is enshrined in legislation. Resources have always been relevant to the level of need provided for.
We know, for example, that pressures on local authority budgets in recent years have led them increasingly to concentrate social services on those with the need for the most intensive support. As a minimum, the Bill will require them to undo those changes. However desirable that might be thought in principle, it would undoubtedly have a cost.
The Bill could well do more than merely undo recent changes. It is difficult to produce a precise and accurate figure for what the total cost might be if the Bill were to come into force this year or next. However, the Department of Health estimates that it could be a substantial sum and that is not something for which existing spending plans provide. Relatively modest increases in activity could have significant cost implications for local authorities. Authorities would be able to meet this only by diverting resources from other groups—such as children at risk—or from other services, including other services to disabled people. Again, the Association of Directors of Social Services has written to the Government to express its serious concerns about the substantial costs which it considers could arise as a result of this Bill.
It is important to recognise, too, that the Bill would not produce simply a one-off increase in expenditure.
713 The noble Lord, Lord McColl, referred to finite resources. However, there is no finite list of services which might be provided under Section 2. For example, ways ofsecuring greater safety, comfort or convenience in the home",will change over time, particularly as new technologies develop, with the result that the needs which disabled people might be assessed as needing will also increase. This would put a continuing pressure on authorities to find more resources.
It is for those reasons that we regret that we cannot support the Bill. Nevertheless, I stress our concern that there should be an improvement in community services. I have taken careful note of all the suggestions made in this debate as to how that might be done. We shall keep community care legislation, including that which applies to disabled people, under careful review. There may be a case for change. But the best time for decisions on that will be when we are clear about the direction of other developments, such as the actions that are likely to result from our examination of long-term care for the elderly.
Although we cannot support the Bill, we understand the concerns that are behind it. To respond to the noble Lord, Lord McColl, my honourable friend in the other place, the Parliamentary Under-Secretary of State for Health, will shortly be making an announcement as to how he intends to reinforce local authorities' understanding of their continuing responsibilities to disabled people under the CSDP Act. As I said, we shall continue to keep community care legislation under careful review.
§ 8.50 p.m.
§ Lord Ashley of Stoke
My Lords, I should like to thank everyone who took part in this short but very important debate. I am especially grateful to the noble Lord, Lord Swinfen, the noble Baroness, Lady Darcy (de Knayth), and the noble Lord, Lord Addington. All three have been consistent and persistent campaigners on behalf of disabled people. I can only guess at their response to the reply that we just heard. The matter will no doubt be raised on another occasion.
I thank my noble friend Lady Gould for coming to the Dispatch Box and explaining the Government's point of view. As she is not merely my noble friend, but my friend, I want to take the unusual step of exempting her personally from what I am about to say. I mean that. She has been a spokeswoman for the Government and must not take my next comments personally. I know of her tremendous personal commitment to the cause of disabled people. She is now excluded from my remarks.
It is traditional and habitual for supporters of the Government to be restrained when criticising the Government and exaggerate when attacking one's opponents. I intend to maintain that tradition of restraint. I am shocked at the inadequacy of the Government's response to this Bill. I cannot believe that a Labour Government are actually saying that they reject the Bill and support the present situation, which leads to outright discrimination against disabled people. I am shocked, 714 and I am horrified. I never expected such a blank refusal to take any action on this vital issue. I find it very hard to believe. The Government really will have to think again.
Let me deal with a few points raised by the Government. They say they are determined to improve the position of disabled people. That is fine; we accept their words. But the best way of improving the position of these disabled people is to support the Bill. The Government say that they are working on ideas in relation to disabled people. How very kind! We have already worked on the ideas. In the Bill that we propose the ideas are already worked out. There is no need to work on ideas, no need to consider the problem. The answer is in this short Bill, described by the Law Society as "succinct and comprehensive". It simply reverses the Law Lords' judgment and takes us back to the position as it was on 19th March, when disabled people were being provided for at no great expense. That is all the Bill seeks to do; but that is very important.
