| Previous Section | Index | Home Page |
', a payment of such amount as, subject to subsections (2) and (3) below, they think fit.'.
No. 16, in page 1, leave out lines 13 to 20 and insert--
Mr. Tom Clarke:
I beg to move amendment No. 2, in page 1, line 24, at end insert--
Mr. Deputy Speaker (Sir Geoffrey Lofthouse):
With this, it will be convenient to discuss amendment No. 5, in clause 4, page 3, line 20, at end insert--
Mr. Clarke:
I am delighted to present the amendments to the House. I must again say that I regret that the Government deliberately staged this business on a day when we had very important talks in Northern Ireland. Without that devious approach, we could have had a very different result on the previous amendment.
My hon. Friend the Member for Darlington(Mr. Milburn) has already drawn attention to some of the inconsistencies between cash payments under the Bill and those under the independent living fund and the ILF transfer, in relation to some of the financial issues. There is another area where the Minister has failed to deal with inconsistency between the two types of cash payment. Under the ILF and its successors, disabled people may not employ close relatives as paid carers if they live in the same household. Payments are allowed when recipients live alone or when the person with whom they live is unable to meet all the care needs. The Minister has made it clear that he will use his regulation-making powers under subsection (4) to exclude a long list of family members, whether or not they live in the same household. It is an arbitrary list that includes sons-in-law, but not nephews; stepsons' wives, but not nieces; grandparents, but not great-aunts and uncles. Putting that right would be welcome, even though it would be contrary to the Government approach today, when they have resisted all logical argument.
Rather than having an arbitrary list defining who is and who is not a close relative and barring them from receiving payment as carers under the Bill, we should apply the same common-sense approach to this issue as applies under the independent living fund. We should give local authorities greater discretion than the Minister intends, to allow the employment of a close relative where that is clearly the independent choice made by the disabled person and where allowing that choice is clearly in the disabled person's best interests.
I entirely accept, as do local authorities, that disabled people should not be exposed to undue pressure from family members to spend their cash payments on employing relatives. Likewise, close relatives must be protected from pressure to give up other work to be paid to care for a disabled person. It is for those reasons that we accept that there should be a general presumption against turning informal care into paid employment. However, in the context of that general assumption, the scope for local authorities to exercise their discretion should be wider than the Bill proposes.
The Minister made it clear in Committee that he intends to issue section 7 guidance to exclude employment of close relatives. First, he proposes:
The evidence is that some disabled people choose to employ relatives because of a fear of being taken advantage of by a stranger coming into their homes or because they found it less embarrassing to have a relative assist them in certain areas of their very personal day-to-day lives. Indeed, those are some of the considerations that might prompt disabled people to take up direct payments in the first place. It is surely deeply inconsistent to introduce a Bill to give people greater choice and control in the provision of their own care and then to deny them the choice of employing a relative to provide personal care, which may be what they most want and need.
Disabled users told the authors of the ILF report that employing a relative allowed them to relax immediately; that they benefited from having a carer who was familiar and trusted; that they could benefit from an extra degree of flexibility from the carer; and that they could rely on a greater degree of consistency and commitment. Those are all important points; none of them applies across the board. Just as there are disabled people who would greatly prefer to employ a family member, so there are others who would not choose to employ a close relative under any circumstances.
The key is not whether people do or do not wish to employ family members; it is that they should have the freedom to make that choice. Our amendment does not give them unlimited choice. They still have to satisfy the local authority making the direct payment that their choice is a sound one. That is a good deal better than what the Government propose. It makes the decision on who should be employed subject to the same local authority discretion and the same professional assessment by social services staff as the decisions on how much care is needed and whether direct payments are appropriate in the first place. That is how it should be.
Mr. Alfred Morris:
Amendment No. 2 is a well-justified attempt to stop the Government excluding certain people from being hired as helpers because they are so-called "close relatives" or because they are living in the same household as the disabled person. The amendment provides effectively for an easing of the currently proposed ban on them.
