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Mr. Bowis: It might assist the hon. Gentleman if I confirm at this point that nothing in the Bill will make illegal any scheme that local authorities and their legal advisers have deemed to be sufficiently legal to put into practice. Schemes that are in place now should not be affected. We are not seeking to undermine such schemes; they may continue. Local authorities must always check the legality of schemes with their legal advisers. I hope that the hon. Gentleman is not suggesting that illegal schemes are operating at present.

Mr. Clarke: I am extremely interested in the Minister's comments; we shall study his words very carefully. However, his remarks seem to be somewhat inconsistent with the response that he gave to my hon. Friend the Member for Wakefield, who raised the specific issue of people with learning difficulties and those aged over 65.

Mr. Bowis: The hon. Member for Wakefield (Mr. Hinchliffe) asked me whether someone who was young and physically disabled--such a person would qualify under the eligibility criteria on that basis--and who also had a mental illness or some other type of disability or need would be eligible. I said that that person would. It has nothing to do with any current schemes.

Mr. Clarke: I am grateful to the Minister for that intervention, but he has not addressed the issue of people with learning difficulties and those aged over 65 who benefit at the moment from indirect payments that are paid to them by a third party but whose future is now in doubt because, thus far, the legislation does not spell it out.

That brings us to the central problem with the Government's approach. In the consultation paper that they produced in January, Ministers made clear their preference for limiting eligibility--I shall quote carefully from that paper, as I wish to be fair to the Minister and to the Government--to

"Adults who are physically disabled (including people with sensory impairments), who are under the age of 65 and are able and willing to manage direct payments (with help if necessary). This does not exclude people with both a physical disability and another condition (such as learning disability). Those aged 65 or over who began to receive direct payments before age 65 could continue to do so after that age".

I shall cease quoting at that point because it is very important to register what the Government have said. The consultation document justifies that preference on the basis that

"Restricting the size of the eligible group will allow local authorities to test out direct payments on a limited scale, identifying and addressing any problems before the Government considers whether eligibility should be extended to others who are able and willing to manage direct payments".

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A case can certainly be made for testing direct payments: we recognise the value of a flexible approach there. However, the Government have gone about it in the wrong way. Ministers clearly accept the view that some local authorities are better placed than others to run direct payment schemes as they are already providing cash payments to disabled people through third parties, as I mentioned earlier. That is the basis of the Government's argument for making direct payments discretionary. Under the Bill, local authorities are not obliged to provide direct payments if they do not believe that they are ready and able to do so.

Some disability groups believe that access to direct payments should apply throughout the country and that councils should be under an obligation to make such payments available. We have a good deal of sympathy with that point of view. We believe that the services and the opportunities available to disabled people should not depend on where they happen to live. At the same time, we have listened to local authorities.

Sir Andrew Bowden: I refer the hon. Gentleman to the question whether local authorities should have the discretion to fulfil the wishes of local people. I think that organisations and individuals will bring such strong pressure to bear on local authorities that they will have no choice other than to operate the scheme. There are very influential disabled groups in Brighton in my constituency, and woe betide Brighton council--or any other local authority in the area--if it does not implement the full provisions of the Bill.

Mr. Clarke: I am delighted with the hon. Gentleman's intervention. As I proceed with my speech, he will find that we agree absolutely on that point.

We have listened to local authorities that have said that they want direct payments to be payable at the discretion of the council in question. We have also considered the evidence of a recent national survey--which I believe the hon. Member for Brighton, Kemptown (Sir A. Bowden) will welcome--which was conducted for the British Council of Organisations of Disabled People by the Policy Studies Institute. It found that more than 90 per cent. of responding authorities would make direct payments if they were confident that legislation permitted them to do so.

Direct payments are likely to be so successful and efficient that we believe that all local authorities will want to join the system within a very short period. My hon. Friend the Member for Darlington (Mr. Milburn) will explore, in winding up today for the Opposition and in Committee, what can be done to avoid a patchwork of provision in different parts of the country.

If Ministers are to sustain the case for a discretionary scheme, they must follow the logic of that case to its proper conclusions. They propose to exempt those authorities that are least able to undertake direct payments from any immediate obligation to do so. However, at the same time they are preventing those authorities that are best placed to undertake direct payments from providing them to all those who are able and willing to take them up.

I have already mentioned the Opposition's concern about Ministers' reluctance to take the opportunity to clarify the position of existing third-party schemes--some

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of whose recipients include people aged over 65 and those with learning disabilities but no physical disability. Associated with that is our concern that the freedom of all local authorities to provide new cash payments will be inhibited by unnecessary exclusions of those aged over65 and those who are not physically disabled. If it is right that local authorities should have the discretion to decide whether to have schemes and if the professional judgment of local authority social work and social services staff is the right basis for making decisions about individual cases, local authorities should have the discretion to decide whether disabled persons are willing and able to manage their own care and should meet with a positive response.

That view has overwhelming support, which will be borne out by the consultation process when Ministers are ready to publish the findings. For example, the British Council of Organisations of Disabled People said:

"Restricting eligibility is unnecessary and would be contrary to all principles of equality."

The council pointed out the difficulty created for local authorities in making judgments in relation to different kinds of disabilities. It also drew attention to the problem of being obliged to turn down people who are otherwise qualified and capable of receiving direct payments because of an exclusion imposed on the council by central Government regulation.

Equally, local authorities have not welcomed the Government's chosen method of limiting demand on the new schemes. The Association of County Councils and the Association of Metropolitan Authorities, representing councils responsible for the implementation of this measure, have pressed for the removal of what they regard as tight national constraints. The Disablement Income Group has outstanding experience in this field and has pointed out that one third of its clients of the original independent living fund were over 65. It points out that there is no logic or common sense in using retirement age as a boundary in limiting the right or assessing the ability of someone to make choices and to take control over his or her personal care.

I could go on, but I would have great difficulty in finding anyone--those representing disabled people, local authorities, social service professionals or care providers--who agreed with the Government's approach of blanket exclusions of whole categories of disabled people. This is a serious issue because, in principle, such blanket exclusions amount to discrimination. In practice, they prevent the further development of best practice, place artificial limits on the growth of direct payment schemes and run the risk of creating ludicrous anomalies. I have quoted the Government's preferred option from their consultation paper--which I shall repeat, for the sake of hon. Members who may have doubted that they heard me correctly:

"This does not exclude people with both a physical disability and another condition (such as learning disability)."

I refer to the hypothetical case of three disabled people who are seeking to take advantage of the opportunity to receive direct payments: one meets the medical definition of physical disability; another has learning disabilities; and the third has both physical disabilities and learning disabilities. Under Labour's approach, each person would be assessed on an individual basis and would be eligible to receive direct payments if he or she were found to be able to and willing to manage his or her care.

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Under the Government's approach, the individual with a learning disability but with no physical disability would be automatically disqualified from consideration as the Bill now stands. The individual with both physical impairment and learning disability would qualify to be considered. That is surely an anomaly, and one that was never satisfactorily explained in another place or in the Minister's speech today.

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