The Government say that in the coming months they will see what is necessary. They do not need to see what is necessary. The statement suggests that this debate might never have taken place. There have been some outstanding speeches, apart from my own. They have been succinct, clear, eloquent and powerful. The Government simply cannot say, "We are now going to see what is necessary", as if people did not speak. The words of the debate will appear in Hansard tomorrow. They have been spoken and they will be there in black and white. The facts and opinions have been brought forward in the House of Lords. The Government cannot say that they will see what is necessary as if no debate had taken place.
The Government say that they are proud of the amendment in Article 6a in the European treaty. That is fine. I was among those who asked the Government to bring in the amendment. It helps in matters of discrimination and I congratulate the Government. It represents a beginning in Europe. But if they want to tackle discrimination not merely on a European level, the best way of tackling it is by backing this Bill. The effect of the Law Lords' judgment is to discriminate against disabled people in their own homes. There could not be worse discrimination than that. The Government should think again.
The Government say that this Bill is not the best route. In that case they should suggest an alternative, realistic route. Instead of expressing vague generalities about thinking, considering and assessing the matter in the future, they should tell us what they intend to do. I know that they have been in office for only a short time. But they have had time to assess the 1970 Act and the way in which it has been working. It is not good enough to say simply that this is not the best route.
I am afraid that the Government are utterly wrong when they say that the understanding of governments is that local authorities could take resources into account all these years. If the Government believed, when they were in office 18 years ago, that the resources should be taken into account by local authorities, they should have said so during that time. There is no point in stating 715 now, after 18 years out of office, that they believed resources were being taken into account. The fact is that if local authorities were taking resources into account, they were breaking the law. The law was clear and categorical. It is the Law Lords who have now changed that by their ruling. If the Labour Government were so assured when in office that local authorities were taking resources into account, they should have objected. Any Government should object to the law being broken, by local authorities or anybody else.
The Government referred to a circular. Circulars do not matter all that much. They are advisory, they offer guidance etc. But the law is the law; and local authorities should have observed the law. In fact, most did. They had been making provision for disabled people in accordance with the 1970 Act. It has been a patchwork; it has not been applied as assiduously and perfectly as it should have been. Nevertheless, local authorities have been making these provisions.
I am afraid I have spoken for rather longer than I had intended. I wanted to emphasise the fact that I exempt my noble friend, my great friend, Lady Gould from the remarks I have just made. It was a comment on the Government.
The final and crucial point is this. The Government stated tonight that this Bill will lead to significant amounts of money being made available. That is totally wrong. It does not matter what calculations civil servants in the Department of Health make. They are wrong. The Government must respond to the challenge that I put forward. On 19th March, a very short time ago, there was no massive financial commitment, no great drain on resources. So we come to 21st March, after the Law Lords' judgment. Where does that massive demand come from? All we ask is to go back a couple of months. There is no phenomenal demand.
716 It is quite wrong for the Government to say that massive amounts of money will be involved with this Bill. I remind the Government that it was the Labour Party in opposition who derided the Department of Health when the Berry Bill outlawing discrimination was going through the other place. It was the Department of Health which said that it would cost a fortune—I have forgotten the actual figure; I think it was £1 billion or £1.5 billion. The figure was plucked from nowhere. It was quite unrealistic. The Labour Opposition rightly derided the department for manufacturing a grossly inflated and exaggerated figure.
The Government make the claim about large amounts of money being entailed under the Bill but they should think again. If they insist, they should produce the evidence for their claim. If the evidence is there and massive amounts of money are involved, we shall think again. But we want the evidence. Until we have that, the Government must reconsider.
This problem will not go away. I have seen enough disabled people suffering to convince me. I have received fax after fax from the RNIB and other societies about people who are suffering now. And it is only the beginning. The flood will come when more people are denied vital resources. I hope that the Government will think again. I ask the House to support the Bill.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.