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Lord Swinfen: Before I make up my mind on what I intend to do—I have a feeling that my noble friend Lord Mackay and I are still some distance apart—would my noble friend be prepared to meet me between now and Report stage so that we could consider whether we can thresh out this matter a little further and come to some kind of understanding?

Lord Mackay of Ardbrecknish: I am always happy to meet my noble friend and discuss the issues. But if I were to meet him, I should endeavour to persuade him that I am right. I should not hold out any hope that he would be able to persuade me that he is right.

Lord Swinfen: I am sure that my noble friend would endeavour to use his powers of persuasion on me as I would try to use mine on him. Having had that assurance from my noble friend, it is fair to let the Committee know that I advised him earlier that I did not intend to test the opinion of the Committee on this amendment. It is a very important matter and it should not be dealt with in a great hurry.

I do not know what my noble friend Lady O'Cathain will do with her amendments. She may agree that my amendment covers the same ground. However, if she decides to move her amendments I shall support her in the Lobbies. My noble friend will make up her own mind in due course.

My noble friend Lord Campbell of Croy said that he felt that disability discrimination was different from race and sex discrimination. Of course it is, but the principle is the same. One discriminates in employment against someone when one takes into account factors such as race, sex or disability and not the competence of the person to do the work.

The National Disability Council only has an advisory role. It has no powers to advise individuals or employers, only the Minister; it has no power to carry out independent research and very little in the way of resources; it also has no independent members of staff and no powers with regard to employment.

I thank all those who took part in this debate. It has been extremely useful. I intend to come back to the matter at Report stage and therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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5.30 p.m.

Lord Mackay of Ardbrecknish moved Amendment No. 102:

Page 17, line 9, at end insert ("and persons who have had a disability").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Baroness O'Cathain had given notice of her intention to move Amendment No. 103:

Page 17, line 13, at end insert:
("( ) The Council may assist (financially or otherwise) the undertaking by other persons of any research, and any educational activities, which appear to the Council necessary or expedient for the purposes of subsection (2).").

The noble Baroness said: Having received assurances from my noble friend the Minister I shall not move this amendment.

[Amendment No. 103 not moved.]

[Amendment No. 104 not moved.]

Lord Swinfen moved Amendment No. 105:

Page 17, line 18, at end insert:
("( ) In discharging its duty under subsection (2) (a) of this section, the Council shall have a particular duty to advise the Secretary of State on the measures necessary to prepare for the repeal of section 29(6) (a) of the National Assistance Act 1948 and for the conferring on social services authorities of the power to make cash payments to a disabled person in lieu of the direct provision of services under section 2(1) of the Chronically Sick and Disabled Persons Act 1970.").

The noble Lord said: Amendment No. 105 relates to a different matter. It is a probing amendment.

In April 1988 the Disablement Income Group, with the then Department of Health and Social Security, set up the Independent Living Fund to administer cash payments to severely disabled people to assist with the costs of personal care and domestic assistance. That followed the replacement of supplementary benefit by income support which effectively ended many payments previously made to disabled people in respect of their additional disability costs. By the time the fund closed at the end of March 1993, 21,500 severely disabled people were receiving payments which averaged £105 per week.

The earmarking of cash payments to disabled people by the Independent Living Fund raised the profile of this whole area of provision. Since then, disabled people have been actively involved in promoting and developing cash payment schemes with their local authorities. However, because of the illegality of direct payments from local authorities to individuals, those schemes have taken the form of indirect payment schemes which have used third party organisations to support user-managed care. The latest research report by the Disablement Income Group—An Opportunity Lost? Social Services use of the Independent Living Transfer— revealed a notable increase in the interest shown by social services departments in third party personal assistance schemes.

Third party organisations are increasingly being used by local authorities as legally acceptable mechanisms for making direct payments to individuals who wish to

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purchase their own care. Most of the recent schemes studied by DIG channel local authority money through a voluntary organisation which provides a support system rather than just "laundering" the money. Providing personal assistance support services is an important adjunct to any direct payments scheme. The research also confirmed that there is widespread support among local authorities for changing the law to allow for direct payments.

Clearly, several issues need to be resolved as the framework for direct payments is created. Those include consideration of how the money will be audited and how support structures for recruitment and management of individual employees can best be provided. Questions will also arise concerning eligibility, financial ceilings and thresholds, and the interface between nursing and personal care. Then there are a whole series of issues concerning the employment conditions of personal assistants, including their status in employment terms and the obligations of individual employers who would be the disabled people concerned.

All those and more will need to be resolved before a framework can be established. Nevertheless, in my view it is crucially important that those moves are legislation-led, which is why the new clause is so important. I believe that my noble friend's department has been working on this matter and I hope that he can give me and others in the Committee some assurance that it is moving forward. I beg to move.

Lord Rix: I suspect that the Minister, when he replies, may be minded to say that the principle of direct payments to disabled people has been accepted; it is now being developed by officials and fits a little uneasily into a Bill dealing with discrimination. I therefore want to take the opportunity provided by the noble Lord, Lord Swinfen, to anticipate unfair discrimination in this area.

While it may be true that the standard model of support for people with learning disabilities is a staffed group home and local authority day centre, that is not the whole story. There are already within the existing rules service brokerage arrangements which put the funding into the hands of advocates, supporters, parents and so forth who are close to disabled persons and who make it their business to understand their needs and secure tailor-made solutions to those needs.