The problem with the Government's list of who can and cannot be hired--as my hon. Friend the Member for Monklands, West explained--is that it includes some relatives who, in the real world, cannot really be termed "close". The surviving partner, a stepson, an aunt or a grandparent are examples.
It might be reasonable to exclude anyone who is already providing assistance to a disabled person and for whom extra help is being sought from the local authority, but that could exclude people receiving invalid care allowance and would not be appropriate in all cases. This raises the issue of how the invalid care allowance will be treated in relation to direct payments. About that there has been an ominous official silence which should now be ended.
Care will need to be taken in deciding who to classify as a partner. Is the classification to include gay or lesbian couples? How will disabled people be protected from a local authority that is over-officious or intrusive in determining whether a partner is indeed a partner?
To avoid the difficulty that the Government describe as "creating pressure for informal care to be put on a formal contractual basis" while also avoiding a hard list of excluded relatives, it might be possible to put the onus of proof on the local authority to show that the person the disabled person seeks to pay would provide the requisite care informally.
In relation to lodgers and other persons living in, the wording used throughout the passage of the Bill has been very worrying to many disabled people. As explained in paragraph 24 of the consultative paper and by Baroness Cumberlege, in Committee in another place, such people could not be paid
The wording suggests that that person would have to be hired as a helper and then given accommodation. That is far too restrictive. It would rule out direct payments to people taking in lodgers whom they subsequently decide to hire as helpers. There would be nothing improper in such a situation and, in my view, it should be allowed.
As far as the relative not living in the same household is concerned, it ought to be possible without treating it as an exceptional case--as proposed in paragraph 24 of the consultation paper--to employ a close relative who is and remains living elsewhere. The practice of employing family members not living in the same household has worked well with the independent living fund. Why should it not work with direct payments? Indeed, if complications are to arise in the case of direct payments being made to top up payments from the ILF, I should have thought it essential that the same rule should apply to direct payments as those applied to ILF payments.
'(2) If--
(a) an authority pay under subsection (1) above at a rate below their estimate of the reasonable cost of securing the provision of the service concerned, and
(b) the payee satisfies the authority that his means are insufficient for it to be reasonably practicable for him to make up the difference,
the authority shall so adjust the payment to him under that subsection as to avoid there being a greater difference than that which appears to them to be reasonably practicable for him to make up.
(3) In the case of a service which, apart from this Act, would be provided under section 117 of the Mental Health Act 1983 (after-care), an authority shall not pay under subsection (1) above at a rate below their estimate of the reasonable cost of securing the provision of the service.'.--[Mr. McLoughlin.]
'(4A) A person in receipt of a payment under subsection (1) above may secure the provision of the service to which it relates from a person, notwithstanding that that person is of a description specified in regulations under subsection (4) above, provided that the authority are satisfied that the person by whom the services are to be provided is an appropriate person.'.
'(3A) A person in receipt of a payment under subsection (1) above may secure the provision of the service to which it relates from a person, notwithstanding that that person is of a description specified
"local authorities should not make direct payments where the recipient intends to employ or contract with close relatives who live elsewhere".
Secondly, he proposes:
"Local authorities must give effect to the policy as manifested in such guidance, but they have discretion to make exceptions where the circumstances merit it. Where they do not act in accordance with such guidance they may be subject to legal challenge unless they can show good reason for making an exception."--[Official Report, Standing Committee D, 2 April 1996; c. 103-4.]
The Government have said that they will recognise
"good reason for making an exception"
where a user lives in a sparsely populated rural area or where a person might want to employ a family member for religious or cultural reasons. Those are good reasons, but there will be other cases, as the experience of users of payments from ILF sources has shown. The ILF published a report in 1992, "Cash for Care", which summarised much of that valuable experience.
"unless they are people who have been specifically recruited to be live-in personal assistants."--[Official Report, House of Lords,15 January 1996; Vol. 568, c. 411.]
That would preclude a person who has someone other than a close relative living in the household--a lodger or a friend, for example--from arranging with that person to become her or his helper.
| Next Section
| Index | Home Page |