Just as people with severe physical disabilities may need a partner, advocate or agent to help them handle the sometimes complicated business of being a disabled person, so may someone with severe learning difficulties. If and when direct payments begin, I hope that the scheme will not discriminate against people with learning disabilities, but that they will be included in the scope of the arrangements. That option will provide advocates, carers and brokers with the opportunity to agree with the disabled person in the light of what they are known to enjoy and to dislike, in the case of those unable to speak, what would be the most appropriate, and then to go out and buy it.

The heart of community care is assessment of individual needs, followed through into individual support packages. That is as true for people with

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learning disabilities as it is for people with physical disabilities. Anything that moves us closer to securing that, such as direct payments and service brokerage, is to be commended. That is why I support the amendment of the noble Lord, Lord Swinfen.

Baroness Darcy (de Knayth): I give my wholehearted support to this amendment and added my name to it. As one who has been involved for what seems like many years fighting long and hard to achieve this aim, I support it and hope that the Minister will be able to say something encouraging to us when he replies.

Baroness Hollis of Heigham: We also strongly and warmly support the amendment. It will allow local authorities, where they deem it appropriate, to pay cash rather than provide services to their disabled clients. Why? There are two broad reasons.

First, it places the disabled person at the centre of the care system rather than making him or her dependent upon it. Direct payment means that services are fitted to the needs of the client because the client purchases them, rather than fitted to the needs of the service. For example, someone with severe spinal injuries may be dependent on help to go to bed. If that person is dependent on a service being provided by the local authority, then that person would have to fit into the timetable of the person provided by the local authority. If it is said that the disabled person must go to bed at eight o'clock, nine o'clock or 11 o'clock, then that is when they go to bed. Whereas, if the disabled person is purchasing the services she or he will determine when they go to bed, when they get up, and whether or not they go out. The services are tailored by her or him to meet her or his needs rather than to fit inevitably the needs of the providers. That allows the disabled person to enjoy the spontaneity in her or his life that we all take for granted.

Because a disabled person would employ the carer if there were cash payments she or he would control what the carer does. That is important. As an Independent Living Fund client said, if you are paying for it, you can get what you want. When we are talking about quite intimate tasks—toileting and the rest—it is appropriate that the disabled person should choose because she or he can pay the person who performs those services rather than be dependent on a kindly flow of strangers who may change from week to week.

Therefore, the first reason for supporting the amendment is that it puts the disabled person at the centre of care and ensures that she or he gets the services that she or he wants at the times she or he needs them and provided by the people she or he chooses to suit her or his needs. By definition, if a local authority is doing it for the disabled person, she or he is dependent on what the local authority can do at any particular time.

The second reason for supporting the amendment is that it offers better value for money. If a disabled person can make a direct payment, she or he can use that sum of money to float a whole network of care, formal and informal. She or he can pay the petrol, can offer a bottle of wine, can provide chocolates, can meet expenses and as a result get very many more hours of support and

27 Jun 1995 : Column 648

care for the same sum of money than she or he would get if those services were provided by an individual. The same money can be stretched because the disabled person can broker it around a whole network of people, some of whom will be paid by the hour, some of whom will be paid expenses and some of whom will not be paid but will nonetheless get the occasional gift.

That is why the amendment is so warmly supported by all the disability organisations, by the local authorities and by the Association of Directors of Social Services. Indeed, as the noble Lord, Lord Swinfen, said, local authorities are so keen to provide this additional service that around two-thirds of them have set up trusts to launder the money. The local authority pays the money to the trust and the trust pays it to the disabled person. It is not legal at the moment to make a direct cash payment—I forgot, it is not legal in England but it is perfectly legal in Scotland. Perhaps the Minister can tell us why it is legal in Scotland but not legal in England. That means that we must provide the system which disability organisations and local authorities urgently want.

What are the objections to the amendment? Some time ago the noble Lord, Lord McColl, introduced a direct payments Bill into the House. The opposition was said to be the Treasury which had insisted that local authorities provide services and that the DSS provide cash and that the lines between the two should not be confused. That argument would be a little more powerful were it not already the case that those lines are confused. Local authorities already pay cash to foster parents; they already pay cash to children leaving care; they already pay cash to voluntary organisations to aid disabled people. Most of them—two-thirds of them at the last survey—were already paying cash into trusts in order to make direct payments to disabled people.

No one suggests that direct payments are suitable for everyone. Perhaps one person in a thousand is receiving care services in the community and perhaps only one-tenth of those in turn might want direct payments. Many elderly people might much prefer services rather than cash. No one is saying that they must have cash. Very often the people asking for this right will be younger people with spinal injuries who managed their own affairs but following a traumatic accident are unable to do so. They would be able to take control over their own lives and be independent. Direct payments would empower them. As Sir Peter Large once said:

    "Direct payments makes the difference between a life in which most of your choices are made by others and a life in which you can mostly choose for yourself".

That is the difference which direct payments would make. I know which choice all of us would prefer. With this amendment we can offer that same choice to disabled people.

5.45 p.m.

Lord Campbell of Croy: The noble Baroness, Lady Hollis, has touched on the point I was going to raise. I am afraid that I have not had time to give my noble friend the Minister notice of it and I quite realise that he may need time but it is my understanding that direct payments are legal in Scotland. That is because the

27 Jun 1995 : Column 649

Scottish legislation concerning local authorities is different and the whole administration by the Scottish Office of local authorities is different. I supported in principle the Bill introduced by my noble friend Lord McColl a year or two ago and I made the same inquiry then. My understanding is that direct payments have worked quite well in Scotland but the Scots make up only one-tenth of the population of the United Kingdom. If the system is working there I hope that the Government will look sympathetically at changes south of the Border, though I would not wish to interfere with what is going on south of the Border.

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